J-A19019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARIA J. BONO

v.

TERRY B. BONO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 250 EDA 2020

Appeal from the Order Entered December 23, 2019

In the Court of Common Pleas of Northampton County Domestic 

Relations at No(s): DR-0109117

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: Filed: November 25, 2020

Terry B. Bono (“Father”) appeals from the child support order entered 

on December 23, 2019. He argues the trial court erred in ordering the parties 

to take depositions prior to the de novo hearing, in assessing his income and

the income of his ex-wife, Maria J. Bono (“Mother”), and in allocating child 

care expenses between the parties. We affirm.

Mother and Father have two minor children. Mother filed a complaint for 

child support in September 2017, and the parties first appeared for a hearing 

before a domestic relations conference officer in October 2017. The conference 

officer issued a recommended order that the trial court adopted as an interim

order on October 26, 2017.1 The court ordered Father to pay Mother $1,234 

monthly, plus arrears.

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1 The order was filed on the docket on October 27, 2017.
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Father filed a written demand for a de novo hearing before the trial 

court. The parties appeared before the court on December 18, 2017, and the 

court ordered the parties to complete depositions and submit the transcripts 

of the depositions and briefs to the court prior to the de novo hearing. See

Order, 12/18/17, at 1. After several continuances, the parties submitted the 

transcripts and briefs at a de novo hearing in October 2018. Following the 

hearing, the court entered an order finalizing the October 26, 2017 support 

order for the period of September 11, 2017, through December 31, 2017. See

Order, 11/14/18, at 1.2 The court then remanded the case for a change of 

circumstances hearing and a new support recommendation for the period 

starting January 1, 2018. See id.

Father filed a petition for modification. The parties appeared for an office 

conference in early January 2019, and the attorneys for both parties advised 

the conference officer to refer to the previous depositions for the parties’ 

respective positions. See Trial Court Opinion, filed 3/12/20, at 6. The court 

entered an order continuing the proceedings until receipt of the parties’ 2018 

tax documents. Order, 1/23/19, at 1. The court entered an interim support 

order on April 5, 2019,

3 and a modified order of support on May 31, 2019, 

both of which ordered Father to pay child support starting on January 1, 2018. 

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2 The order was dated November 14, 2018, but filed on the docket on 

November 16, 2018.

3 The order was filed on the docket on April 8, 2019.
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Both Father and Mother demanded a de novo hearing. Father’s counsel 

withdrew prior to the September 18, 2019 hearing, and Father was 

unrepresented. At the hearing, Father complained that the court had assessed 

his earning capacity as a “painter, construction, maintenance worker,” based 

on the upper end of the values in the PA State Wage Occupational Survey,

rather than the midrange. N.T., 9/18/19, at 5-6. He further argued that his 

earning capacity should be lower, to reflect the economic circumstances of 

Carbon County, rather than the entire state. Id.; see also Tr. Ct. Op. at 11. 

In addition, Father argued the court erred when calculating his rental income 

based on his 2018 tax return. He specified the return displayed an annual 

rental income of $20,331, or $1,694 per month, which was lower than the 

amount on the modified order. N.T. at 9. He also argued the court did not 

include Mother‘s income from paragliding activities in the calculation of her 

net income. Id. at 10-11.4

On December 23, 2019, the court entered a final order of support for 

three periods: January 1, 2018, through April 17, 2018;5 April 18, 2018, 

through June 23, 2019; and June 24, 2019, forward. For the first period, the 

court assessed Mother’s annual earning capacity as an office clerk to be 

$22,730; for the second and third periods, the court used Mother’s actual 

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4 Father also argued the court miscalculated his rental income for 2017 based 

on his 2016 tax return. As discussed below, we need not reach this issue, as 

this period is not addressed by the order under appeal.

5 The court erroneously labeled this period as commencing on “January 18, 

2019,” rather than “January 1, 2018.” See Order, 12/23/19, at 1.
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income from full-time employment. For all three periods, the court added

Mother’s rental income of $718.67 per month to her assessed/employment 

income. The court found Mother’s monthly net income to be $2,349.48 for the 

first period, and $3,398.76, for the second and third periods.

For all three periods, the court assessed Father’s annual earning 

capacity at $42,540.00, using the salary of “an experienced painter, 

construction, [and] maintenance worker” from Carbon County Labor Market 

of PA Occupational Wage Survey.” Order, 12/23/19, at 1. The court found 

Father’s rental income to be $2,937.25 per month, and calculated his monthly 

net income to be $5,773.79. The court ordered Father to pay support for each 

period in the amount of $1,529, $1,461, and $1,549 per month, respectively, 

plus arrears.6

The court noted that it calculated both parties’ rental incomes using their 

2018 Federal Income Tax returns. It also stated it entered the order “without 

prejudice to either party filing a Petition for Modification upon finalization of 

the 2019 Federal Income Tax Returns.” Id. at 2.

Father appealed, and raises the following issues:

A. Did the trial court err and abuse its discretion by directing that 

the evidentiary record in this matter be developed by way of 

deposition testimony instead of a hearing before a judge of the 

court as provided by Pennsylvania Rule of Civil Procedure 

1910.11(i)?

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6 Although the parties’ assessed incomes remained constant between the 

second and third periods, the amount of support differed based on changes in 

childcare expenses.
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B. Did the trial court err and abuse its discretion by assessing 

[Father] with hypothetical income as the assessment was not 

warranted, the assessment resulted in a greater income than 

would ordinarily be earned from one full time position and the 

court failed to correctly apply Pa.R.C.P. 1910.16-2(C)(4)?

C. Did the trial court err and abuse its discretion in assessing 

[Father’s] rental income for all time periods under consideration 

as the amount of rental income assessed to [Father] was not 

representative of [Father’s] cash flow from rental operations?

D. Did the trial court err and abuse its discretion in the assessment 

of income to [Mother] in failing to consider any income from 

[Mother’s] business activities including paragliding equipment 

sales, other independent sales and [Airbnb] rentals?

E. Did the trial court err and abuse its discretion in allocating child 

care expenses to [Father] as the amount of child care expenses 

allocated are greater than what should be justified by the 

circumstances of the parties[?]

Father’s Br. at 10-11 (unnecessary capitalization and suggested answers 

omitted).

“Appellate review of support matters is governed by an abuse of 

discretion standard.” J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa.Super. 2015) 

(quoting R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013)). “[A]n abuse of

discretion requires proof of more than a mere error of judgment, but rather 

evidence that the law was misapplied or overridden, or that the judgment was 

manifestly unreasonable or based on bias, ill will, prejudice or partiality.” 

Portugal v. Portugal, 798 A.2d 246, 249 (Pa.Super. 2002) (quoting Kersey 

v. Jefferson, 791 A.2d 419, 423 (Pa.Super. 2002)). We will therefore only 

reverse an order of support “where the order cannot be sustained on any valid 
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ground.” Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting 

Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).

I. Use of Deposition Testimony

Father first argues the court erred in ordering the parties to take 

depositions prior to the de novo hearing. Father asserts that Northampton 

County has adopted Rule of Civil Procedure 1910.11, which provides that if 

the court enters an order based on a conference officer’s recommendations, 

and either party demands a hearing, the matter “shall” proceed to a hearing 

before the court. See Pa.R.C.P. 1910.11(f), (i). According to Father, this 

restricts development of the record to the de novo hearing.

7 Father argues the

court’s practice of ordering depositions prior to the de novo hearing also 

violates Rule 1910.1(b), which states that domestic relations matters shall 

proceed in accordance with the Rules of Civil Procedure, as the Rules limit 

situations in which deposition testimony may be admitted at trial. See Father’s 

Br. at 23-24 (citing Pa.R.C.P. 4020). 

Father further argues this practice prevented the court from assessing 

Mother’s credibility, and placed a financial burden on the parties. Father claims

that although the court permitted the parties to testify and present evidence 

at the September 2019 de novo hearing, the hearing was more akin to 

argument, as the court told Father he could only speak “briefly,” due to the 

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7

In contrast, Father argues, Rule 1910.12 provides that a party unsatisfied 

with the support recommendation of the conference officer can elevate the 

case for development of the record before a hearing officer, prior to 

consideration by the court. See Pa.R.C.P. 1910.12(b)-(d).
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existence of the depositions, and did not allow Father to introduce a document 

he had created with his accountant. Id. at 26 (citing N.T., 9/18/19, at 12), 

28. Father contends that he raised this issue by demanding a de novo hearing, 

as provided by the Rules. 

As the trial court explains in its Rule 1925(a) opinion, Father did not 

object to the order for depositions, but fully complied with the order. Tr. Ct. 

Op. at 33. In addition, Father and Mother “were permitted to supplement the 

record during multiple conferences and hearings and were permitted to submit 

additional documents including the submission of Federal Tax Returns for 

subsequent years,” and Father was “permitted to testify and submit 

documentation at the September 18, 2019 hearing.” Id.

We agree. Father did not object to the use of depositions when the court 

ordered them, or when he submitted them at the de novo hearing in October 

2018, or when the court stated that it would use the same depositions at the 

de novo hearing in September 2019. Father’s failure to timely raise objection 

to the procedure adopted by the trial court prevented the court from timely 

addressing Father’s concerns, rectifying any defects, or alleviating any 

perceived prejudice. We therefore find the issue to be waived.

8

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8 We are unpersuaded by Father’s attempts to avoid waiver. Christian v. 

Allstate Ins. Co., 502 A.2d 192 (Pa.Super. 1985), which Father cites for 

support, is distinguishable from the instant case. There, we declined to find 

waiver, even though the appellant did not object to the court’s failure to hold 

an evidentiary hearing, because the court could not have proceeded in that 

case without a hearing to determine whether there had been a settlement 
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II. Father’s Earning Capacity

Father next argues the court erred in assessing him with earning 

capacity as “an experienced painter, construction, maintenance worker.” 

Father’s Br. at 30 (quoting Order, 12/23/19). Father claims the court erred in 

making this assessment without considering his earning history or other 

statutory factors, and without finding that he willfully failed to obtain or 

maintain appropriate employment. Father’s Br. at 33-34 (citing Pa.R.C.P. 

1910.16-2(c)(4)). He points out that the court did not use an assessed income 

for the period of September 11, 2017, through December 31, 2017, and there 

was no discernable change in Father’s employment following that period.

He further contends the court erred in including both his rental income 

and his assessed income in his net income, without first finding that Father 

does not spend any time maintaining his rental properties. According to 

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agreement. Id. at 194. Here, however, there was nothing to prevent the court 

from proceeding to decide the issues in the support case based on the 

evidence already presented by the parties. Father’s reliance on Bell Fuel 

Corp. v. Cattolico, 544 A.2d 450 (Pa.Super. 1988), is likewise misplaced. In 

Bell Fuel, we declined to find waiver where the appellant did not object when 

the trial court abruptly terminated an evidentiary hearing on a preliminary 

injunction matter and proceeded to argument on a motion for summary 

judgment. Id. at 454 n.3. No such unanticipated, unorthodox procedure was 

adopted here. Rather, the court announced in advance that it would decide 

the support case using depositions, the parties acquiesced to this procedure, 

and the court proceeded accordingly. Nor do we find this case akin to DiMonte 

v. Neumann Medical Center, 751 A.2d 205 (Pa.Super. 2000), in which we 

declined to fault the appellant for failing to object when the trial judge took 

personal phone calls and engaged in other inappropriate behavior during a 

jury trial. Id. at 210. Here, the court simply conformed to the procedure that 

it had laid out months before, to which Father had ample opportunity to object. 
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Father, the court thereby attributed more income to Father than one single, 

full-time job. Father claims he maintains the properties himself, and does not 

use a third-party manager. 

Although the trial court was not bound by its previous orders, Father 

was aware that the court had utilized an assessed earning capacity for Father 

in generating both the April 5, 2019 interim order and May 31, 2019 modified 

order, as recommended by the conference officer. See Tr. Ct. Op. at 19-20. 

Nevertheless, at the de novo hearing, Father only raised a challenge to the 

amount of his assessed earning capacity, on the basis that the court utilized 

a high-end value from a statewide survey.9 Id. at 19. He did not argue that 

the court should not have assessed him with any earning capacity, or should 

not have classified him as a painter/construction/maintenance worker, or 

should not have added his rental income to his earning capacity. Father waived 

these issues by failing to raise them before the trial court. See Pa.R.A.P. 

302(a).

Even if Father had not waived these issues, we would not find any abuse 

of discretion. The court found Father “could realistically earn additional income 

under the circumstances, considering his age, health, mental and physical 

condition and training.” Tr. Ct. Op. at 25-26. The court noted that Father 

testified he had been maintaining rental properties for 20 years or more, and 

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9

In response, the court utilized the Carbon County Labor Market of PA 

Occupational Wage Survey to glean Father’s assessed income for the final 

order following the de novo hearing.
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determined that under the circumstances he could reasonably earn the 

assessed income of $42,540 per year. Id. at 26.

III. Father’s Rental Income

Father complains the court erred in calculating his rental income by 

using the rental income listed on his 2018 tax return and adding on the 

amounts listed for depreciation and attorneys’ fees. He claims that although 

he had asked the court to calculate his rental income in this manner in 2017, 

it was error for the court to utilize the same method to calculate his 2018 

rental income, as “[t]here had been no [e]videntiary [r]ecord made regarding 

Father’s 2018 Tax Return.” Father’s Br. at 37. Father claims he lost several 

rental properties in 2018 in the divorce settlement, and he made payments 

on debts he incurred to maintain the properties that were not reflected on the 

tax return. He also claims the court erred in its calculation because even 

considering only the values on the 2018 return, Schedule E of the return 

showed $7,130 income from rental operations, and $13,201 in claimed 

expenses, which would have totaled an annual rental income of $20,331, 

which does not support a monthly rental income of $2,937.25. 

The parties’ 2018 tax returns, from which the court derived the parties’ 

rental incomes, are not included in the certified record. We therefore find the 

issue of how the court calculated Father’s rental income waived. See Kessler 

v. Broder, 851 A.2d 944, 950 (Pa.Super. 2004). Moreover, as the trial court 

points out, it used the 2018 tax return in the way Father had requested the 

court use his 2017 tax return earlier in the proceedings. See Tr. Ct. Op. at 
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23-24 (citing Father’s Brief Upon De Novo Review, 10/15/18, at 12). 

Regardless, we find no abuse of discretion in the court’s having gleaned the 

rental income from the values Father declared when filing his federal income 

taxes.

Father also challenges the court’s assessment of $5,409 per month in 

rental income for the period from September 11, 2017, through December 31, 

2017. Father claims it does not relate to the parties’ reported net rental 

income of $19,863. However, this period was not addressed at the September 

18, 2019 de novo hearing, or by the final order under appeal. Rather, this 

period was covered by the order of November 14, 2018, which finalized the 

October 26, 2017 order for the period September 11, 2017, through December 

31, 2017. Father did not appeal that order. We are therefore unable to disturb 

the findings of the court on this point.

IV. Mother’s Income

Father argues the court abused its discretion when determining Mother’s 

income, because it did not consider her additional earnings from various 

income sources.10 Father also claims the court did not consider statutory 

factors in assessing Mother’s earning capacity, and that Mother failed to 

comply with a Notice to Attend and produce all relevant information.

The court found Mother had minimal income from these sources during 

the first period of support, and so it instead determined her income by using 

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10 These include renting out her home on Airbnb, selling wine for a direct sales 

business, selling coffee online, and selling paragliding equipment.
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an assessed earning capacity and rental income. Tr. Ct. Op. at 27-28. The 

court found there was no evidence that Mother had additional income sources 

in the second or third periods, and therefore used only her rental income and 

her actual income from full-time employment. Id. at 28. The court points out 

that the order under appeal specifies that either party may file for modification 

based on the 2019 tax returns. We find no abuse of discretion.

V. Childcare Expenses

Father’s final argument is that because the court miscalculated Father’s 

and Mother’s incomes, it miscalculated their respective relative proportional 

childcare responsibilities. As we find no abuse of discretion in the court’s 

determination of the parties’ incomes, there is no basis for revising the 

proportional childcare allocation.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/25/20