J-S38003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.S.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

R.S.

Appellant No. 1285 MDA 2014

Appeal from the Order Entered on July 2, 2014

In the Court of Common Pleas of Cumberland County

Domestic Relations at No.: 974 Support 2012

BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED JULY 17, 2015

R.S. (“Father”) appeals the July 2, 2014 order that set his child 

support obligation. Because the record did not provide sufficient support for 

the trial court’s award, we are constrained to vacate the order and remand 

for further proceedings.

A prior panel of this Court set forth the factual and procedural history 

of this case as follows:

Father and [M.S.S. (“Mother”)] were married in September 1989 

and are the parents of four minor children. The parties lived 

together until Father was arrested on February 25, [2009]. He 

has been incarcerated since that time.

Father is entitled to receive monthly payments of $799.20 from 

a TIAA-CREF annuity that comes from Father’s inheritance from 

his father. From the time of his incarceration until 

approximately May 2012, Father directed TIAA-CREF to deposit 

these payments into the joint bank account that he shares with 

[Mother]. Mother used these funds to support herself and the 

parties’ children. However, when Mother told Father of her 
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intention to seek a divorce, Father instructed TIAA-CREF to stop 

the monthly deposits in the parties’ joint account. Father had 

these funds deposited into his prison account until October or 

November 2012, at which time Father elected to stop receiving 

the payments.

Following Father’s diversion of the annuity funds from their joint 

account, Mother filed a complaint seeking both spousal and child 

support. Initially, [Mother’s] petition was denied because Father 

is incarcerated. Mother petitioned for a hearing de novo, at 

which both parties appeared pro se and testified. [Father 

appeared via telephone conference.] At the hearing, Father 

testified as to the amount of the monthly TIAA-CREF payments 

and his decision to “defer” them until a later time. Father also 

testified that he earns $7.68 per month in prison as a library 

clerk. Following the hearing, the hearing officer entered an 

interim order finding Father’s income to be $799.20 (the amount 

of the TIAA-CREF payments), and setting Father’s child support 

obligation to be $50.00 per month, with an additional payment 

of $5.00 toward arrears.[1] In the report and recommendation 

the master filed contemporaneously with the interim order, he 

recommended dismissing [Mother’s] request for spousal support.

Mother retained counsel and filed exceptions, arguing, inter alia, 

that the master erred by determining Father’s support obligation 

strictly on the support guidelines without taking into 

consideration the extraordinary circumstance of Father’s 

incarceration, which eliminates his need for the TIAA-CREF 

income, and the fact that Mother has sole custody of the 

children, as Father is incarcerated. According to [Mother], these 

circumstances militate in favor of an upward deviation from the 

guideline support figure. . . . The trial court dismissed 

[Mother’s] exceptions and made the hearing officer’s interim 

order final.

____________________________________________

1 The hearing officer based this amount upon the child support 

guidelines applicable at the time of the hearing, which provided for a basic 

child support amount of $50 for one child when the obligor’s income was 

between $0 and $900. Pa.R.C.P. 1910.16-3 (2013). The hearing officer did 

not explain why he did not set the obligation at $65, which was the guideline 

amount for four children.
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[M.S.S. v. R.S.], 1282 MDA 2013, slip op. at 1-3 (Pa. Super. March 12, 

2014) (citations to record and footnote omitted).

This Court determined that the trial court failed to address and 

consider adequately Mother’s request for an upward deviation, vacated the 

order, and remanded for consideration of the deviation. Id. at 5-6. 

Following the remand, on June 11, 2014, the trial court heard 

arguments on Mother’s exception. Mother argued that the factors listed in 

Pa.R.C.P. 1910.16-5(b) militated in favor of an upward deviation. Notes of 

Testimony (“N.T.”), 6/11/2014, at 7-8. Essentially, Mother asserted that 

Father’s needs are being met in prison and that because he has no

expenses, his income should be used for the children. Id. at 8-9. Father 

responded that, because his income is below the self-support reserve, the 

guidelines provided for no support obligation. Moreover, Father asserted that

Mother has all the assets from the marriage at her disposal. Id. at 11-12.

On July 2, 2014, the trial court accepted Mother’s argument and issued 

an order that set Father’s child support obligation at $200.00 per month and 

$5.00 per month on arrears. Contemporaneously, the trial court set forth its 

reasoning for the deviation in a memorandum opinion. On July 30, 2014, 

Father filed a pro se notice of appeal. On August 5, 2014, the trial court 

ordered Father to file a concise statement of errors complained of on appeal 
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pursuant to Pa.R.A.P. 1925(b). Father filed a timely concise statement.2 

Instead of filing a Pa.R.A.P. 1925(a) opinion, the trial court relied upon its 

July 2, 2014 memorandum opinion.

Father raises the following issues for our review:

A. Did the trial court err[] and/or abuse[] its discretion in 

determining that an annuity payment from inheritance was 

“income” and not a gift.

B. Did the trial court err[] and/or abuse[] its discretion when it 

calculated child support obligation of [Father] based upon 

“income” from the gift of an inheritance.

C. Whether the trial court erred and/or abused its discretion 

when it failed to consider the mandate of the self-sufficient 

reserve, and imposed a child support obligation when [Father] 

had either “no income” or “income” before the SSR.

D. Did the trial court err[] and/or abused[] its discretion by 

failing to follow the Pa.R.C.P. to inquire into the actual living 

expenses before ordering an upward deviation in the child 

support guidelines in a low income case.

E. Whether the trial court erred and/or abused its discretion in 

deviating upward, in a low or no income case, from $50.00 to 

$200.00 per month the child support obligation without any 

unusual guidelines determining that an inheritance [sic].

F. Did the trial court err and/or abuse its discretion by deviating 

from the support guidelines without considering the relative 

assets and liabilities of the parties as required by the rules.

____________________________________________

2 Having been docketed on August 28, 2014, Father’s concise statement 

appears facially untimely. However, Father’s concise statement is dated 

August 12, 2014 and, giving Father the benefit of the prisoner mailbox rule, 

we deem it timely. See Copestakes v. Reichard-Copestakes, 925 A.2d 

874, 875 n.2 (Pa. Super. 2007).
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G. Did the trial court err and/or abuse its discretion when the 

child support obligation was deviated upward based on 

income and on any finding of “special needs” as required by 

statute.

Father’s Brief at 5-6.

Our standard of review of a child support order 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. 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.

Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012).

“[T]he support guidelines set forth the amount of support which a 

spouse or parent should pay on the basis of both parties’ net monthly 

incomes . . . and the number of persons being supported.” Pa.R.C.P. 

1910.16-1(a). There is a rebuttable presumption that the guideline amount 

of child support is the correct amount. Pa.R.C.P. 1910.16-1(d). Further, in 

low income cases, the guidelines provide for a self-support reserve so that a 

party has sufficient income for basic necessities. “When the obligor’s 

monthly net income is $867 or less, the court may award support only after 
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consideration of the parties’ actual financial resources and living expenses.”

Pa.R.C.P. 1910.16-2(e)(1)(C).3

However, “a court generally has reasonable discretion to deviate from 

the guidelines if the record supports the deviation.” Silver v. Pinskey, 981 

A.2d 284, 296 (Pa. Super. 2009). Rule 1910.16-5 addresses deviation from 

the guidelines as follows:

(a) Deviation. If the amount of support deviates from the 

amount of support determined by the guidelines, the trier of fact 

shall specify, in writing or on the record, the guideline amount of 

support, and the reasons for, and findings of fact justifying, the 

amount of the deviation.

Note: The deviation applies to the amount of the support 

obligation and not to the amount of income.

(b) Factors. In deciding whether to deviate from the amount of 

support determined by the guidelines, the trier of fact shall 

consider:

(1) unusual needs and unusual fixed obligations;

(2) other support obligations of the parties;

(3) other income in the household;

(4) ages of the children;

(5) the relative assets and liabilities of the parties;

(6) medical expenses not covered by insurance;

(7) standard of living of the parties and their children;

____________________________________________

3 As of August 9, 2013, the self-support reserve was increased to $931. 

However, we cite the version of the rule that was in effect at the time of the 

hearing. Further, Father’s annuity payment was less than either amount.
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(8) in a spousal support or alimony pendente lite case, the 

duration of the marriage from the date of marriage to the date of 

final separation; and

(9) other relevant and appropriate factors, including the best 

interests of the child or children.

Pa.R.C.P. 1910.16-5.

With that background, we turn to Father’s issues on appeal. In his 

first two issues, Father argues that the monthly amount that he receives is 

an inheritance or a gift, which is not considered income for purposes of 

support. Father’s Brief at 10-13. However, although the hearing officer 

calculated a guideline amount of support based upon an income of $0 to 

$900, the trial court did not treat the payment as income and did not 

calculate a guideline amount of support based on the annuity payment as 

income to Father. Instead, the trial court used the payment in its 

consideration of a deviation pursuant to Rule 1910.16-5, under which, the 

trial court can consider other assets of the parties and other circumstances. 

Gifts may be considered by the trial court when determining whether to 

deviate from the guidelines. Suzanne D. v. Stephen W., 65 A.3d 965, 970 

(Pa. Super. 2013). Additionally, our Supreme Court has held that 

inheritances may be treated the same way. Humphreys v. DeRoss, 790 

A.2d 281, 288 (Pa. 2002). Therefore, regardless of how Father’s annuity 

payments are classified, the trial court could still consider the payments in 

deciding whether a deviation was appropriate.
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Father’s next two arguments involve the self-support reserve. Father 

argues that, because his income is less than the self-support reserve, the 

trial court should not have awarded child support to Mother. Father 

contends that he was not given the opportunity to present evidence 

regarding his needs and expenses. Father’s Brief at 14-17.

To the extent that Father argues that the trial court could not consider 

that his basic needs are provided by the government, we disagree. When a 

party’s living expenses of food and lodging are subsidized by another, it may 

be a consideration in determining a child support obligation. Mooney v. 

Doutt, 766 A.2d 1271, 1274 (Pa. Super. 2001). Therefore, Father’s 

incarceration and its effect on his expenses could be considered by the trial 

court.

Unfortunately, the record did not suffice to allow the trial court to 

engage in that consideration. The record before the hearing officer4is 

devoid of evidence regarding Father’s “actual financial resources and living 

expenses.” See Pa.R.C.P. 1910.16-2(e)(1)(C). There was testimony 

regarding both parties’ income and Father’s annuity payment. N.T. at 6, 13, 

16. Additionally, Father questioned Mother about her monthly rent. N.T. at 

22. Although the trial court is likely correct that Father’s actual living 

____________________________________________

4 The June 11, 2014 proceeding before the trial court was solely for the 

purpose of arguing Mother’s exceptions and, therefore, is not evidence. 

Even if it were evidence, there is no discussion of the parties’ actual 

expenses.
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expenses are minimal, there is no evidence other than the fact of Father’s 

incarceration to support that conclusion. Additionally, Father indicated that 

his annuity payment is used for expenses. See N.T. at 15 (Father testifying 

that payment was “given our now for legal fees and things like that that I

have incurred during my appeal process”), 18 (Father testifying that the 

annuity payment “is committed money. This is not a question of what is 

available to me. This money is committed to other places.”). Therefore, 

there was insufficient evidence of record to support the trial court’s decision 

to grant Mother’s exception and order a deviation in Father’s support 

obligation. We are constrained to vacate the July 2, 2014 order and remand 

so that the trial court can develop a record to allow it to consider the actual 

resources and expenses of the parties as well as Mother’s request for a 

deviation.

Order vacated. Remand for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015