Feinberg, H. v. Kurmanov, M. (memorandum)

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J-A22031-21 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 HADASSAH L. FEINBERG Appellant v. MIKHAIL G. KURMANOV Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 45 MDA 2021 Appeal from the Order Entered December 4, 2020 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 01615-DR-15 BEFORE: BOWES, J., OLSON, J., and KING, J. MEMORANDUM BY KING, J.: FILED NOVEMBER 23, 2021 Appellant, Hadassah L. Feinberg (“Mother”), appeals pro se from the order entered in the Dauphin County Court of Common Pleas, which denied her request to modify a child support order following a de novo hearing. We affirm. In its opinion, the trial court set forth the relevant facts and procedural history of this case as follows: [Appellee, Mikhail G. Kurmanov (“Father”), and] Mother are the parents of two children, A.F. and E.A.F., ages five and four, respectively. In addition, Mother has another child, E.F., age seven, from another relationship and currently provides emergency foster care for an infant. All four children live with Mother. The proceeding at issue on Mother’s appeal involves child support for A.F. only. This [c]ourt takes judicial notice of the most recent custody order involving A.F., entered May 21, 2019, under which terms the parties agreed Mother would be granted sole legal and physical custody of A.F.1 Father’s paternity of E.A.F. was only established on December 10, 2020, following genetic J-A22031-21 testing, and this support obligation for E.A.F. is not before this [c]ourt.2 1 M.K. v. H.F., No. 2016 CV 4462 CU. Mother filed a petition on October 7, 2020 seeking child support from Father for E.A.F. After Father’s paternity was established, the matter proceeded to an office conference and was resolved with the entry of a child support order for both children on January 4, 2021 (discussed below). 2 Mother initially sought child support from Father for A.F. in November 2015 and a support order was later entered May 10, 2016, directing Father pay $496.58 per month plus $19 per month toward arrears. On September 1, 2020, Father filed a petition with the Domestic Relations Section seeking to decrease child support owed for A.F. Following an office conference, a per curiam Order was issued October 7, 2020, as recommended by the conference officer and effective as of September 1, 2020, directing that Father pay child support of $588 per month plus $75 per month on arrears. At the de novo hearing, the Domestic Relations director explained the calculation of support under the Support Guidelines: At the conference [M]other provided a physician’s verification form indicating that she was unable to work full time due to medical issues. Mother is working part time. She earns $125 a day and she works about two days a week and that would be a weekly gross of $250 or a monthly net of $958.35. She does receive medical assistance for herself and her other children. And is receiving food stamps in the amount of about $457 a month. She also stated that she has a daycare cost of $76 per week and a registration fee. Father, we had pay stubs for him. He earns $13 an hour, 40 hours a week. That put him at a monthly net of $1,826.06. The combined incomes of the parents came to $2,784.41 or $2800 on the Support Guidelines grid for one child which is $658 per month. Father’s obligation toward just basic support at 65.58 -2- J-A22031-21 percent would be a support order of $431.52. However, when we average in the daycare, that is what changes this order. Daycare is $76…a week. For a year that is $3,952. Then we had $150 registration fee for a total of $4,102. After the federal tax credit it’s down to $3,052. Monthly $254.33 and Father’s obligation would be $166.79. So we have basic support of $431.52 and daycare of $166.79 for a total of $598.31. So the conference officer recommended the $598 a month plus $75 on arrears for one child effective 9/1/20. [Mother] to provide medical coverage for the child. The uninsured after the first $250 annually is 65 percent [F]ather, 35 percent by [M]other. And the parties shall share the cost of any agreed-upon extracurricular activities for the child in proportion to their respective income. Father also raised an issue concerning the SSI that his child A.F. is receiving. Mother does receive $783 per month which was verified by the Department of Public Welfare for help in supporting this child. That is not factored into [M]other’s income or to [F]ather’s income or to reduce the amount of support that the noncustodial parent would be required to pay under the Support Guidelines. It helps for the expenses for the child. (N.T.[, 12/2/20, at] 3-5)[.] Mother filed a timely request for de novo review from the October 7, 2020 child support order. A de novo hearing was held before this [c]ourt on December 2, 2020, at which both Mother and Father testified, both as self-represented parties. The relevant record from the de novo hearing was as follows: Mother’s primary complaint at the hearing was that Father had voluntarily and intentionally reduced his income from $21.64 [an hour] plus commissions to $13 an hour by taking a lower paying job. She claimed he should be held to his prior income and earning capacity. (N.T. [at] 6, 9)[.] Mother also sought an upward deviation of support because -3- J-A22031-21 Father was not exercising any custody of A.F. and noting that she had spent over $7,000 on [A.F.’s] disabilities (primarily autism), has total debt exceeding $80,000, and has her own disabilities and health problems which limit her ability to work. (N.T. [at] 7-8, 22)[.] Mother claimed that Father lives with either his mother or his significant other and thus can split expenses with them. She also asserted that Father drives an Audi that he leases for $700 to $800 per month. (N.T. [at] 8)[.] Mother complained about Father’s failure to make support payments between March and July 2020 and asserted that he is in contempt for failure to do so. (N.T. [at] 7, 10)[.] With regard to employment, the record reflected that Mother is a substitute part-time teacher earning $125 per day and working about two days per week. (N.T. [at] 3, 9)[.] Though Mother testified that she was earning far less than $250 per week, she agreed at the hearing that “I am okay with that amount.” (N.T. [at] 10-11)[.] She also testified that upon agreeing to provide foster care, she understood that the infant would not be eligible for childcare with most providers until six weeks of age, thus limiting her ability to work during this time. (N.T. [at] 19)[.] Father testified that he had worked in sales for a long time before he was let go by his employer in March 2020, directly as a result of the Covid pandemic. (N.T. [at] 15)[.] He received unemployment compensation shortly thereafter. (N.T. [at] 15)[.] Father claimed he looked for other jobs through the summer of 2020 but was unable to find any. He thus decided to become a union electrician after studying for two months and passing an aptitude test. (N.T. [at] 15)[.] Though his starting income is low, he testified that the hourly rate would increase every six months and that in five years he should be making $80,000 per year. (N.T. [at] 17)[.] Father claimed Mother has sufficient income and resources including SSI, food stamps and free health care for A.F., child support for her oldest child E.F., and a foster care stipend. (N.T. [at] 16)[.] Father suggested that a foster care agency would not give a newborn to a person who is “broke.” (N.T. [at] 16, 18-19)[.] Father also testified that he wants to see his son but that Mother has made it difficult -4- J-A22031-21 for him. (N.T. [at] 16)[.] Father cited his own financial and health problems, noting that he has irritable bowel syndrome and spends over $3,000 on his prescriptions, without the benefit of free health care. (N.T. [at] 17)[.] The Domestic Relations Section director confirmed that Father submitted documentation at the officer conference reflecting his diagnosis and out-of-pocket expenses. (N.T. [at] 18)[.] At the conclusion of the hearing, this [c]ourt denied Mother the relief requested in her demand for a de novo hearing, and re-affirmed the contents of the October 7, 2020 Order, with the exception that the childcare cost portion of the award would be recalculated and reduced to accurately reflect Father’s proportionate share of Mother’s childcare payments only attributable to A.F., as discussed at the hearing. (See N.T. [at] 12-14, 20-21)[.] As such, the final recalculated Order was issued December 2, 2020, directing that Father pay $506.43 per month plus $50 per month on arrears, for the support of A.F., effective September 1, 2020. On December 23, 2020, Mother filed a timely appeal from the [c]ourt’s December 2, 2020 Order. On December 30, 2020, while her appeal was pending, Mother filed a document titled “Notice of Perjury and Contempt.” In it, she asserted that Father should be held in contempt for falsely testifying at the de novo hearing. In support, she submitted almost one hundred pages of exhibits “proving the false testimony to be false and intentional.” She also requested reconsideration of the December 2, 2020 Order. This [c]ourt denied her request for reconsideration. In the meantime, on January 4, 2020, following a Domestic Relations Section office conference on Mother’s petition seeking support for both A.F. and E.A.F., a per curiam Order was entered, as recommended by the conference officer and effective October 7, 2020, increasing Father’s child support to $772 per month plus $77 per month on arrears.3 As such, the child support Order entered in this case from which Mother appealed, is effective only from September 1, 2020 to October 6, 2020. -5- J-A22031-21 3 The parties were assigned the same incomes to calculate support for this Order as were used to calculate the Order from which Mother appeals. (Trial Court Opinion, filed February 12, 2021, at 1-4). Mother raises the following issues for our review: Did the trial court err in limiting the right established in U.S. Code § 1623, by accepting false unsubstantiated statements from [Father] which is an abuse of discretion and erroneous, regarding other support order, domestic violence, inconsistent statements, shirking responsibility, knowingly denying paternity, public assistance, foster care, lack of custody/visitation, [Father’s] shared living expenses, and biased input from the director of domestic relations omitting pertinent information to the trial court? Did the trial court err in limiting the right established in Kersey v. Jefferson[, 791 A.2d 419 (Pa.Super. 2002)] where both prongs of the Grimes test were not substantiated for reason employment ended and evidence to a search of comparable wages. Grimes v. Grimes, [596 A.2d 240 (Pa.Super. 1991)] and Pa.R.C.P. 1910.16-2(d)(4)? Did the trial court err in limiting the right established in Melzer v. Witsberger[, 505 Pa. 462, 480 A.2d 991 (1984)] and Babish v. Babish[, 521 A.2d 955 (Pa.Super. 1987)] that a parent has a right to share in the good fortune with his minor child, when the trial court failed to calculate the resources on record from [Father’s] lump sums, frivolous expenses, and unreported change of income? Did the trial court err in limiting the right established in [S.T. -E. v. A.T., No. 1532 MDA 2017 (Pa.Super. July 16, 2018) (unpublished)] that a deviation should be awarded when a parent does not exercise parental duties when the record shows a need? Did the trial court err in limiting the right established in Forry v. Forry[, 519 A.2d 516 (Pa.Super. 1986)] and Jaskiewicz v. Jaskiewicz[, 473 A.2d 183 (Pa.Super. 1984)], when [Mother] stated significant changes? Did the trial court err in limiting the right established in Kurts v. Parrish[, No. W2004-00021-COA-R3-CV (Tenn. -6- J-A22031-21 Ct. App. 2004) (unpublished)], when [Father] has made no attempts to maintain a relationship with the children? Did the trial court err in limiting the right established in In Re N.P.[, 2014 Ohio 4087 (Ohio Ct. App. 2014) (unpublished)] pursuant to R.C. 3119.23(A),(G),(H),(J), and (K) when [Father] did not contribute to past health related expenses? Did the trial court err in limiting the right established in 66 Pa.C.S.[A.] § 332, 231 Pa.Code § 1910.29, and Rule 1910.16-6(A)(3), by permitting irrelevant evidence, lack of physician verification/statement and ineligible tax credit? Did the trial court err in limiting the right established in Hoy v. Wheeler[, No. 1872 EDA 2016 (Pa.Super. Nov. 21, 2017) (unpublished)] pursuant to 23 Pa.C.S.[A.] § 4353(A), 23 Pa. C.S.[A] § 4353(B), and Pa.C.S.[A.] § 4345 when the record lacked an increased wage report by [Father] which resulted in a disproportionate child support order and a decrease of arrears despite previous contempt. (Mother’s Brief at 5-7). Our standard of review of child support orders is well settled: 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. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. Summers v. Summers, 35 A.3d 786, 788 (Pa.Super. 2012). After a thorough review of the certified record, the briefs of the parties, and the relevant law, we conclude the record supports the trial court’s analysis of Mother’s issues. Consequently, we affirm for the reasons stated in the -7- J-A22031-21 opinion entered by the Honorable John J. McNally, III, on February 12, 2021. Initially, the trial court noted that Mother raised numerous issues in her concise statement of errors that she did not pursue at the de novo hearing, constituting waiver. (See Trial Court Opinion at 5). Specifically, with respect to Mother’s challenges to Father’s alleged false testimony, the trial court explained that the court was free, as factfinder, to accept Father’s testimony as generally credible. (See id. at 5-6). Further, although Mother filed over 100 documents allegedly attacking Father’s credibility after the hearing, Mother did not produce any such documents at the de novo hearing or attempt to cross-examine Father. (Id. at 6). Likewise, Mother’s complaints that the Domestic Relations Section director omitted pertinent information was waived where Mother had the opportunity to identify any alleged omitted facts at that hearing but did not do so. (Id.) Regarding Mother’s complaint that the court should have held Father to a higher earning capacity, the trial court found Father’s testimony, that he lost his job directly as a result of the pandemic, credible. (Id. at 7). The court further found that Father made a reasonable effort to obtain appropriate employment as a union electrician and that his decision to obtain employment in this field, which will ultimately yield a higher income, was reasonable. (Id.) With respect to Mother’s claim that the court failed to consider Father’s luxury car, extra unemployment income and stimulus money when calculating support, the court emphasized that the calculation of support is primarily -8- J-A22031-21 determined by Father’s monthly net income.1 (Id.) Concerning Mother’s allegation that the court should have made an upward deviation of 15% to the support calculation because Father does not exercise any period of custody, the court declined to deviate from the amount of support provided for in the guidelines because the record did not support such a deviation. The court referenced that both parties presented evidence of significant financial difficulties, such that an upward deviation was not warranted. (Id. at 7-8). The court further pointed out that Mother’s reliance on cases and statutes from Ohio were not applicable to the current action. (Id. at 8). To the extent Mother complains the court over-calculated her income for support purposes, the court noted that Mother did not contest a $250/week earning capacity at the de novo hearing. Moreover, the record supports such an earning capacity by Mother. (Id.) To the extent Mother complains that the court should have required Father to present a physician verification form to support a reduction in his income, the court noted that Mother waived this claim for failure to raise it at the hearing. Moreover, Father did not seek a reduction to his assigned income ____________________________________________ The trial court initially stated that Mother waived these claims by failing to present them at the de novo hearing. (See id.) Our review of the record shows that Mother mentioned Father’s lease of an Audi vehicle and speculated that Father probably received a stimulus check as well as unemployment during the pandemic. Nevertheless, Mother did not provide any evidence at the de novo hearing to substantiate her allegations. 1 -9- J-A22031-21 based upon a reduced ability to work; rather, he was assigned a net monthly income based on his full-time employment. (Id. at 8-9). Regarding Mother’s claim that the court erroneously adjusted her support due to her eligibility for a federal tax credit, the court stated that Mother failed to raise this issue at the hearing or produce any evidence concerning her alleged inability for the credit. Thus, Mother waived this issue. (Id. at 9). Similarly, the court noted that Mother failed to raise at the de novo hearing Father’s alleged failure to report increased wages in 2019. Thus, Mother waived this issue as well. (Id.) Further, Mother failed to explain how the court’s reduction in Father’s arrearage payment from $75/month to $50/month constituted an abuse of discretion. (Id.) On this record, we cannot say the court abused its discretion in denying Mother’s request to modify the child support order.2 See Summers, supra. Accordingly, we affirm based on the trial court’s opinion, and direct the parties to attach a copy of the trial court’s opinion to future filings involving this appeal.3 Order affirmed. ____________________________________________ We reiterate that the child support order from which Mother appealed, is effective only from September 1, 2020 to October 6, 2020. 2 Any additional claims raised in Mother’s brief that the trial court did not address in its opinion were not preserved in her concise statement and are waived on appeal. See Interest of L.V., 209 A.3d 399 (Pa.Super. 2019) (explaining failure to preserve issues in concise statement of errors results in waiver of those claims). 3 - 10 - J-A22031-21 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/23/2021 - 11 - Circulated 11/04/2021 10:19 AM

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