J. A03033/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.L. : IN THE SUPERIOR COURT OF

Appellee : PENNSYLVANIA

:

v. :

:

:

G.L., III :

Appellant : No. 1264 MDA 2014

Appeal from the Order Entered June 24, 2014

In the Court of Common Pleas of Dauphin County 

Civil Division No(s).: 64 DR 2013

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 21, 2015

Appellant, G.L., III (“Father”), appeals from the order entered in the 

Dauphin County Court of Common Pleas determining the amount of child 

and spousal support he is to pay Appellee, K.L. (“Mother”), for her and the 

parties’ three children (“Children”). Father contends the court erred by 

assigning an earning capacity to him, while also using educational grants 

and his Veterans Administration (“VA”) disability income. He also claims the 

court violated his constitutional right to equal protection under the law by 

treating him differently than other obligors similarly situated. We affirm. 

 

*

Former Justice specially assigned to the Superior Court.
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The trial court summarized the facts and procedural posture of this 

case as follows:

[Father and Mother] were married June 20, 2005 and 

divorced November 13, 2013. They have three [Children], 

currently ages seven, six and two, who primarily reside 

with [Mother]. [She] filed a complaint seeking support 

[on] January 7, 2013. Following an office conference, [the 

trial court] issued orders as recommended by the 

conference officer, directing [Father to] pay child and 

spousal support. After [Father] sought de novo review, 

and following a hearing, I issued an order [on] July 18, 

2013, directing that, effective January 7, 2013, [Father] 

pay [Mother] $2,607 per month, allocated $2,225 for child 

support and $382 for spousal support. In determining the 

amount of support due, I assigned [Father] a monthly net 

income of $4,486. At the time the order was entered, 

[Father] was a full-time undergraduate student at Penn 

State University [and] was not employed. [Father’s] 

assigned income included federal and state educational 

grants, a government housing allowance and VA disability 

benefits. I also assigned him full-time wages based upon 

an earning capacity of $10 per hour over a forty-hour work 

week.

 

[Father] did not appeal from the July 18, 2013 order; 

however, . . . on August 1, 2013, he filed a petition to 

suspend his support obligation based upon increased 

custodial time. Following an office conference, I entered 

two orders on December 26, 2013, as recommended by 

the conference officer. The first, effective, August 1, 2013 

through November 12, 2013, required [Father] to pay 

$2,352 per month allocated $1,992 for child support 

($1,304 basic child support, $665 child care, $22 dance) 

and $360 for spousal support. Effective November 13, 

2013, the date of the parties’ divorce, the order was 

reduced to child support only of $1,992 per month.

In determining the support due, the conference officer 

assigned [Father] and [Mother] net incomes of $4,343 and 

$1,150, respectively. [Father’s] income again included 

federal Pell grant money, the housing allowance, VA 

disability benefits and the same earning capacity assigned 
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to him in the prior proceeding. The conference officer also 

included as income to [Father] state educational grant 

money he was not receiving in 2014 because, according to 

the conference officer, [Father] told her at the conference 

that he did not apply for the state grant solely because he 

did not want that money included in calculating his support 

obligation.1 [Mother] who had been primarily a stay-athome parent during the parties’ marriage, was assigned an 

earning capacity of $7.50 per week working full-time (forty 

hours per week). 

1

[Father’s] income included $5,645 per year federal Pell 

grant (net), $3,700 per year state grant (net), $10,179 

per year housing allowance (net) based upon a stipend of 

$1,131 per month for nine months, $15,372 per year VA 

benefits (net) and an earning capacity of $400 per week 

(gross).

[Father] filed a timely request for a de novo hearing, 

held February 26, 2014. The relevant evidence offered 

concerning [Father’s] income and earning capacity was 

a[s] follows: [Father] is a U.S. Army veteran who served 

eight years as a military police officer. He was honorably 

discharged in 2012. The VA provides him with a monthly 

disability payment of $1,281 per month. [He] claims he 

was discharged from the military with a 60% service 

disability (PTSD) he suffered during his foreign 

deployments and that as a result, he is not capable of 

employment. He enrolled at Penn State in the fall of 2012 

. . . . While at Penn State, his tuition has been paid 

through the GI Bill. In addition, he has received a federal 

Pell grant as well as a state educational grant which 

cover[s] non-tuition expenses including living expenses. 

He also receives a housing allowance through the GI Bill 

which is conditioned upon his attendance at school. As of 

the de novo hearing, [Father] was residing with his mother 

and had minimal living expenses including no car payment.

Despite his disability and his claim at the de novo

hearing he is unable to work, [Father] was previously 

employed for a few months in 2012 as a security guard 

earning $12 per hour. That employment ended when he 

was laid off following which he received unemployment 

compensation between April 2012 through April 2013. 
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[Father] has also worked in construction since his military 

discharge. Nevertheless, [Father] claimed he cannot 

attend school full-time and also work, and that his doctors 

would confirm this, though he offered no medical or expert 

evidence of his lack of employability. At the de novo 

hearing, [Mother] asserted that at the most recent 

Domestic Relations Section office conference, [Father] told 

the conference officer that he chooses not to work since 

any income he makes will be attributed to him (and 

increase his support obligation). The domestic relations 

Section Director confirmed that [Father] indeed told the 

conference officer that if he is held to an earning capacity, 

he will get a doctor’s letter stating he is disabled. [Father] 

did not refute that he made such a statement.

Trial Ct. Op., 6/24/14, at 1-3 (references to record and footnote omitted).

On June 24, 2014 the court entered an order which provided, inter 

alia, as follows:

(1) Effective, August 1, 2013 through November 12, 2013, 

[Father] owes $2,346.59 per month allocated $1,989.51 

for child support ($1304.49 basic child support, $665.21 

child care, $19.81 extracurricular expenses) and $357.08 

for spousal support.

(2) Effective November 13, 2013, the date of the parties’ 

divorce through January 13, 2014, the order is reduced to 

child support only, of $1989.51 for child support.

(3) Effective January 14, 2014 to date, the order for child 

support is $1,882.34 per month ($1,266.39 basic child 

support, $597.87 child care, $18.08 extracurricular 

expenses).

Order, 6/24/14.

This timely appeal followed. Father filed a court-ordered Pa.R.A.P. 

1925(b) statement of errors complained of on appeal. The trial court filed a 

responsive opinion.
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Father raises the following issues for our review:

A. Did the lower court abuse its discretion or commit an 

error of law by assigning an earning capacity to [Father] 

while also using educational grants as included income, in 

addition to his V.A. disability income[?]

B. Did the lower court violate [Father’s] constitutional right 

to equal protection under the law by treating him different 

than other obligors similarly situated[?]

Father’s Brief at 7.

First, Father argues that the court erred in assigning an earning 

capacity to him while also using educational grants and his disability income 

to calculate his support obligation. Father asserts he cannot work full or 

part-time because he is in college full-time and his disability prevents him 

from working and attending college.1 Father’s Brief at 15. He avers: “It is 

 

1

In support of his disability claim, Father refers to the reproduced record at 

pages 52 to 57. Father’s Brief at 15 n.1. At the hearing, Appellee objected 

to the introduction of Appellant’s medical record. N.T., 2/26/14, at 8. 

Appellant does not indicate in the argument “a reference to the place in the 

record where the matter referred to appears[.]” See Pa.R.A.P. 2119(c). 

Our review of the record does not reveal the medical report in the certified 

record. 

 

This Court has stated:

Pa.R.A.P. 1931(a)(1) provides that “the record on 

appeal, including the transcript and exhibits necessary for 

the determination of the appeal, shall be transmitted to 

the appellate court within 60 days after the filing of the 

notice of appeal.” Pa.R.A.P. 1931(a)(1). 

“It is black letter law in this jurisdiction that an 

appellate court cannot consider anything which is not 

part of the record in this case.” Any document which 
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inconsistent, both conceptually and intellectually, to hold him to a full-time 

earning capacity, and to use benefits he receives from the government that 

allows him to attend college, when those benefits are conditioned upon him 

attending school full time.” Id. at 15-16. Father claims the court erred in 

including educational benefits and housing benefits under the GI Bill as 

income. Id. at 19. He argues that educational grants should be considered 

“public assistance” and excluded from income for purposes of support. Id.

at 22, 24. 

Our review is governed by the following principles:

Our scope of review when considering an appeal from a 

child support order is as follows:

When evaluating a support order, this Court may 

only reverse the trial court’s determination where the

 

is not part of the official certified record is considered 

to be nonexistent, which deficiency may not be 

remedied by inclusion in the reproduced record. It is 

the responsibility of the appellant to provide a 

complete record to the appellate court on appeal,

including transcription of deposition testimony.

Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 106 n.1 (Pa. Super. 

2011) (citations omitted). 

We note our Supreme Court holds “that where the accuracy of a 

pertinent document is undisputed, the Court could consider that document if 

it was in the Reproduced Record, even though it was not in the record that 

had been transmitted to the Court.” Pa.R.A.P. 1921 note (citing 

Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). In the 

instant case, Appellee disputes the inclusion of these documents in the 

reproduced record, therefore we will not consider them. See id.; Brandon, 

34 A.3d at 106 n.1. 
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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. 

In addition, we note that the duty to support one’s 

child is absolute, and the purpose of child support is 

to promote the child’s best interests.

Morgan v. Morgan, 99 A.3d 554, 556-57 (Pa. Super. 2014) (citation 

omitted).

“In Pennsylvania, child support awards are made in domestic relations 

matters in accordance with specific statutory guidelines. . . . The guidelines 

provide extremely detailed instructions for calculating spousal and child 

support awards based on the obligor’s net income from all sources . . . 

.” Commonwealth v. Hall, 80 A.3d 1204, 1216-17 (Pa. 2013) (emphasis 

added).

Rule 1910.16-2(a) provides:

Generally, the amount of support to be awarded is 

based upon the parties’ monthly net income.

(a) Monthly Gross Income. Monthly gross 

income is ordinarily based upon at least a six-month 

average of all of a party’s income. The term 

“income” is defined by the support law, 23 Pa.C.S.A. § 

4302, and includes income from any source. 

Pa.R.C.P. 1910.16-2(a) (emphasis added). 
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Section 4302 of the Domestic Relations Code defines income as 

follows:

“Income.” Includes compensation for services, including, 

but not limited to, wages, salaries, bonuses, fees, 

compensation in kind, commissions and similar items; 

income derived from business; gains derived from dealings 

in property; interest; rents; royalties; dividends; 

annuities; income from life insurance and endowment 

contracts; all forms of retirement; pensions; income from 

discharge of indebtedness; distributive share of 

partnership gross income; income in respect of a 

decedent; income from an interest in an estate or trust; 

military retirement benefits; railroad employment 

retirement benefits; social security benefits; temporary 

and permanent disability benefits; workers’ 

compensation; unemployment compensation; other 

entitlements to money or lump sum awards, without 

regard to source, including lottery winnings; income tax 

refunds; insurance compensation or settlements; awards 

or verdicts; and any form of payment due to and 

collectible by an individual regardless of source.

23 Pa.C.S. § 4302 (emphases added).

In Parker v. Parker, 484 A.2d 168 (Pa. Super. 1984), this Court held 

service-connected disability VA benefits were a source of income for alimony 

pendente lite purposes. Id. at 169, (cited with approval in Uveges v. 

Uveges, 103 A.3d 825 (Pa. Super. 2014)). This Court has rejected the 

argument that housing allowances from the military were not income 

available for support:

Instantly, we find this Court’s decision in Alexander v. 

Armstrong, [ ] 609 A.2d 183 ([Pa. Super.] 1992), 

persuasive, despite [the f]ather’s attempts to distinguish 

those facts from his situation. In Alexander, this Court 

addressed a claim by the father, who was stationed in 

Okinawa, Japan, that his housing and quarters allowances 

did not constitute income for support calculation purposes:
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[R]elevant to our analysis is the fact that the 

Pennsylvania Child Support Guidelines, 

Pa.R.Civ.P.1910.16–1 et seq., are based on the 

concept that the child should receive the same 

proportion of parental income that he or she would 

have received if the parents lived together. If 

[the child] was living with [his father] or [his 

father’s] new family, he would share in the benefit 

from the allowances [his father] receives from the 

Navy for housing and utilities. However, because 

[the child] does not live with [his father] or [his 

father’s family], he does not receive any benefits 

from them. Accordingly, in keeping with the 

guidelines, we must include in [the father’s] 

income his [housing and quarters allowances].

Id. at 187.

Krankowski v. O'Neil, 928 A.2d 284, 286 (Pa. Super. 2007) (emphases 

added).

In Spicer v. Com., Dept. of Public Welfare, 428 A.2d 1008 (Pa. 

Cmwlth. 1981),2the petitioner appealed from an order of the Department of 

Public Welfare (DPW) which affirmed the decision of the Bucks County Board 

of Assistance (CBA) to discontinue her food stamps due to excess income. 

Id. at 1008. The petitioner received the following: “a Basic Educational 

Opportunity Grant (BEOG) for $544.00, . . ., and a grant from the 

Pennsylvania Higher Education Assistance Agency (PHEAA) for $250.00.” 

Id. at 1009. The Commonwealth Court found: “Since the Petitioner’s BEOG 

and PHEAA grant were not specifically earmarked by the granting agencies 

 

2

“Although decisions of the Commonwealth Court are not binding on this 

Court, we may rely on them if we are persuaded by their reasoning.” 

NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296, 308 n.7 (Pa. 

Super. 2012) (citation omitted). Instantly, Father contends his educational 

grants are akin to public assistance. Therefore, we look to the 

Commonwealth Court for guidance. See id. 
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and the grants were of a general nature, covering general living expenses as 

well as tuition and fees, the entire grant excluding the tuition was 

properly included as income for food stamp purposes.” Id. at 1011 

(emphasis added).

As is provided in Pa.R.C.P. 1910.16–2(d)(1), generally 

there is no change to the support obligation following a 

voluntary reduction of income:

(1) Voluntary Reduction of Income. When either 

party voluntarily assumes a lower paying job, quits a 

job, leaves employment, changes occupations or 

changes employment status to pursue an 

education, or is fired for cause, there generally will be 

no effect on the support obligation.

Pa.R.C.P. 1910.16–2(d)(1).

Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010) (emphasis 

added).

Rule 1910.16–2(d)(4), addressing earning capacities, provides as 

follows:

If the trier of fact determines that a party to a support 

action has willfully failed to obtain or maintain 

appropriate employment, the trier of fact may 

impute to that party an income equal to the party’s 

earning capacity. Age, education, training, health, work 

experience, earnings history and child care responsibilities 

are factors which shall be considered in determining 

earning capacity. In order for an earning capacity to be 

assessed, the trier of fact must state the reasons for the 

assessment in writing or on the record. Generally, the 

trier of fact should not impute an earning capacity that is 

greater than the amount the party would earn from one 

full-time position. Determination of what constitutes a 

reasonable work regimen depends upon all relevant 

circumstances including the choice of jobs available within 
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a particular occupation, working hours, working conditions 

and whether a party has exerted substantial good faith 

efforts to find employment.

Pa.R.C.P. 1910.16–2(d)(4) (emphasis added). 

This Court has stated: “[T]he voluntary choice to forego current 

employment in order to further one’s education is an employment 

decision that should be treated no differently than a decision to change jobs 

and salary.” Kersey v. Jefferson, 791 A.2d 419, 423 (Pa. Super. 2002) 

(emphasis added). “In determining a parent’s ability to provide support, 

the focus is on earning capacity rather than on the parent’s actual earnings.” 

Reinert v. Reinert, 926 A.2d 539, 542 (Pa. Super. 2007) (citation 

omitted).

Father claims the court erred in assigning an earning capacity to him 

and including his educational and housing benefits under the GI Bill as 

income. He avers he is unable to work because of his disability. He 

contends his benefits under the GI Bill should be considered “public 

assistance” and excluded from income for purposes of support. 

In the case sub judice, the trial court opined:

[Father’s] decision here to forego full time earnings in 

order to attend college was clearly voluntary and 

subordinated the immediate financial needs of his children 

to his career aspirations. Inasmuch as [Father] has 

willfully failed to obtain or maintain appropriate 

employment, this court may attribute to him an income 

equal to his earning capacity to help support his three 

children.
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In deciding upon his earning capacity, this court takes 

into consideration the totality of [Father’s] circumstances, 

including his age (28), health, work experience, earnings 

history and child care responsibilities. Pa.R.C.P. 1910.16-

2(d)(4). With regard to [Father’s] health, he failed to 

provide any medical or expert evidence that he is unable 

to obtain and maintain employment. While he cited the 

VA’s finding of a 60% disability, he failed to provide any 

evidence connecting that finding to his employability. The 

record otherwise revealed he has maintained employment 

since the VA’s finding: following his discharge from the 

military he has been employed full-time as a security 

guard until he was laid off and has also worked in 

construction, the latter occurring while he was enrolled in 

college. The record additionally supports [Mother’s] 

argument that [Father] refrains from obtaining 

employment because any income he earnings will be 

attributed to him for support.

 * * *

Furthermore, the record presented before this court 

revealed that the grant monies [Father] receives are 

available to cover his personal living expenses and thus 

reflect the true nature and extent of his financial 

resources. As noted, his tuition is completely covered by 

the GI Bill.[3] In addition, he receives a housing allowance 

for the months he is considered in school, an allowance 

which appears to be a windfall to [Father] inasmuch as he 

lives with his mother.[4]

 

3 We note the trial court did not include the tuition as part of Father’s net 

available income for child support.

4 The trial court noted that although Father’s lack of living expenses could 

warrant an upward deviation for his support obligation, the record was 

insufficient on the issue. Trial Ct. Op. at 13 n.10. At the hearing, the 

following exchange took place regarding Father’s living expenses: 

[Counsel for Mother]: I will just say in closing [Father] 

lives with his mother and doesn’t have a car payment. He 

has no expenses. . . . 
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 * * *

[Father], while not working and having minimal living 

expenses, receives a yearly $5,645 federal Pell grant, 

$3,700 state educational grant, $10,179 housing allowance 

and $15,372 VA benefits, a total net of $34,896, or $2,908 

per month. From this he is ordered to pay $1,304.49 basic 

child support for his three children [of] $1,266.39 under 

the current order.

Trial Ct. Op. at 7-8, 11, 13 (citation to the record omitted).

We discern no abuse of discretion. See Morgan, 99 A.3d at 556-57. 

The court calculated Father’s support obligation based upon his monthly net 

income pursuant to Pa.R.C.P. 1910.16-2(a)(2). Father’s disability benefits 

are income for child support. See Parker, 484 A.2d at 169. The court 

properly considered Father’s housing allowance. See Krankowski, 928 

A.2d at 286. The court did not abuse its discretion in considering Father’s 

Pell grant. See Spicer, 428 A.2d at 1011. Father voluntarily reduced his 

income by changing his employment status and choosing to pursue his 

education. See Smedley, 2 A.3d at 1228. The trial court did not abuse its 

discretion in imputing an earning capacity to Father. See Pa.R.C.P. 

1910.16-2(d)(4); Kersey, 791 A.2d at 423. 

 

[Counsel for Father]: Do you know why he lives with his 

mother?

The Court: Would that be your testimony?

[Father]: Yes, Your Honor.

N.T., 2/26/14, at 29. 
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Given our resolution of Appellant’s first issue, we find the trial court 

did not treat him differently than other obligors similarly situated in violation 

of his constitutional right to equal protection under the law. “[A] parent’s 

duty to support his minor children is absolute, and the purpose of child 

support is to promote the children’s best interests. The court has no legal 

authority to eliminate an obligor's support obligation, where the 

obligor can reasonably provide for some of the children's needs.” Silver v. 

Pinskey, 981 A.2d 284, 296 (Pa. Super. 2009) (emphases added). The trial 

court found Appellant was obligated to support his three minor children. 

See id.

For all of the foregoing reasons, the order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015