J-S13031-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

MICHELLE D. MOORE

v.

MARK T. HERNANDEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2930 EDA 2022

Appeal from the Order Entered October 21, 2022

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

643-DR-2020, 

PACSES: 147300685

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 17, 2023

Mark T. Hernandez (“Father”) appeals from the order of child support

entered in the Court of Common Pleas of Monroe County that included in the 

calculation of his monthly net income $3,000 representing trust payments 

made to him during his marriage, despite Father’s testimony that his mother 

controlled the trust and recently stopped making such payments to him. After 

careful review, we affirm.

The trial court sets forth the pertinent facts and procedural history, as 

follows:

[Michelle Moore (“Mother”)] and [Father] were married on

September 16, 2009. There was one child born of the marriage. 

The parties have since separated [in September 2020], and

Mother filed a Complaint in Divorce on February 16, 2021. On 

January 29, 2021, Mother filed a Petition seeking support for the 

one minor child born of the marriage. Subsequently, on July 20, 

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* Former Justice specially assigned to the Superior Court.
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2021, Father filed a Petition seeking alimony pendente lite. The 

petitions were combined for a hearing before the Support Master 

Richard James which was held on November 12, 2021.

After the support hearing, Master Richard James made a 

recommendation for Father to pay $859.00 for the period of 

January 29, 2021, to September 26, 2021. After September 26, 

2021, Father was to pay $964.00 per month for the support of the 

minor child.

The Support Master also found that alimony pendente lite

payments to Father were not warranted and his petition was 

dismissed. Additionally, under this recommendation, Mother was 

to be responsible for the first $250.00 of the minor child’s 

uninsured medical expenses and Father was to be responsible for 

fifty percent of all other medical related expenses not covered by 

insurance. This Recommendation of the Master was adopted as 

an Order of the Court on January 4, 2022.

Trial Court Order and Opinion, 9/28/2022, at 1-2.

The Recommendation of the Support Master set forth the following 

rationale for including in Father’s monthly support calculations the $3,000 in 

monthly payments from a multi-million-dollar trust1that he claimed he was 

no longer receiving:

Father received funds from two . . . sources [other than 

employment]. 

Until about September 2020, Father received $1,300.00 per 

month from his mother. This appears to be a gift. No entitlement 

to this money was shown and it will not be considered in the 

calculation of Father’s income.

Until February 2021, Father received $3,000.00 as a trust 

beneficiary. The testimony indicated that [Father’s] mother was 

in control of the trust and stopped the payments to him.

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1 At the support hearing, Mother testified that the trust fund “has millions in 

it in property and assets that [Father] has drawn from continuously since the 

trust was set up.” N.T., 11/12/21, at 14-15.
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Coincidences are always a concern. It is noted that the trust 

payments ended at about the time Mother filed for child support.

Although [Father’s] mother may control the trust and may be the 

person who distributes the trust money, the issue is not whether 

Father receives payments from the trust but whether he has the 

right and/or the ability to receive payments from the trust. The 

trust document would reveal this, but such documents were not 

offered into evidence. Father did not provide credible evidence to 

show why his trust income ceased.

Father’s testimony did not convince the Master that Father is 

unable to continue realizing income from the trust.

Master’s Findings, 12/23/21, at 1. The Master’s Recommendation was 

adopted as an order of the trial court on January 4, 2022.

On January 24, 2022, Appellant filed one exception to the Order and 

Master’s Recommendation, namely, that the Master erred in including monthly 

trust payments of $3,000 in his income after making a finding of fact that 

Appellant was not receiving such monthly payments. Upon review, the trial 

court disagreed, on the following reasoning:

In the Master’s report, the Master stated the trust document would 

reveal if [Appellant] has the right or ability to receive payments 

from the trust. This document was not offered by [Appellant] into 

evidence at the time of the hearing before the Master. Without 

this document to substantiate [Appellant’s] argument that he is 

not able to receive payments from the trust, it is up to the Master 

to determine the credibility of the [Appellant] through his 

testimony. After considering the Master’s report and testimony of 

the parties, we conclude the [Appellant] did not demonstrate or 

offer corroborating evidence that he is not able or lacks the right 

to receive monies from the trust at issue. Therefore, [Appellant’s] 

exception is denied.

Trial Court Opinion and Order, 9/28/22, at 4. This appeal followed.

Appellant raises one issue for this Court’s consideration:
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Did the trial court misapply the law in including the $3,000.00 that 

a parent previously received as a beneficiary of a trust controlled 

by his mother in that parent’s net monthly income, and in 

calculating his support obligation based on this net monthly 

income, when the Support Master found that this parent’s mother 

controlled the trust and that this parent stopped receiving these 

payments in February of 2021, resulting in these distributions 

being not actually available to this parent or received by this 

parent? 

Brief of Appellant at 4.

Our standard of review for appeals regarding child support orders is 

whether there was an abuse of discretion. See E.R.L. v. C.K.L., 126 A.3d 

1004, 1007 (Pa. Super. 2015). “[T]his Court may only reverse the trial court's 

determination where the order cannot be sustained on any valid ground.” Id.

(citation omitted). Moreover, “[a]n abuse of discretion is [n]ot merely an 

error of judgment, but if in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will, as shown by the evidence of 

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

Additionally, we adhere to the following principles whenever a trial court 

sits as the finder of fact in a support matter:

[This Court] must accept findings of the trial court that are 

supported by competent evidence of record, as our role does not 

include making independent factual determinations. In addition, 

with regard to issues of credibility and weight of the evidence, this 

Court must defer to the trial judge who presided over the 

proceedings and thus viewed the witnesses firsthand.

When the trial court sits as fact finder, the weight to be assigned 

the testimony of the witnesses is within its exclusive province, as 

are credibility determinations, and the court is free to choose to 
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believe all, part, or none of the evidence presented. This Court is 

not free to usurp the trial court's duty as the finder of fact.

M.E.W. v. W.L.W., 240 A.3d 626, 634 (Pa. Super. 2020) (cleaned up).

The crux of Father’s argument charges the trial court with abusing its 

discretion by including among his actual financial resources the trust income

that he no longer actually receives. In this vein, he relies on Fennell v. 

Fennell, 753 A.2d 866, 868 (Pa. Super. 2000), in which we addressed the 

issue of whether, for child support purposes, the father’s net income should 

include his proportional share of retained earnings of a subchapter S 

corporation, even though the father did not take home any of these earnings. 

Because the father did not actually receive the corporate distributions

and could not control whether the company would issue distributions or retain 

its earnings, we held that the trial court erred when it considered the corporate 

retained earnings as income available for support. Id. at 869. We continued,

“in situations where the individual with the support obligation is able to control 

the retention or disbursement of funds by the corporation, he or she will still 

bear the burden of proving that such actions were ‘necessary to maintain or 

preserve’ the business.” Id. (citation omitted).

The present facts are distinguishable from those in Fennell. Whereas 

the father in Fennell had produced sufficient evidence to establish he neither 

received income designated as corporate retained earnings nor had the ability 

to control the disbursement of such earnings, Father in the case sub judice

offered only his bare testimony that his mother controlled the trust and 
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stopped payments to him, without ever addressing whether he has the right 

to receive such payments. 

As reproduced supra, the Master’s Recommendation explained that he 

considered Father’s testimony to be neither credible nor dispositive on the

determinative question of whether Father could demand continued payments 

pursuant to the terms of the trust. Specifically, because the cessation of trust 

payments coincided with Mother’s complaint in child support and Father failed 

to present the trust document to prove he had no right to demand the 

continuation of payments that he had received without interruption during his 

marriage, the Master concluded Father had failed to substantiate his claim of 

reduced income for purposes of calculating his child support obligations. 

We agree that the present matter thus turns on the credibility 

determinations of the Master, which were adopted by the trial court. We have 

reviewed the record and the court’s rationale in this regard, and we find no 

support for Father’s claim that he had introduced sufficient evidence to 

establish that the trust income which he had long received was no longer 

available to him. Accordingly, as we discern no abuse of discretion below, we 

affirm.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2023