author: ULLMAN, J.,

text:
    Matthews v. Matthews

      C.P. of Berks County,
    No. 02116700

      HankJ. Uarke, for plaintiff.

      Terry D. Weiler, for defendant.
    November 25, 2013
   ULLMAN, J.,

A. Procedural Background

On November 8, 2012, defendant filed a petition for modification of an existing support order for these two children. Defendant was paying $2,310.00 a month for child support and sought to reduce this order.

A hearing was held on May 15, 2013 before a Berks County Support Master (the “hearing officer” in the support rules is referred to as a “support master” in Berks county parlance). The support master filed his report on June 11, 2013, and plaintiff filed timely exceptions on July 1, 2013. After a transcript was produced, support argument was set for September 16, 2013. At the request of defendant’s counsel, support argument was continued to October 15, 2013. Both sides filed argument briefs. Both side appeared at argument with counsel.

B. Legal Background

1. Calculating Support Income for a Sole Proprietor

The Superior Court has held that when calculating net income for support purposes, a trial court must first calculate real gross income; second, calculate monthly gross income per Pa.R.C.P. 1910.16-2(a); and, third, calculate monthly net income per Pa.R.C.P. 1910.16-2(c)(1). Berry v. Berry, 898 A.2d 1100, 1107 (Pa. Super. 2006). In determining monthly gross income, net income from a business is included; thus, unreimbursed business expenses may be deducted in determining monthly gross income but only where the court finds them to be bona fide expenses under support law. Id. In Berry, the Superior Court held that the trial court abused its discretion in allowing business deductions from the obligor’s gross income merely based upon “father’s expert’s bald conclusions that the deductions were appropriate.” Id.

All benefits flowing from corporate ownership must be considered in determining income available to calculate a support obligation. Fennel v. Fennel, 753 A.2d 866, 868 (Pa. Super. 2000). The actual disposable income of the parties counts “not the oft-time fictional picture” created by the application of federal tax laws. Id. (quoting Labar v. Labar, 731 A.2d 1252, 1255 (Pa. Super. 1999). The Superior Court has stated, “[w]e have held repeatedly that deductions or losses reflected on corporate books or individual tax returns are irrelevant to the calculation of available income unless they reflect an actual reduction in available cash.” Id.

The Superior Court has stated, “[w]hen a defendant operates a business of his own, it is frequently difficult to determine his actual income. The court need not accept as accurate the testimony of the defendant or the financial record of his accountant made from information furnished by the defendant. It could make its own deductions from the evidence and the accompanying circumstances.” Smith v. Smith, 426 A.2d 1184, 1187 (Pa. Super. 1981).

As demonstrated in these cases, when a defendant operates his or her own business, a defendant should come to a contested child support hearing prepared to justify with evidence deductions from gross income to a much lower net income for support purposes beyond a mere federal income tax return. Expenses, credits, exemptions, and deductions which apply to reduce gross federal income tax under federal tax laws do not necessarily apply under support law.

2. This Case

A party’s burden to justify a reduction in one’s income may appear cumbersome in the high volume support hearing model, but the law is that the deductions must be demonstrated to be bone fide before a court is to allow them and reduce support income, and, thus, child support. In our case, defendant owned his own business, employed three employees, and owned five total properties yet demonstrated virtually no knowledge of his own costs and expenses. A business owner is in the best position to prove his own business income, and the burden is on the defendant to provide enough information about his business expenses for a court to determine their validity and application under support law.

C. Trial Court Decision and Weight of Master’s Recommendation

The Superior Court has held that a support master’s recommendation is “only advisory and not in any way binding on the trial court.” Ewing v. Ewing, 843 A.2d 1282, 1286 (Pa.Super. 2004) quoting Goodman v. Goodman, 544 A.2d 1033, 1035 (1988). Additionally, “it is the ‘sole province and the responsibility of the court to set an award of support’ and even if the evidence before the Support Hearing Officer is adequate to support her recommendation, the trial court need not adopt it.” Id.

At argument and in his brief, defendant argued the wrong legal standard of trial court review of a master’s recommendation.

D. DISCUSSION

1. Mortgage Deduction from Support Income

Under the PA support rules, a party does not deduct mortgage payments from one’s income for support purposes. Pa. R.C.P. 1910.16-2(c). Obviously, an obligor cannot reduce the duty he owes to his children by choosing to buy a vacation home, or additional properties, and then reducing his income by these mortgage obligations. However, where a defendant’s income is his business income, then proven business expenses that actually reduce a defendant’s income may reduce his support income; and these expenses could include rent or mortgage payments on a building utilized for the party’s business.

In our case, defendant owns five properties including his home and a vacation/beach house in New Jersey. Plaintiff filed exceptions to defendant’s subtracting his mortgage payments from his support income, defendant listed mortgage payments on his taxes under his business expenses. However, on testimony, defendant testified that these payments were made on his New Jersey beach house. Similar to his testimony in general, defendant’s testimony regarding his mortgage deductions was not consistent. At one point, he claimed to have a mortgage on another property as well. However, under prompting from his counsel, defendant basically stated that his only mortgage was on his beach home with the caveat that he used that personal property as collateral to purchase one of his business properties, so he classified his vacation home loan as a business loan. This court agrees with plaintiff that how defendant’s accountant classified the mortgage payments on defendant’s tax return combined with defendant’s vague assertion that it is tangentially linked to business is not enough to justify deducting defendant’s payments on his New Jersey vacation house mortgage from his support income. Only bone fide business expenses directly tied to the business’s operation and income would qualify to reduce support income, and those facts were not established here. Therefore, this court shall add the $11,598.00 mortgage deduction back into defendant’s support income.

Defendant’s counsel, with apologies and rationalizations at oral argument, did attempt to introduce additional facts through his argument brief, but, as defendant’s counsel himself acknowledged, that practice is not allowed. Under the Pa.R.C.P. 1910.12 procedure, which Berks County has elected to follow, all facts must be entered into the record at the fact-finding hearing. One cannot enter additional facts through a legal brief at the support argument stage of the proceedings.

2. Other Business Property Deduction

Plaintiff filed exceptions to the master’s allowing defendant to deduct $ 3,994.0 for the reason of “rent or lease ... other business property” listed on defendant’s tax form. Plaintiff’s counsel’s questioning on this topic was sparse, and defendant counsel’s was non-existent. However, reviewing the transcript, it appears that plaintiff’s counsel interrupted defendant’s initial answer regarding this $3994.0 expense. Even though defendant bears the burden of justifying his income deductions, as plaintiff’s counsel moved off of this specific part of the tax return quickly during his questioning, he did not signal that this area was a contested issue like he did other areas. It is a close decision on this exception because defendant did not produce specific facts for this deduction. Yet, after reviewing the transcript and the exhibits, this court believes it is reasonable to deduce in context of defendant’s business as described in defendant’s testimony that this specific claimed deduction for rent or lease of business property, including equipment, is valid.

3. Professional Services Deduction

Plaintiff filed exceptions to defendant’s deducting $ 8,010.00 from his support income for legal and professional business services. This figure was, again, simply taken from defendant’s 2012 federal tax return. In comparison, plaintiff’s counsel established during testimony that defendant only reported paying $ 1,825.00 for similar services on his 2011 federal tax return. Defendant’s testimony as to what legal and professional business services he paid was unhelpful as he listed items which obviously do not fit in this category. Defendant testified that he did not believe the amount his business paid professional services significantly increased between the two years, and he had no explanation for the alleged increase in cash spent on professional services. Defendant’s only explanation was that he changed accountants.

The main professional service utilized by defendant’s business was tax preparation. Under the Pennsylvania support rules, personal tax preparation services are not deductible from gross support income for net support income. In this case, as defendant owns his own business, he personally benefits from the tax preparation done for his sole proprietorship which taxes are intermingled with his personal income taxes, so what portion of the services should be deductible are questionable.

Plaintiff argues that the court should utilize the lower 2011 professional services cost number. This court agrees that utilizing the larger suggested deduction has not been justified. Without proof as to which number is more accurate, this court believes it would be equitable to average the two numbers: 8,010 + 1825/2 = $ 4917.5. Therefore, $ 4917.50 shall be deducted from defendant’s support income for these expenditures.

4. Medical Insurance and Miscellaneous Deductions from Income

No exceptions were filed to the master’s recommendation regarding how much of defendant’s health insurance payments should be deducted from his support income, or whether his federal tax exemptions should reduce his support income, or whether his noncash charitable contribution of “used clothes and household furniture” should reduce his support income. Regardless, as no exceptions were filed to these income reductions, this court will adopt the master’s recommended findings in these areas.

5. Car Expenses as Deduction from Support Income

Plaintiff took exception to defendant’s reducing his support income by a large amount for business car expenses. Defendant sought to reduce his support income by $14, 451 by way of business car expenses. At the fact-finding hearing, defendant testified that he was ignorant as to what his specific expenses actually were but wanted to use the figure from his taxes. The figure offered, $14, 451 had been claimed as a federal income tax deduction as prepared by defendant’s accountant.

Under questioning, defendant testified that he owns multiple properties and occasionally uses his vehicles to drive between them; however, only one property is actively used for his chiropractic business. Additionally, defendant testified how far he lives away from his business location though this testimony was immaterial as a normal commute, going from home to the office, is not recognized as a legitimate income expense under either federal income tax law, or, more importantly, Pennsylvania support law. Lastly, defendant offered vague testimony about driving to clients for house calls as part of his business, but, when asked, refused to approximate an average amount of business driving he performed per month.

In his federal income tax form, defendant claimed only one of his two vehicles as a business expense. He only claimed 6,800 miles a year for his business usage. He testified that he paid approximately $2,400 in repairs for a failed car part during the last year. Overall, defendant failed to offer facts to justify reducing his support income anywhere near the $14, 451.00 in business car expenses he sought.

The support master stated in his recommendation that he “added one-half of the vehicle expenses of $4,687.00 as defendants vehicles were only used 50% of the time for business use.” Reviewing the record, it is difficult to ascertain where the master’s numbers come from. Defendant testified that he used both vehicles for business but only offered vague facts to support any deduction to his income for support. Defendant’s income tax exhibit lists only one of the two vehicles as being used for business purposes and lists that vehicle as being used 85% of the time for business.

Plaintiff filed exceptions to this finding and argues that $7,225.50 should have been added back onto the income as that would represent the 50 percent master’s finding. Although this suggestion is an approximation, this court believes that plaintiffs suggestion fits the record more accurately than the master’s final financial figure. Defendant only claimed 6,800 miles of business usage for the entire year. Defendant bears the burden of proving deductions from his support income and failed miserably to present accurate evidence to justify his claimed expenses. This court shall order that $7, 225.50 be added back into defendant’s income ($ 2538.5 more than the master’s recommendation); in effect, this court is granting defendant $7, 225.50 in annual business car expenses against his annual support income, which amount is more than fair based on the paucity of evidence defendant presented.

6. Rental Income

Plaintiff filed exceptions regarding the master not counting defendant’s rental income as part of his support income. Defendant testified that he rents out his full-time rental property for $850.00 a month and that he did so for a full twelve months in 2012. The court needs to set a fair support income/eaming capacity for defendant based upon the record. The defendant testified that he receives $850.00 a month in rents for his rental property, and the master found the defendant credible. Defendant’s tax exhibit contradicts his testimony as to how much rent he received in 2012, but defendant repeatedly testified as to ignorance and lack of responsibility for as this exhibit’s contents. Under these circumstances, the court shall accept the $850.00 a month figure as the most reliable indicator of this income.

Defendant did verify his taxes paid on that rental property as being $3,452.00, and this court is going to accept the $1,995.00 in repairs reported on his 2012 taxes and referred to in testimony as indicative of the yearly maintenance costs. Therefore, defendant’s income from his rental property is $10,200 - $3,452 — $1995 = $4,753.00 annually.

E. Summary

The support master found defendant’s tax return “self-explanatory.” After reviewing the record and considering argument, this court disagrees. It was unclear what many of the tax deductions were exactly and why they would apply to support income under support law. As the Superior Court case law cited above explains, federal tax returns are often fictional and need to be supported by evidence. Defendant filed his petition to modify to reduce his support but came into his fact-finding hearing almost completely ignorant of his own business expenses, unfamiliar with his own tax return, and declined to call his staff or his accountant or to produce documents to justify lowering his support income by all his alleged expenses and deductions as reported on his federal income tax return.

In accordance with this court’s findings based on the exceptions as delineated above, the defendant’s income shall be: first, $21,773.00 plus $13,278.00 plus $13,176 - $48,227 as the master recommended; second, in contrast to the recommendation, this court shall add $ 11,598.00 back for the unsupported vacation home mortgage deduction, $ 3101.50 back for unsupported professional services deductions, $ 7,225.50 back for unsupported business car expenses, and add $4,753.00 in rental income for a total of $74,905.00 net support income. Therefore, defendant’s monthly net support income would be $6,242.08. Plaintiff’s income of $3,759.33 plus defendant’s income of $ 6242.08 equals $ 10,001.40. Therefore, the total support obligation for two children is $ 1,981.00 per month, and defendant’s share at 60.23% equals $ 1193.16 per month plus $ 49.47 for a proportionate share of extra-curricular costs for a total of $1,242.63 a month plus $100.00 per month for arrears for a final total of $ 1,342.63 per month effective November 8, 2012

ORDER

And now, this 25 day of November 2013, in accordance with this court’s accompanying opinion, it is ordered that defendant’s exceptions are granted; and that defendant’s annual net support income is $74,905.00; and, therefore, defendant’s monthly net support income shall be $6,242.08. Plaintiff’s monthly net support income is $3,759.33. Defendant’s proportionate share of combined income and the total support obligation is 60.23%.

Furthermore, it is ordered that defendant’s basic monthly child support order shall be $1193.16 per month plus $49.47 for a proportionate share of extra-curricular costs for a total of $1,242.63 a month plus $100.00 per month for arrears for a final total of $1,342.63 per month effective November 8, 2012.

Defendant shall continue to be 100 percent responsible for medical insurance for the children while plaintiff shall pay a proportionate share of any unreimbursed medical expenses over $250.00 annually.

      . This court notes that support law not allowing mortgage payments deductions from support income makes perfect sense lest an obligor could simply choose to re-route his income from his children to his own pleasure by purchasing a second, beach house. Likewise, a sole business owner cannot do so under a thin business veil.

      . This court notes that defendant testified that he is also trying to rent out his New Jersey beach house, so that may be an additional income stream for him in the future.


source: Caselaw Access Project

author: BUCCI, J.,

license: Public Domain

text:
    West v. West

      C.P. of Berks County,
    No. 12-23598
    Pro Se plaintiff.

      Gerald S. Robinson, for defendants.
    November 27, 2013
   BUCCI, J.,

Following a custody trial in the above-captioned matter and in consideration of the evidence presented and the record, we hereby enter the following:

FINDINGS OF FACT, CONCLUSIONS OF LAW, DISCUSSION AND FINAL CUSTODY ORDER

FINDINGS OF FACT

1. Plaintiff, Deb S. West (hereinafter, “paternal grandmother”), currently resides at 309 North Walnut Street, Wemersville, Berks County, Pennsylvania.

2. Defendant, Garrett S. West (hereinafter, “father”), currently resides at 1003 Maplewood Avenue, Hopewell, Virginia with his paramour, Tiffany Kubina.

3. The whereabouts of Amber D. Stokley, (hereinafter, “mother) are presently unknown.

4. Mother did not participate in the custody trial.

5. The subject of the within custody matter is Nathan L. West, bom April 8,2005, who is the natural child of father and mother (hereinafter, “the child”).

6. The child has been diagnosed with ADHD.

7. The court could discern the child’s mental impairment during the in camera interview we conducted with the child.

8. The child had attended the Milton Hershey School, which is a residential school for children with special needs.

9. The child reported being abused by another student during his residency at the Milton Hershey School.

10. As a result of this, the child left the school.

11. There is a pending lawsuit against the Milton Hershey School over the purported abuse suffered by the child while a resident there.

12. Father and the child lived in paternal grandmother’s two-story home in 2012/2013. Father and the child occupied the second story and paternal grandmother occupied the first floor of the residence.

13. The parties’ relationship deteriorated in 2013 and ultimately the parties filed protection from abuse (“PFA”) petitions against each other before this court. We denied father’s PFA petition and granted paternal grandmother’s PFA petition, however we declined to evict father from paternal grandmother’s home. Instead, the final PFA order only excluded father from the first floor of the residence.

14. Paternal grandmother called the police after the entry of the PFA order, and the police asked Father to leave the home entirely.

15. As a result of paternal grandmother’s actions, which we find unreasonable under the circumstances, father and the child were rendered essentially homeless and were forced to reside in a motel room.

16. Thereafter, father and the child moved to Virginia to re-establish themselves, residing in Father’s paramour’s residence.

17. Although both father and paternal grandmother contend that they have been the child’s primary caretaker in mother’s absence, and while acknowledging that paternal grandmother has provided significant care, we find that father has been the child’s primary caretaker for the majority of the child’s life, excluding the time the child resided at the Milton Hershey School.

18. The child has resided with father excluding the time the child resided at the Milton Hershey School.

19. Father has secured employment and purchased a home in Hopewell, Virginia.

20. The child’s life has not been very stable.

21. Father is partially disabled as a result of an injury and he had been unemployed for an extended period of time.

22. Father apparently received a generous compensation as a result of a lawsuit against the party responsible for his injuries and impairment.

23. Father used the proceeds to purchase a nice, comfortable home in Hopewell, Virginia.

24. Father works out of his home, on the computer, for an internet-based company.

25. Father is in a positive relationship and his paramour appears to be a positive influence and helps to care for the child.

26. Father is more capable than paternal grandmother of providing a stable home environment and caring for the child’s needs.

27. Paternal grandmother’s conduct towards the child has been inappropriate during visits she had with the child after father relocated to Virginia.

28. Paternal grandmother’s conduct towards Father in the presence of the child prior to father’s relocation was inappropriate and alarming to the child.

29. Father provides the nurturing the child needs, which is supplemented by father’s paramour who also resides with father and the child.

30. Father is involved with the child’s school and other activities.

31. The child’s special needs are being addressed by professionals and father is following the recommendations of the professionals.

32. Paternal grandmother’s conduct during the period of time the child resided with her and her continued conduct following father’s relocation to Virginia has caused the child to be repulsed.

33. The child clearly expressed to this court that he does not wish to have contact with paternal grandmother.

34. Father has demonstrated the ability to maintain a loving, stable, consistent and nurturing relationship with the child and to address the child’s special needs.

35. Paternal grandmother has not had any significant periods of physical custody of the child.

36. Father has attended to the daily physical, emotional, developmental, educational and special needs of the child.

37. Father’s work schedule allows him to work from home when the child is not at school and father’s paramour is also an appropriate child-care resource and is available and willing to assist father care for the child.

38. There is a history of acrimony between father and paternal grandmother that would make co-parenting impossible.

39. Paternal grandmother has undermined father’s parenting efforts in the past.

40. Paternal grandmother’s conduct in the presence of the child demonstrates a lack of judgment on her part.

CONCLUSIONS OF LAW

1. Actions in child custody are decided under 23 Pennsylvania Child Custody Act, 23 Pa.C.S.A. §5321 et. seq. and the decisional law that flows therefrom.

2. The court has jurisdiction of the parties, the child, and the custody issues in this case. See 23 Pa.C.S.A. §5422

3. Paternal grandmother has standing to seek custody of the child. See 23 Pa. C.S.A §5324(2), (3).

4. “It is axiomatic that the paramount concern in any child custody proceeding is the best interests of the child.” Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). Kirkendall v. Kirkendall, 844 A.2d 1261, 2004 Pa. Super 55 (2004) (“The best interests of the child is our bedrock in this determination.”).

5. “Such a determination, made on a case-by-case basis, must be premised upon consideration of all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Alfred v. Braxton, 442 Pa.Super. 381, 385, 659 A.2d 1040, 1042 (1995)(intemal quotations omitted); Jackson v. Beck. 858 A.2d 1250, 1252 (Pa. Super. 2004).

6. In making a custody determination between a parent and a grandparent, the court shall consider whether the award of custody to the grandparent interferes with any parent-child relationship. 23 Pa. C.S.A §5328(c).

7. Parents have a “prima facie right to custody”, and in any contest between parents and third parties, the evidentiary scale is tipped in favor of the parents. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).

8. For purposes of a custody dispute, persons other than the natural parents are considered “third parties.” See Gradwell v. Strausser, 416 Pa. Super. 118, 121-23, 610 A.2d 999, 1001 (1992).

9. Even though grandparents are given special treatment regarding standing to bring a custody matter, once the grandparent enters the court after clearing the standing hurdle, they are considered third parties. Albright v. Commonwealth ex. Rel. Fetters, 421 A.2d 157 (1980).

10. “A third party cannot place himself in loco parentis in defiance of the parents’ wishes and the parent/child relationship.” B.A. and A.A. v. E.E., 559 Pa. 545, 550, 741 A.2d 1227, 1229 (2000).

11. When a grandparent brings a custody action against a parent, the court shall consider the factors enumerated under 23 Pa. C.S.A. §5328(a) and (c) in making a custody determination.

12. The principle of the parents having a prima facie right to custody is not dispositive of the ultimate custody determination, rather it merely instructs the trial judge that the nonparent bears the burden of production and persuasion and that the nonparent’s burden is heavy. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).

13. Awards of custody to third parties (including grandparents) are most frequently made when the child has been in the custody of a third party for a lengthy period of time and the parent is not in a position to provide proper care for the child. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512(1980).

14. The presumption in favor of parents over third parties is now codified in Pennsylvania’s Child Custody Law. See 23 Pa. C.S.A. §5327(b).

15. A parent’s ability to care for a child must be determined as of the time of the trial, and not based on past behavior at an earlier point in time. Hall v. Mason, 462 A2d 843 (Pa. Super. 1983); Bresnock v. Bresnock, 500 A.2d 91 (Pa. Super. 1985).

16. “Except under exceptional circumstances, no child should be cut off entirely from one side of its family.” McDonald v. Quaglia, 442 Pa.Super. 149, 155, 658 A.2d 1343, 1346 (1995) quoting Norris v. Tearney, 442 Pa.Super. 256, 248-49, 619 A.2d 339 (1993).

17. The weight given a child’s preference is based upon maturity and the ability to form a well-reasoned opinion. Bovard v. Baker, 775 A.2d 835 (Pa. Super.2001).

18. The child’s preference is not controlling. McMillan v. McMillan, 602 A.2d 845 (Pa. 1992).

19. The Child Custody Act enumerates sixteen (16) factors that this court must consider in determining whether to grant or deny any form of custody. See 23 Pa. C.S.A. §5328, discussed more fully below.

20. The court is required to consider all the factors set forth in 23 Pa. C.S.A. §5328. See 23 Pa. C.S.A. §5328(a); JRM v. JEA, 33 A.3d 647, 652 (Pa. Super. 2011) (“All of the factors listed in §5328 are required to be considered”).

DISCUSSION

In consideration of the above and in accordance with the requirements of the Child Custody Act, we consider the following factors in determining the best interests of The child. We consider these factors as they relate only to father and paternal grandmother, as mother is not presently participating in the within custody litigation.

1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. See 23 Pa.C.S.A. §5328(h)(l). Father and paternal grandmother have a highly contentious relationship.
2. The present and past abuse committed by a party or member of the party’s household, whether there is continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. See 23 Pa.C.S.A. §5328(h)(2). Both parties filed PFA petitions against the other. We dismissed father’s petition and granted paternal grandmother’s petition, but we did not find paternal grandmother’s allegations of abuse serious enough to warrant excluding or evicting father from paternal grandmother’s residence. We do not find any continued risk of harm to the child in father’s household.
3. The parental duties performed by each party on behalf of the child. See 23 Pa.C.S.A. §5328(h)(3). Father has demonstrated that he is willing and capable of performing parental duties on behalf of the child, whereas paternal grandmother has very little experience in caring for the child. This is especially important in this case, where the child has particular special needs. Father’s work schedule allows him to be present for the child.
4. The need for stability and continuity in the child’s education, family life and community life. See 23 Pa.C.S.A. §5328(h)(4). The child’s life has been tumultuous thus far, and the child has lived in a residential school as well as at various locations with father. Mother is absent from the child’s life. There has been little stability, although the child is now established in Virginia with father.
5. The availability of extended family. See 23 Pa.C.S.A. §5328(h)(5). This is not a factor that favors either party over the other under the circumstances of the case.
6. The child’s sibling relationships. See 23 Pa.C.S.A. §5328(h)(6). This is not a factor that favors either party over the other under the circumstances of the case.
7. The well-reasoned preference of the child, based on the child’s maturity and judgment. See 23 Pa.C.S.A. §5328(h)(7). The child has indicated his strong and unequivocal preference to reside with father. Although the child is relatively young, his reasons were sound and compelling. The child’s wishes are not dispositive of the ultimate issue of primary custody, but are being taken into consideration by the court.
8. The attempt of a parent to turn the child against the other parent (or party in this case), except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. See 23 Pa.C.S.A. §5328(h)(8). There was credible evidence that paternal grandmother has attempted to alienate the child from father.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs. See 23 Pa.C.S.A. §5328(h)(9). This factor favors father, who has demonstrated that he is capable and willing to care for the child and tend to the child’s needs, including his emotional needs.
10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. See 23 Pa.C.S.A. §5328(h) (10). Again, father has demonstrated to The court that he is willing and capable of attending to the child’s specific needs, which include his educational and special needs in particular.
11. The proximity of the residences. See 23 Pa.C.S.A. §5328(h)(ll). The distance between the residences is considerable, because father has moved once again to Virginia. This factor does not favor one party over the other, but does impact the feasibility of any shared custody arrangements.
12. Each party’s availability to care for the child or ability to make appropriate child care arrangements. See 23 Pa.C.S.A. §5328(h)(12). Father’s work schedule is flexible, which enhances father’s availability to care for the child, and father’s paramour is available to supplement father’s care in the event that father is not available. Paternal grandmother is retired, and is therefore also available to care for the child. This factor does not favor either party over the other under the particular facts and circumstances in this case.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. See 23 Pa.C.S.A. §5328(h)(13). There is a high degree of acrimony and tension between the parties, which would make any type of shared custody difficult or impossible. Since there is also considerable geographic distance between them, shared custody would not be possible even if the parties resolved their differences.
14. The history of drug or alcohol abuse of a party or member of a party’s household. See 23 Pa.C.S.A. §5328(h)(14). There was evidence that father had marijuana in his possession at some point and that paternal grandmother has a history of abusing prescription medication.
15. The mental or physical condition of aparty or member of a party’s household. See 23 Pa.C.S.A. §5328(h) (15). This is a major consideration in this case and it strongly favors father. Father contends that paternal grandmother has a long history of mental/emotional problems including depression and chronic fatigue syndrome which may evidence a bi-polar disorder. Father also indicates that paternal grandmother has a history of abuse of prescription medication. We find it noteworthy that father’s father was granted primary custody of father when the paternal grandparents separated. Father claims that paternal grandmother has a history of confrontational behavior with co-workers, which occurred during her employment with Verizon, and we find father’s contentions to be credible. We are convinced that paternal grandmother’s long-standing emotional problems are a significant impairment to her ability to have a normal, healthy relationship with the child.
16. Any other relevant factor. See 23 Pa.C.S.A. §5328(h)(16).

We have considered the above-listed factors and, moreover, we have evaluated whether paternal grandmother has overcome the statutory presumption that exists in the law in favor of parents (here father). The presumption in favor of parents over any third parties, including biological grandparents, is well-entrenched in the common law preceding the Child Custody Act. See V.B. and C.B v J.E.B. and C.C., 55 A.3d 1193 (Pa. Super. 2012) (noting the “well established legal principle that there exists a rebuttable presumption in favor of birth parents over third parties in custody disputes”).

Where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, the parents have a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interests will be served by an award to the third party.

Id. at 1199 (Pa. Super. 2012) quoting Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa. 2000). Paternal grandmother has not demonstrated, by clear and convincing evidence, that the child should not be with Father and instead should be with her.

Essentially, the Supreme Court determined, where circumstances do not clearly indicate the appropriateness of awarding custody to a non-parent, we believe the less intrusive and hence proper course is to award custody to the parents or parents.

V.B. and C.B v. J.E.B. and C.C at 1199 citing Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Because she has failed to overcome the rebuttable presumption in favor of awarding custody to father, we conclude that the only appropriate course of action is to allow the child to remain with father.

CONCLUSION

For all the forgoing reasons, we hereby enter the following final custody order:

FINAL CUSTODY ORDER

And now, this 27th day of November, 2013, the court hereby enters the following order:

1. Legal Custody. Garrett S. West (“father”) have sole legal custody of Nathan L. West, bom April 8, 2005 (hereinafter, “the child”).
2. Physical Custody. Father shall have primary physical custody of the child. Deb S. West (hereinafter, “paternal grandmother”) shall have partial physical custody of the child one Sunday per calendar month, for any four hour period between 9 a.m. and 4 p.m. that best accommodates the child’s schedule and needs.
3.Relocation. If you are planning to relocate with the child and your relocation will significantly impair any other party’s exercise of his or her custodial rights, you are obligated to provide a detailed notice and counter-affidavit by certified mail, return receipt requested to all individuals who have custody rights to the child at least 60 days in advance of the proposed relocation in compliance with 23 Pa. C.S.A. Section 5337. Appendix B is attached hereto and incorporated by reference.


author: GORBEY, /.,

text:
    Trzaska v. Trzaska

      C.P. of Lancaster County,
    No. 2013-01492; 1832 MDA 2013

      Kathleen E. Holmes, for plaintiff/appellee.

      Patrick J. Kurtas, for defendant/appellant.
    December 5, 2013
   GORBEY, /.,

Procedural history

This matter began on May 30, 2013 when Kelly L. Trzaska (wife) filed a complaint against Michael E. Trzaska (husband) for support for herself and three children, Luke, 8, Xavier, 7, and Kazimiera, 2. A support conference was held on June 24, 2013 and the resulting order recommended support in the amount of $1,801.85 per month, effective May 30, 2013. Husband filed a demand for hearing before the court on July 16, 2013. After the hearing, on September 11, 2013, the court entered a two tier order, covering the summer of 2013 when wife was unemployed and then the period starting on August 26, 2013 when wife had wages from employment. On October 10,2013, husband appealed the September 11,2013 order to the Superior Court. It is pursuant to this appeal that this opinion is being prepared.

Factual history

The parties were married on May 17, 2003, and separated on May 29, 2013. A divorce was filed on April 12, 2013.

Wife is 35 years of age. She has custody of the parties’ three children. Two are in school and one is in pre-school one day a week. Wife received a BA in psychology with a concentration on school psychology in 2001 and an MS in counseling in 2010. At the time of her marriage to husband she was working as a third grade teacher. At that time, she made $37,000 per year. Both parties agreed for her to be a stay-at-home-mother. Since Luke’s birth, she held only part-time jobs, such as an at-home business for sale of educational toys and babysitting. She currently works for the Chester County intermediate unit as a therapeutic staff support member, which means that she reads and follows plans for clinically diagnosed child clients. She has only one client at the Providence Elementary School with whom she meets Monday through Friday, from noon to 3 P.M. She makes $14.75 per hour. Another client has not yet been offered to her.

Wife is also an aide at the Children’s Outreach Program of the Brethren Church. She assists children in Bible class, tutors, serves breakfast, plays games, ushers them onto the bus, etc. Her work hours are from 6:30 a.m. to 9:00 a.m. every Wednesday, for which she is paid $8.60 per hour. She pays $20 for child care for the morning. This job is not available during the summer months. Because of her work, she has daycare costs for the youngest child of $106.00 a week, in addition to a security deposit and registration fee of $240. During the summer, the boys go to Bible Camp at a cost of $40 per day. Because she gets a 50% tuition reduction due to her employment, she pays $80 per month per child.

She also does five to ten hours a week of volunteer work at the Center for Community Peacemaking. In addition to the above, she checks in with Careerlinlc every day trying to find a full-time position.

Because of her lack of employment during her marriage, her teaching certification lapsed. As a result she needed to be re-certified as a teacher, which was accomplished in August of 2013. If a full-time teaching job opened up, she would be qualified to take it, and will be applying for such a job for the 2014-2015 school year. If she gets a job, the baby would have to be in full-time day care at $177 per week and she would need an after-school babysitter for the boys.

Husband did not testify about his employment situation, since the parties stipulated to his income as presented at the conference. He lives in a house with his father, to whom he pays no rent. He pays utilities and $600 per month on credit card bills. The house’s energy source is propane, for which he pays $126.00 twice a year.

Husband presented an expert witness, Teny Leslie, who has been a vocational rehabilitation counselor since 1987. His opinion was that wife was employable immediately in a full-time job, many of which, he asserted, were now available in the community. He opined that averaging out year round part-time jobs as well as full-time education connected support jobs which she was qualified for could provide $28,000 a year. If she acquired a job as a teacher, she could start at $44,000 a year. He did not take into account that one of her children is pre-school age or factor in a day-care offset. He did not interview wife at all for the preparation of his report, but relied on husband’s descriptions of her employment and abilities.

The court did not give wife an earning capacity as proposed by Mr. Leslie, but utilized her current wages for the purpose of calculating support.

ISSUES

1. Whether the court erred in failing to disclose the basis upon which it arrived at its support decision.

2. Whether the court erred by failing to consider the expert testimony, by not disclosing why it did not consider the expert testimony, and/or by substituting its findings for that of the expert witness.

3. Whether the court erred in its determination of defendant’s day care expense obligation.

ANALYSIS

Issue 1 — The court is charged with calculating a support obligation based on the relative incomes of the parties according to the guidelines. As set out in the Pennsylvania Rules of Civil Procedure 1910.16-1(b):

Amount of Support. The amount of support...to be awarded...shall be determined in accordance with the support guidelines which consist of the guidelines expressed as the child support schedule set forth in rule 1910.16-3, the formula set forth in rule 1910.16-4 and the operation of the guidelines as set forth in these rules.

This is the instruction which guides the court in its calculation of its support, once it has heard testimony and determines the relative incomes of the parties. The court may deviate from the guidelines only when there is an extraordinary circumstance contained in a case and then must set out on the record its reasons for the deviation. There is no specific instruction that the court must lay out in its order in detail when the guidelines are being used. In this case, husband’s income was agreed upon by both parties as being the figure presented by husband at the support conference. Its absence from the order does not affect husband in the slightest. The figure for wife’s income is contained in the order for both tiers. Husband can thus calculate the court’s method by referring to the guidelines which are set out in Rule 1910.16-4. The court did not err in this aspect of the case.

Issue 2 — A trial court has discretion to accept or reject a witness’ testimony, including that of an expert witness, and is free to believe all, part, or none of the evidence presented. In re Bosley, 26 A.3d 1104 (Pa. Super 2011). Certainly, it is clear that the trial court is under no obligation to delegate its decision-making authority to an expert witness. However, while a trial court is not required to accept the conclusions of an expert witness, it must consider them, and if the trial court chooses not to follow the expert’s recommendations, its independent decision must be supported by competent evidence of record. “To say that a court cannot discount uncontradicted evidence, however, is merely to rephrase the requirement that a child custody court’s conclusion have competent evidence to support it. So long as the trial court’s conclusions are founded in the record, the lower court [is] not obligated to accept the conclusions of the experts.” M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super 2010)

In this case, husband presented the testimony of a vocational expert, Terry Leslie, who opined that wife should be able to find a full-time job immediately. The court did not find Leslie’s testimony to be in the least persuasive. He never interviewed wife, depending instead on information from husband as to her education and abilities. He did not consider the fact that she had a preschool child at home and two young school age children. He did not consider that she would have to pay for day care for all three children. He did not specify how the “immediate” jobs would be suitable for her. On the other hand, wife’s testimony satisfied the court that she was doing the best she could to be employed productively. She had not worked during the marriage, with husband’s agreement, and therefore needed to be re-certified. That was unfortunately delayed by bureaucratic processing until it was too late for her to take a teaching position for the 2013-14 school year. She will be applying for a full-time position for next year. She has a support position with the Chester County School District. Her salary depends upon the number of clients she services; she has been offered only one, with whom she currently works on a daily basis. She is working at a Brethren Church facility every Wednesday morning during the school year. She visits Careerlink daily. She does volunteer work five to ten hours a week, but the court does not disapprove of this undertaking. This arrangement had been agreed to by husband, and also provides her with work experience and contacts possibly relevant to future employment. After almost ten years of unemployment, and having lost her teaching certification, the court cannot fault wife for not finding one of the jobs which Leslie believes can be found. The court therefore finds no error in its having used its own opinion and discretion and not accepting that presented by husband’s expert witness.

Issue 3 — Pennsylvania Rule of Civil procedure 1910.16-6(a) provides, in relevant part:

Child care expenses. Reasonable child care expenses paid by either parent, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their net incomes and added to his and her basic support obligation....

Wife testified to her child care needs. Her daycare costs for her daughter comes to $106.00 per week during the school year. This is a two tiered order. Between June 5, 2013 and August 26, 2013 wife is unemployed and has no child care costs, so husband has no child care obligation contained in his support obligation. During the school year, she has, cumulatively, child care costs of $3,816 and that amount has been allocated between the parties as required, with his portion added into husband’s support obligation. The court sees no error in this procedure, since there is no requirement that the court set out its calculations in any detail.

CONCLUSION

Based on the above, the court affirms all aspects of its order of October 28, 2013 pertaining to the spousal and child support obligation of Michael E. Trzaska.


author: HODGE, J.,

text:
    Boyd v. Boyd
    C.P. of Lawrence County,
    No. 101 of 2011, C.A.

      Frank G. Verterano, for plaintiff.

      John J. DeCaro, Jr., for defendant.
    October 7, 2013
   HODGE, J.,

Before the court for disposition is plaintiff’s Motion to Establish Burden of Production.

The plaintiff, Besty Weingartner Boyd (hereinafter, “wife”) and the defendant, Colin Morgan Boyd (hereinafter, “husband”) are husband and wife. The parties were married on March 19, 1998, and they are currently separated. Husband is the sole proprietor of a grass turf business incorporated under the name of Boyd Turf Industries, Incorporated (hereinafter, the “business”). Husband established the business prior to the parties’ marriage, but the increase in the value of husband’s business during the course of the parties’ marriage is an asset subject to equitable distribution.

Wife filed the instant Motion to Establish Burden on June 3, 2013, wherein wife asserted that because husband maintains exclusive control over the evidence necessary to establish the business’ value on the date of the parties’ marriage, husband bears the burden of presenting this evidence at the time of equitable distribution. Wife alternatively argues that if the court denies her request to place a burden of production upon husband, wife should be entitled to all documentation relied upon by husband to establish the value of the business on the date of the parties’ marriage. Husband contests that it is his responsible to produce evidence regarding the premarital value of the business and argues that wife is free to submit whatever evidence she believes is appropriate to account for the business’ value.

In determining the value of marital property, the court is free to accept all, part, or none of the testimony as to the true and correct value of property. Litmans v. Litmans, 673 A.2d 382, 387 (Pa. Super. 1996) (citing Aletto v. Aletto, 537 A.2d 1383 (Pa. Super. 1988). “[W]here the evidence offered by one party is uncontradicted, the court may adopt this value although the resulting valuation would have been different if more accurate and complete evidence had been presented.” Id. (citing Holland v. Holland, 588 A.2d 58, 60 (Pa. Super. 1991), appeal denied, 596 A.2d 158 (Pa. 1991). The Pennsylvania Divorce Code does not specify a particular method of valuing assets. An equitable distribution master and trial court must exercise discretion and rely on the estimates, inventories, records of purchase prices, and appraisals submitted by both parties. Smith v. Smith, 653 A.2d 1259, 1265-66 (Pa. Super. 1995).

In Smith, the parties disputed the master’s valuation of stocks gifted to wife by her father and a large inheritance wife received upon her mother’s death. Id. at 1265. At the equitable distribution hearing, wife offered the testimony of her investment broker to support wife’s valuation of her gifts and inheritance. Id. at 1266. Although husband challenged the validity of the investment broker’s testimony, the master, and subsequently the trial court, accepted wife’s evidence in determining the value of wife’s gifts and inheritance. Id.

On review, the Superior Court of Pennsylvania stated that “[w]ife had the burden of producing evidence of the increased value of the gifts and inheritance she received during the parties’ marriage since she had exclusive control over the relevant records.” Smith, 653 A.2d at 1267. The Superior Court further explained that “[w]ife met this burden by offering the expert testimony of her investment broker...[i]f [h]usband disagreed with [w] ife’s valuation, it was his burden to provide the court with an alternative valuation.” The Smith Court held that because husband failed to present any evidence to dispute wife’s valuation of the marital portion of wife’s gifts and inheritance, husband could not allege error by the trial court in accepting wife’s uncontradicted evidence. Id. at 1267 (when one party offers uncontradicted evidence of the value of a particular marital asset, a court may adopt that value even if the resulting valuation would have been different if more accurate and complete evidence had been presented).

Applying the well reasoned precedent from the Smith case to the case sub judice, the court finds that it is appropriate to place a burden upon husband to initially present evidence regarding the business’ value as of the date of marriage. As the sole proprietor and owner of the business, husband has exclusive control over the information necessary to value the business at the time of the parties’ marriage. It is unreasonable to expect Wife to obtain these documents because she does not have an ownership interest in the business. Thus husband bears the burden of establishing the business’ value at the time of marriage. In addition, wife is then able to present any evidence she believes is appropriate to assist the equitable distribution master in reaching a determination regarding the business’ value as of the date of the parties’ marriage. Should husband fail to offer sufficient evidence to establish a premarital value, the equitable distribution master can properly accept wife’s evidence as credible in this regard.

Consistent with this opinion, the court will enter the following order of court.

ORDER OF COURT

And now, this 7th day of October, 2013, with this case being before the court on a Motion to Establish Burden of Production, with Frank G. Verterano, Esquire, appearing and representing the plaintiff, Betsy Weingartner Boyd, and with John J. DeCaro, Jr., Esquire, appearing and representing the defendant, Colin Morgan Boyd, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. Plaintiff/wife’s Motion to Establish Burden of Production is granted.

2. Defendant/husband shall have the burden of initially presenting evidence at the equitable distribution hearing regarding the value of Boyd Turf Industries, Incorporated as of the date of the parties’ marriage.

3. Defendant/husband shall provide plaintiff/wife with all documents relied upon by defendant and/or defendant’s expert to value Boyd Turf Industries, Inc.

4. The prothonotary shall properly serve notice of this order and opinion upon counsel of record; upon any party not represented by counsel by regular mail or personal service.


author: PECK, /.,

text:
    Nace v. New Cumberland Zoning Hearing Board

      C.P. of Cumberland County,
    No. 12-6668

      Sarah E. Buhite, for appellant.

      Richard W Stewart, for appellee.
    October 15, 2013
   PECK, /.,

Before this court is an appeal by Molly K. Nace (“Nace”) from the decision of the New Cumberland Zoning Hearing Board (“the Board”) that revoked a zoning permit issued by the Borough of New Cumberland, Cumberland County, Pennsylvania (“the Borough”) in connection with the conversion of an existing detached garage into an efficiency apartment (“the Conversion”). At issue is whether Nace acquired a vested right in the use of her property and should have her zoning permit reinstated. For the reasons hereinafter set forth this court concludes that Nace did not acquire a vested right and, therefore, the decision of the Board must be upheld.

PROCEDURAL HISTORY

On May 1, 2011, Nace submitted a zoning permit application to the Borough for the Conversion. On November 22, 2011, Nace was issued a zoning permit by the Borough. Approximately six months later, on May 31, 2012, the Borough revoked the zoning permit stating that it had been issued in error because Nace had not satisfied the parking requirements of a Borough ordinance. Nace appealed the revocation with the Board and an evidentiaiy hearing was held on August 23, 2012. On September 27, 2012, the Board issued a written decision denying Nace’s appeal to reinstate the permit. On October 29,2012, Nace filed an appeal with this court and the Board certified the record on November 21, 2012. The parties filed briefs in support of their respective positions and this court heard argument from the parties on June 21, 2013.

STATEMENT OF FACTS

Nace was issued a zoning permit by the Board on November 22,2011. Nace began the Conversion on May 1, 2012 and the permit was revoked on May 31, 2012. Prior to the date that the permit was issued, Nace reported that she had spent $2,994.74 on building supplies at various home improvement stores. According to Nace, she spent the following during the period in which the permit was in effect: (1) $1269.90 on building supplies at various home improvement stores; (2) $1,400.00 on four windows and two doors at a building supply sale; and, (3) $500.00 on a deposit to connect water and sewer lines. Nace made no attempt to return or to resell the purchased items. Nace did not break purchases down by job or by property. Nace further reported she lost money for a loss of rent in reliance on the permit. The garage had been rented on a month to month lease for $100.00 per month. The tenant moved out in April of 2012 so that the Conversion could begin. After the permit was revoked on May 31, 2012, Nace spent $1,000.00 to complete the water and sewer line to avoid losing the $500.00 deposit.

Evidence presented at the permit revocation appeal hearing before the Board established that the Conversion would require that two parking spots be added to the property and that those parking spots be paved. The additional parking would be placed adjacent to the garage. Mike Wyckoff, a neighbor to the property of the conversion, testified and expressed concern for the safety of the high number of children that use the alley to access the nearby park and for the children who play in the alley. Mr. Wyckoff expressed concern that the placement of the additional parking of the conversion would put children in danger because the garage would create a blind spot for the vehicles as they backed out of those added parking spots. In addition, Mr. Wyckoff presented a petition signed by fifteen neighbors which stated their belief that the Conversion created unnecessary danger and safety issues for the neighborhood and its children, overcrowding of the land and drainage issues.

Pauline Eagle, another neighbor to the property of the conversion, expressed concern that the paving for the additional parking combined with the slight incline to Fourth Street would increase drainage of water onto her property that already experiences problems from water overflow. Ms. Eagle expressed concern that the additional parking in the alley may limit accessibility for emergency vehicles. She also testified to children playing in the alley. Brad O’Connor, another neighbor who lives across the street from the conversion, testified that any more parked cars in the area was going to cause big problems.

The Board found that the garage (that is the subject of the conversion) is located on an alley that is narrow and congested with traffic and children playing. The Board found that the parking for the occupants of the proposed apartment (of the Conversion) would not have sufficient site distance to safely back into the alley. Accordingly, the Board concluded that public safety would be adversely affected by the Conversion.

DISCUSSION

This court’s scope of review is limited to a determination of whether the Board committed an error of law or abused its discretion. Roseberry Life Ins. Co. v. Zoning Hearing Bd. of City of McKeesport, 664 A.2d 688, 693 (Pa. Cmwlth. 1995). An abuse of discretion occurs when the Board’s findings of fact are not supported by substantial evidence. Id. Because this court did not take additional evidence, the Board is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id.

In Pennsylvania, it is well settled that “when a landowner acquires a land use through the expenditure of substantial, unrecoverable funds and in good-faith reliance on an erroneously or unlawfully issued building permit, that land use becomes a vested property right.” E. Hempfield Twp. v. Brubaker, 828 A.2d 1184, 1188 (Pa. Cmwlth. 2003). In order to establish whether an individual has obtained a vested right, it is necessary for Nace to establish the following five elements:

1. Due diligence in attempting to comply with the law
2. Good faith throughout the proceedings
3. The expenditure of substantial unrecoverable funds
4. The expiration without appeal of the period which an appeal could have been taken from the issuance of the permit; and
5. The insufficiency of the evidence to prove that the individual property rights or the public health, safety, or welfare would be adversely affected by the use of the permit.

Petrosky v. Zoning Hearing Bd. of the Twp. of Upper Chichester, 402 A.2d 1385 (Pa. 1979). In the present case, only elements three and five are contested by the parties, therefore, this court will address each in turn.

Whether there was an Expenditure of Substantial Unrecoverable Funds

Appellants in the case of Koziel v. The Borough of Waynesboro, expended $2,309.00 in reliance of an issued permitió complete a renovation of their property. 551 A.2d 383, 384 (Pa. Cmwlth. 1988). The Koziel court held that such an expenditure was considered a substantial amount when applying the vested right doctrine. Id. at 385. The Koziel court specifically found, however, that the costs were unrecoverable because materials had been installed and the construction of the project had been completed. See Koziel, 551 A.2d 383; see also Petrosky, 402 A.2d 1385. In the present case, construction on the conversion had just commenced when the permit was revoked.

The court now turns to an analysis of the specific costs in this case. Evidence presented to the Board established that during the time in which the permit was issued, Nace spent $1,269.90 on building supplies and $1,400.00 on four windows and two doors. Nace did not, however, break these purchases down by job or by property. From this evidence, the Board properly concluded that many of the items could have been purchased for other projects unrelated to the Conversion. The Board further found that most of the cost could have been recovered through the reselling or return of the merchandise, and that Nace made no attempt to do so. As such, the Board considered these expenses either unrelated to the Conversion or recoverable.

Nace also spent $500.00 as a down payment for a sewer and water line for the conversion. This expense may properly be considered unrecoverable because it was made in reliance on the permit and would have been lost if the line was not completed. Nace’s expenditure of an additional $1,000.00 to complete the sewer and water line is not chargeable, however, as it was expended after the revocation of the permit. Lastly, Nace claims two months of lost rent from the garage, totaling $200.00, as unrecoverable. Such a loss may be considered an unrecoverable expense because it was incurred in reliance on the issued permit. No evidence was presented to show that Nace attempted to rent the garage after the revocation of the permit.

This yields a total of $700.00 in unrecoverable expenses. The Board’s analysis and determination that Nace’s expenses were not substantial are supported by the evidence. The Board, therefore, did not abuse its discretion in finding that Nace did not expend substantial unrecoverable funds in reliance upon the issued permit.

Whether an Adverse Effect Upon Public Safety Exists

The burden is upon the Board to demonstrate that the individual property rights, or the public health, safety or welfare would be adversely affected by the use of the permit, because to place this burden upon the property owner, against their own interests, would be illogical. Mirkovic v. Zoning Hearing Bd. of Smithfield Twp., 613 A.2d 662, 666-67 (Pa. Cmwlth. 1992). However, the property owner bears the burden to show that the proof offered against him is insufficient. Roseberry Life Ins. Co., 664 A.2d at 693. The standard for substantial evidence is defined as relevant,evidence such that a reasonable mind might accept it as adequate to support a conclusion. Lecky v. Lower Southhampton Twp. Zoning Hearing Bd., 864 A.2d 593, 595 n.1 (Pa. Cmwlth. 2004).

Substantial evidence was presented to the Board that public safety would be adversely affected by the Conversion because of the lack of site distance created by the additional parking spaces in conjunction with the placement of the existing structure and its distance to the alley. Our review of the record reveals that the Board’s decision was supported by testimony of neighbors regarding the potential public safety problems arising from the creation of additional parking spaces. Those witnesses testified to the danger increased traffic in the alley pose to children who use the alley to access the nearby park and who often play in the alley. Testimony also was heard regarding the danger, increased traffic and parked cars in the alley would pose by hindering emergency vehicles’ access to the alley. The record shows that Nace offered little evidence to contest this testimony. The Board was presented with sufficient evidence to find that the public health, safety or welfare would be adversely affected by the use of the permit.

Accordingly, the following order is entered:

ORDER OF COURT

And now, this 15th day of October, 2013, upon consideration of appellant’s brief in support of appeal, the brief of appellee New Cumberland Zoning Hearing Board, a thorough review of the record, and after oral argument by the parties, it is hereby ordered that the decision of the New Cumberland Zoning Hearing Board is affirmed.

ORDER OF COURT

And now, this 15th day of October, 2013, upon consideration of appellant’s brief in support of appeal, the brief of appellee New Cumberland Zoning Hearing Board, a thorough review of the record, and after oral argument by the parties, it is hereby ordered that the decision of the New Cumberland Zoning Hearing Board is affirmed.

      . Table of Records No. 4, Transcript of Proceedings, 9 (filed Nov. 21,2012) (hereinafter “T.P. at_.”).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p. 1, ¶5 (filed Oct. 29,2012).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hf’g Bd., p. 1, ¶6 (filed Oct. 29, 2012).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., pp. 1-2, ¶¶7, 9 (filed Oct. 29, 2012).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd. (filed Oct. 29, 2012).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd. (filed Oct. 29, 2012).

      . Notice of Appeal (filed Oct. 29, 2012), Table of Records (filed Nov. 21,2012).

      . T.R at 11,23; Table ofRecordsNo. 5, Applicant Ex. 1.

      . T.R at 12, 23.

      . Table of Records No. 9, Appellant Ex. 5 (The total as supported by fourteen receipts dating from Oct. 10,2011 through Nov. 5,2011).

      . Table of Records No. 9, Appellant Ex. 5 (The total as supported by five receipts dating from May 17, 2012 through May 26, 2012); Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p.2, ¶12-13; T.R at 17-21, 35, 51.

      . T.R at 54.

      . T.P. at 52-53.

      . T.P. at 40.

      . T.P. at 40; Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p.3, ¶20.

      . T.P. at 20-21; Table of Records No. 9, Appellant Ex. 5; Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p.l, ¶7.

      . T.P. at 10, 28-29.

      . T.P. at 10; Table of Records No. 6, Applicant Ex.2.

      . T.P. at 77-78.

      . T.P. at 77-78.

      . T.P. at 71-72, 78, Table of Records No. 11, Opponent’s Ex. 1.

      /T.P. at 79.

      . T.P. at 80, 82.

      . T.P. at 82.

      . T.P. at 83-85.

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p. 3, ¶22 (filed Oct. 29,2012).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p. 3, ¶23 (filed Oct. 29,2012).

      . Notice of Appeal, Ex. A, Decision of the Zoning Hr’g Bd., p. 3, ¶5 (filed Oct. 29,2012).


author: FORD, J.,

text:
    Abeln v. Eidelman

      C.P. of Lehigh County,
    No. 2009-C-6037; 2573 EDA 2013

      Richard L. Copian, for plaintiff/appellant.

      Arthur W. Lefco, for defendant/appellee.
    November 8, 2013
   FORD, J.,

This is a legal malpractice case in which plaintiff/appellant, Paul J. Abeln, brought suit against defendant/appellee, attorney Richard Huntington Pepper, and attorney Mary J. B. Eidelman who is not a party to this appeal before the Superior Court of Pennsylvania. I granted defense motions for summary judgment dismissing the claims against both attorney defendants. Appellant Abeln filed the present appeal from my granting the motion for summary judgment in favor of appellee Pepper.

Case History

This legal malpractice action arises from a custody case, Paul J. Abeln v. Heidi C. Noll, Lehigh County number 2007-FC-0427 (“the custody case”). In this malpractice suit, appellant claims that each of the attorney defendants by their consecutive representation in the custody case was responsible for diminishing through court orders his custody rights to Paul Christopher Abeln, the child that he has with Heidi C. Noll (“mother”).

Appellant commenced this malpractice suit on November 13, 2009, by filing a praecipe for writ of summons. Thereafter, appellant filed a complaint on January 22,2010. After discoveiy, each attorney defendant filed a motion for summary judgment on September 1, 2011. I granted the motions for summary judgment in favor of the attorney defendants and against appellant on January 25, 2012. The judgments were not appealable at that point because appellee Pepper had an unresolved counterclaim for counsel fees filed under this same case number.

On November 6, 2012, I entered an order granting attorney Eidelman’s uncontested motion to sever the malpractice claim brought against her from the malpractice claim brought against appellee Pepper. Appellant Abeln filed a notice of appeal to the Superior Court from the January 25, 2012, order granting summary judgment in favor of attorney Eidelman. That appeal is pending at Superior Court docket number 1978 EDA 2013.

On September 6, 2013, judgment was entered in favor of appellee Pepper and against appellant on Pepper’s counterclaim for counsel fees which Pepper filed in response to appellant’s malpractice complaint. On September 10, 2013, appellant appealed the judgment on the counterclaim and the summary judgment in favor of appellee Pepper on the malpractice allegations. This is the present appeal and it is assigned Superior Court docket number 2573 EDA 2013. In an order dated November 1, 2013, the Superior Court consolidated the two appeals.

On October 1, 2013, in response to an earlier order, Appellant filed a statement under Pa.R.A.P. 1925(b) (“Concise Statement”) in which he sets forth four numbered claims of error in the present appeal at 2573 EDA 2013. Each challenges the granting of summary judgment for appellee Pepper.

Discussion and Conclusion of Law

To properly evaluate appellant’s claims of error, it is necessary to understand the history of appellee Pepper’s representation of appellant in the underlying custody case.

Appellant’s first attorney in the custody case was defendant, attorney Eidelman. Appellant retained attorney Eidelman on March 29, 2007. With that attorney’s assistance, appellant Abeln obtained two agreed interim orders for custody of his son.

On November 16, 2007, appellant first consulted appellee Pepper. (Paragraph 21, complaint.) On the same date, “Appellant fired Eidelman as his attorney for incompetence, via email, and asked her to request a continuance of the (custody) trial (scheduled for November 19, 2007) and to contact his new attorney, (Appellant) Pepper, prior to [the custody trial].” (Paragraph 24, complaint.) Despite this last statement, appellant did not execute a written retainer agreement with appellee Pepper until December 3, 2007. (Paragraph 32, complaint.)

On November 19, 2007, when the case was called for trial, the court excused defendant Eidelman from further representation at appellant’s request. Appellee Pepper, who was not yet retained and was only first consulted on the Friday before this Monday court date, did not appear in court on November 19. By agreement, the trial was continued to January 22, 2008. Mother, through her attorney, indicated she was prepared on November 19 to proceed to trial, but the court gave appellant the opportunity to secure the services of Pepper for the trial. Appellant, acting pro se, agreed to another interim custody arrangement whereby he and mother would share legal and physical custody of Paul Christopher. (Appellant subsequently sued defendant Eidelman under the present case number alleging she committed malpractice and was responsible for the terms of this order agreed by appellant even though Eidelman had been fired as counsel before this agreed order was entered.)

Appellant Abeln and mother appeared in court on January 22,2008, forthe rescheduled trial. Appellee Pepper represented appellant Abeln and mother also had counsel. Another agreed order was entered. This is the order which appellant attributes to malpractice by appellee.

Under this agreed order, the parents shared legal custody of Paul Christopher. Mother was designated as the primary physical custodian. Appellant was given partial custody rights. The lengthy agreement of the parties was set forth on the record before the Honorable Maria L. Dantos on January 22, 2008. At one point during the presentation of the agreement, there was an interruption when appellant Abeln and appellee Pepper spoke privately. At a later point during the proceedings, appellant, through Pepper, clarified that the parties would be following, in regard to counseling and a parenting coordinator, recommendations found in a written custody evaluation made part of the record that date and prepared by a psychologist, Doctor Phillip Nastasee. Appellee Pepper stated that appellant was noting his disagreement with other significant aspects of Doctor Nastasee’s report. Doctor Nastasee’s report resulted from an agreement of the parties made months earlier that they would pay him to do a custody evaluation of this family. Both parents stated their agreement to the terms of the custody arrangement reached on January 22, 2008, in response to questions by Judge Dantos before she entered the agreed order which resolved all issues for which trial was to be conducted.

Appellant perceived the Nastasee report as unfavorable to him. He claims in the present suit that appellee Pepper was professionally negligent in not challenging the Nastasee report at the January 22,2008, trial. Specifically, appellant contends that Pepper should have hired an opposing psychologist to critique the Nastasee report. Instead, according to appellant, “Pepper recommended to Abeln that they exploit a strategy of delay to allow the [r] eport to become stale and then request a new evaluation.” Appellee Pepper, with appellant’s consent, followed through on this strategy by filing a petition for modification of custody on March 11, 2008, and by filing the “Petition for Psychological and Mental Examination of Parties” on September 16,2008.

In this petition for a second evaluation, appellee Pepper asked that the court direct the parties to undergo a psychological evaluation by Steven E. Samuel, Ph.D. Appellee Pepper filed a memorandum in support of his petition. Pepper represented appellant Abeln at the October 8, 2008, hearing on the petition. Pepper brought Doctor Samuel to the hearing. No one testified at the hearing over which I presided. I granted the petition for the second evaluation based on the arguments of counsel.

On October 16, 2008, mother, acting pro se, filed a motion for reconsideration of the order setting up the evaluation by Doctor Samuel. After argument on this motion, I entered an order dated November 13, 2008, granting reconsideration. In that order, I rescinded the order of October 8, 2008, so that mother and appellant Abeln were no longer compelled to undergo an evaluation by Doctor Samuel. I indicated that the October 8,2008, order “is rescinded without prejudice to plaintiff (Appellant) to renew his motion for psychological evaluation at the appropriate time during the trial in this case.”

On January 28, 2009, I entered an order granting appellee Pepper’s petition to withdraw as counsel for appellant Abeln. According to Paragraph 3 of the petition, appellant had not paid appellee for services rendered and appellant and appellee had philosophical differences about the handling of the custody case. On February 13, 2009, attorney Stephen J. Anderer entered an appearance on behalf of appellant.

Mother filed a petition for relocation to Arizona on January 16, 2009. That and appellant’s petition for modification were heard at the trial which was conducted in March and April, 2009, before me. Attorney Anderer represented appellant at that custody trial. Mother was also represented by counsel at the trial. Attorney Anderer, in his trial preparation and at trial, did not renew the request for an evaluation of the parties by Doctor Samuel. On May 18,2009, after trial, I entered an order mandating that appellant Abeln and mother jointly share legal custody and equally exercise physical custody of their child.

With the above history in mind, I now turn to the four allegations of error raised by appellant in his Concise Statement.

In the first allegation of error, appellant Abeln argues that I improperly granted summary judgment in favor of Pepper under the Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), and McMahon v. Shea, 441 Pa. Super. 304, 657 A.2d 938 (1995) cases. I found that, as a matter of law, summary judgment had to be entered for appellee Pepper because the alleged negligent conduct against Pepper stemmed from the custody order of January 22, 2008, entered with appellant’s agreement without any evidence of coercion or other improper action by Pepper. My decision was correct.

This is appellant’s allegation against appellee Pepper that appellee forced him to reach an agreement embodied in the January 22, 2008, order which cut into appellant’s custody time with his child:

Pepper unfairly pressured Abeln into accepting an unfavorable settlement, of the custody issue that would otherwise have been resolved at trial, by both failing to adequately prepare to effectively advance Abeln’s interests at the trial and by repeatedly advising him that, in the absence of a settlement, the tenor of the (Nastasee) report and the inexperience of the judge virtually guaranteed that Abeln would lose what little physical custody of Paul he and his son enjoyed.

(Paragraph 66(c), complaint.)

As a general rule, a litigant is not permitted to agree to a settlement and subsequently bring a malpractice suit against his attorney based on the terms of the settlement. Muhammad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991). The Superior Court has held that Muhammad precludes a malpractice action where a settling client merely alleges that settlement resulted from “a deficiency in the lawyer’s exercise of his or her professional judgment.” McMahon v. Shea, 441 Pa.Super. 304, 313, 657 A.2d 938, 942 (1995). Conversely, a malpractice suit stemming from a settlement may proceed where a litigant shows that the settlement resulted from fraud or from the attorney’s failure to correctly explain legal principles or the consequences of the settlement to the litigant. Id.

In the evidence presented through discovery, appellee Pepper, upon review of the Nastasee report, concluded that Father would attain a more favorable custody arrangement through settlement than through trial. Instead of directly attacking the Nastasee report, Pepper advised appellant that the better course of action was to reach a custody arrangement with mother at the scheduled trial on January 22, 2008, allow the Nastasee report to lose its effect over time, work on personality issues through therapy, secure a second evaluation of the parties and then attempt to get a better custody arrangement in a subsequent proceeding. Appellant accepted this strategy and then appellant and appellee worked to implement it.

Appellant Abeln now contends that the January 22, 2008, agreed order resulted from Pepper’s flawed strategy of not impeaching the Nastasee report, pursuing the settlement option and then bringing litigation later once a more favorable psychological evaluation was obtained. Appellant does not allege that he entered the January 22, 2008, agreement as a result of fraud or Pepper’s failure to correctly explain to him the pertinent legal principles or the consequences of the agreement. While appellant contends that he was coerced into the agreed order, examination of the evidence developed through discovery reveals that appellant is actually claiming “a deficiency” in Pepper’s “exercise of his professional judgment” in pursuing one litigation strategy over another. As the Superior Court noted in McMahon v. Shea, the Muhammad rule operates to preclude malpractice suits where a litigant claims his unfavorable settlement resulted merely from his lawyer’s exercise of professional judgment. Thus, these malpractice claims asserted by appellant are precluded as a matter of law.

Further, appellant gave his informed consent to the agreement entered on Januaiy 22, 2008. The record from the hearing reveals a setting forth of the specifics of the custody agreement. At one point, as the agreement was being set forth, appellant interjected his comment that he felt the transportation provisions for Paul Christopher were too broadly stated and that there was conflict in the transportation provisions. N.T., 1/22/08, p. 7. Later in the hearing, appellant responded to a question by the judge that he understood provisions regarding any planned removal of the child from Pennsylvania. N.T., 1/22/08, p.20. Finally, appellant gave his approval to the custody provisions put on the record by the attorneys. N.T., 1/22/08, p. 23.

Appellant’s statement in his complaint (Paragraph 66(c)) that he was “unfairly pressured” by Pepper to enter into the January 22, 2008, agreement is contrary to appellant’s email to appellee Pepper dated December 20, 2007. In it, appellant stated to Pepper: “If you are successful in getting Zamborsky (mother’s attorney) & Heidi to discuss a custody arrangement, I would consider Heidi having title of primary physical custodian with the following visitation schedule (which father then set forth).” (The December 20, 2007, email is attached to appellee Pepper’s motion for summary judgment as Exhibit G. Appellant admitted sending this email in paragraph 20 of his reply to Pepper’s motion for summary judgment filed on September 29,2011.) Also, in a statement which is part of a document that appellant prepared entitled “Self Report Progress Note, dated February 20,2008,” appellant wrote:

I made the hardest decision of my life on 1/22/08 by offering Heidi the title of primary physical custodian, not because she was deserving of it but because I hoped that by giving her what she craved most, that she would stop the hostile actions and start to cooperate in a civil, responsive manner that is in the best interests of our son.

(The progress note is attached as Exhibit S to appellee’s October 24, 2011, “Motion to Supplement Summary Judgment Record” (supplemental motion). Appellant has confirmed the progress note is authentic. See Exhibit 1 to the supplemental motion.

Appellant further demonstrated that the January 22, 2008, agreement was his agreement with his testimony on March 24, 2009, during the custody trial, in the following exchange:

Q: And why did you agree to the order (stipulated order of January 22,2008)?
A: Because I was very concerned about Nastasee’s report having so many problems with it. I was concerned that I was going to have a worse — I was not going to see my son at all. And I had hoped that if I had given Heidi what she was craving, that the hostility and aggressiveness towards me would end, and that she would enable us to start co-parenting in the best interest of our son. And I had hoped, based on the terms of that agreement, that we would be able to use co-parent counseling and a parenting coordinator to resolve differences and get on better grounds so that in fact we would maximize the amount of time that both of us shared with our son.

N.T., 5/24/09, p.110.

Thus, under the authority of Muhammad and McMahon, I properly entered summary judgment for appellee Pepper.

In his second allegation of error, appellant claims that I ignored his “credible evidence in the record” supporting the malpractice claim so that the granting of summary judgment was not proper. As to the evidence I supposedly ignored, appellant points to “the professional opinion of a qualified legal malpractice expert.” This is a reference to Richard A. Katz, Esquire, who authored an opinion letter dated April 29, 2011. The August 29 letter refers to a March 4, 2010, letter by attorney Katz. This earlier letter does not appear to be part of the record. Appellant also refers to “Pepper’s admissions in deposition” which are not specified in the Concise Statement. Finally, he refers to appellant’s own testimony that Pepper’s failure to adequately prepare for a custody trial wrongfully prevented him from exercising meaningful discretion” to choose a trial over the settlement of January 22, 2008. There is also no specificity given as to the fashion in which appellee Pepper supposedly failed to adequately prepare for trial although the Concise Statement, taken as a whole, does make it clear that appellant faults appellee Pepper for not preparing a critique of the Nastasee report.

I have already commented on appellee Pepper’s advice not to attack the Nastasee report. That entire subject falls under the strategy advice provided by Pepper to appellant and accepted by appellant. As I have already explained, as a matter of law, that strategy decision by Pepper cannot be used as a basis for this malpractice claim after it resulted in the agreed order of January 22, 2008. The remainder of these allegations in appellant’s second claim of error are not specific. I do not know to what aspects of the legal malpractice expert’s reports appellant is referring and to what alleged lack of trial preparation appellant is referring beyond the Nastasee issue. Moreover, all of the legal malpractice expert’s opinions and appellant’s preserved issues appear to go back to the Nastasee issue.

In the third claim of error, appellant complains that the court’s erroneous ruling in granting summary judgment in favor if appellee Pepper wrongfully deprived him “of his only viable defense to Pepper’s counterclaim for attorney’s fees.” The counterclaim was heard at an arbitration at which no record was made. However, if the court properly granted summary judgment in favor of Pepper, then there is no substance to this allegation of error and it should be denied.

The final allegation of error reads:

Did the trial court err in finding no negligence in Pepper’s failure to offer testimony of a qualified psychologist, with knowledge of Abeln’s wife’s past performance on certain probative psychological tests, to support Abeln’s motion to have the mental stability of his wife evaluated in order to gain primary physical custody of his child?

A response to this requires a summary of what I have already stated. The psychological evaluation completed by Doctor Nastasee before the January 22, 2008, agreed order resulted from the decision by appellant Abeln and mother to jointly pay for and cooperate in the completion of that report. Second, there was the strategic decision recommended by and then made by Abeln not to have a second psychological report completed before the January 22, 2008, agreed order. Third, appellant Abeln, agreeing with the advice of appellee Pepper, waited a number of months following the agreed order and then filed a motion asking the court for a second psychological evaluation to be conducted by Doctor Samuel. The court initially granted that request and then rescinded the authorization for it against the wishes of both appellant and appellee. Fourth, attorney Anderer, with whom appellant Abeln apparently has no problem in regard to representation, did not resubmit a request for a second psychological evaluation at any point before or during the trial that occurred in March and April of 2009, despite being given the opportunity to request a second psychological evaluation by the court when it rescinded the authorization for the evaluation by Doctor Samuel. The trial in 2009, where no additional psychological evidence was presented, yielded a result that appellant acknowledges was acceptable to him. Thus, there is no factual dispute that appellant Abeln was able to secure a result acceptable to him in terms of custody with his son without any second psychological evaluation.

As the fact-finder and the judge who made the decision at the trial in March and April of 2009, far too much weight is placed by appellant Abeln on the effect that Doctor Nastasee’s report and testimony had at any point. This was perhaps best demonstrated by the result of the trial conducted in March and April, 2009. With these factors in mind, as a matter of law, there can be no merit to the claim that appellee Pepper was negligent for failing to go beyond what he did to secure a second psychological evaluation.

Because the granting of summaiy judgment in favor of appellee Pepper and against appellant Abeln was proper, this appeal should be denied.