Calabrese v. Calabrese

• Decision Date: 30 August 1996
• Citation: 452 Pa.Super. 497,682 A.2d 393
• Parties: Susan C. CALABRESE v. Michael P. CALABRESE, Appellant. Jennifer C. CALABRESE v. Michael P. CALABRESE, Appellant.
• Court: Pennsylvania Superior Court

Page 393

682 A.2d 393

452 Pa.Super. 497

Susan C. CALABRESE v. Michael P. CALABRESE, Appellant.

Jennifer C. CALABRESE v. Michael P. CALABRESE, Appellant.

Superior Court of Pennsylvania.

Argued June 11, 1996.

Filed Aug. 30, 1996.

James K. Jones, Carlisle, for appellant.

Mary A. Etter Dissinger, Marysville, for appellees.

Before TAMILIA, JOHNSON and MONTEMURO ^*, JJ.

JOHNSON, Judge:

Michael P. Calabrese (Husband) appeals from the order that directed him to pay $3,805 a month in spousal and child support for Susan C. Calabrese (Wife) and his daughter, Christie. Husband also appeals from the order that directed him to contribute to the expenses incurred for his daughter Jennifer's college education. We affirm.

In conjunction with a divorce action, Wife filed a petition requesting spousal and child support on March 14, 1991. The support order has subsequently been modified several times. After hearings on April 24 and May 31, 1995, the current order was entered requiring Husband to pay $2,655 a month for Wife and $1,150 a month in child support for Christie. This represents a reduction in Husband's previous support obligations, which totaled $5,700 a month. This order also directed Husband to pay Wife $16,287 as reimbursement for tuition expenses related to Jennifer's first two years in college. Finally, the order authorized the parties to withdraw any funds necessary for future college expenses from a joint marital account that had been frozen in escrow pending equitable distribution. Husband now appeals.

Husband contends that the trial court erred in calculating his income and reasonable living expenses and, accordingly, improperly determined his child support and spousal support obligations. In addition, Husband maintains that the court erred in holding him responsible for Jennifer's college expenses.

When evaluating a support order, this Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. Strawn v. Strawn, 444 Pa.Super. 390, 393, 664 A.2d 129, 131 (1995). " 'Absent an abuse of discretion or insufficient evidence to sustain the support order, this [C]ourt will not interfere with the broad discretion afforded the trial court ... [.] Where there is insufficient evidence to support the trial court's order, the judgment is manifestly unreasonable and must be reversed.' " Id., quoting McKolanis v. McKolanis, 435 Pa.Super. 103, 105-06, 644 A.2d 1256, 1257 (1994). "[T]he assessment of the credibility of witnesses is within the sole province of the trial court." Brotzman-Smith v. Smith, 437 Pa.Super. 509, 514, 650 A.2d 471, 474 (1994). In addition, the fact-finder is entitled to weigh the evidence presented and assess its credibility . Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991),appeal denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied,506 U.S. 868, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992).

Both child and spousal support are awarded in the Commonwealth pursuant to the support guidelines promulgated by the Pennsylvania Supreme Court.

The guideline shall be based upon the reasonable needs of the child or spouse needing support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties' assets, as warrant special attention.

23 Pa.C.S. § 4322(a). However, when the combined net income of the parties in a support situation exceeds $10,000 a month, the guidelines are not equipped to apply. Thus, the court calculates support obligations in these instances using the formula first enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Rules Civ.Proc., Rule 1910.16-5(d), 42 Pa.C.S.A. The Melzer formula requires the court to consider the reasonable needs and expenses of the children and the respective abilities of the parents to pay the support obligation. Calabrese v. Calabrese, 448 Pa.Super. 166, 670 A.2d 1161 (1996). These calculations must be placed in the record to insure that " 'an actual dollar figure is determined as the reasonable needs and expenses of the parents and children.' " Id., quoting Racciato v. Racciato, 393 Pa.Super. 307, 309, 574 A.2d 625, 626 (1990). The Melzer formula follows:

                Mother's total     Mother's income available
                support         =    for support               x  child's
                                   --------------------------
                obligation         Mother's k Father's income     needs
                                   available for support
                Father's total     Father's income available
                support         =  for support                 x  child's
                                   --------------------------
                obligation         Mother's k Father's income     needs
                                   available for support
                

Melzer, supra.

The function of support is not to punish the payor spouse, but to fix an amount which is reasonable and proper for the comfortable support and maintenance of the spouse in need. Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991). "An award of support must be fair, non-confiscatory, and attendant to the circumstances of the parties." Strawn, supra, at 395, 664 A.2d at 132.

Husband first asserts that the trial court erred in calculating his income. When computing income available for support purposes when the payor owns his own business, the income must reflect the actual available financial resources of the payor spouse, and not the often fictional financial picture that emerges after taking into account any tax considerations. Heisey v. Heisey, 430 Pa.Super. 16, 19, 633 A.2d 211, 212 (1993). In addition, personal perquisites such as entertainment and personal automobile expenses that are paid by a party's business must be included as income for purposes of calculating income available for support. Id.

Husband is the president and 50% owner of Calabrese and Sons, Inc. In calculating his income, the record, including Husband's tax returns, reveals the following: Husband collected a salary of $201,935 in 1994. Husband also had interest income of $1,671, rental income of $1,560, and a tax refund of $1,517 that year, for a total 1994 gross income of $206,683. The trial court added $7,200, representing the value of a car leased by Calabrese and Sons for Husband's benefit, to this sum. After taxes, Husband's net income in 1994 was $161,628. In 1995, Calabrese and Sons, while restructuring a large amount of corporate debt, entered into a loan agreement with the Pennsylvania National Bank and Trust Company. This agreement limits Husband's total annual compensation from 1995 through the end of the loan period to $156,000. Thus, the trial court used this figure in calculating Husband's 1995 gross income. The court also added $7,200 (representing the value of the company car) to this figure, and included rental and interest income of $1,900. The court thereby found that Husband had a total income of $165,100, and a net annual income of $120,256, in 1995.

Husband avers that the trial court erred by including the value of the automobile in his income, since the car's value was already included in his "officers account" and reflected in his salary. There is no evidence in the record, however, of this account or of the inclusion of the automobile's lease in Husband's income calculations. It is clear that automobile expenses paid by a company for the payor spouse are properly included in the determination of the payor's available income. Heisey, supra. Thus, it was proper to include this amount when calculating Husband's income.

Husband also claims that $13,469.47 of his reported gross income consists of medical benefits paid for by Calabrese and Sons which benefitted the entire family and thus should not be included as income. Husband contends that these benefits were not, in fact, compensation as defined by Rules Civ.Proc. Rule 1910.16-5(b), 42 Pa.C.S.A. The benefits represent an additional perquisite of Husband's and are thus properly attributable as income. Heisey, supra. Moreover, because sections 4324 and 4325 of the Domestic Relations Code provide that a court could order Husband to pay for Wife and daughter's health insurance premiums, we find that this sum is properly included in the calculations of Husband's income.

Generally, earning capacity, not actual earnings, determines the ability to pay support. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). In the present case, however, the evidence does not support the conclusion that Husband has artificially limited his earnings in order to shield income from his support obligations. We find that the trial court reasonably determined that Husband's 1995 earnings, while a decrease from prior years, fairly represent Husband's current earning capacity. We conclude that the calculations regarding Husband's income and his ability to pay support are supported by the record, and we find that the trial court committed no abuse of discretion in this regard. Strawn, supra.

Wife claims in rebuttal that the court should have included in its calculations all sums that Calabrese and Sons took as depreciation deductions in 1993 and 1994. We disagree. In 1993, the corporation deducted $472,000 from its corporate tax returns as depreciation; in 1994, $183,000. Wife contends...