Carmen, D. v. Carmen, G.

J-A23033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANA LEE CARMEN, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GARY JOHN CARMEN, : : Appellant : No. 779 WDA 2013

Appeal from the Order entered on April 9, 2013 in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD-08-7066-004

DANA LEE CARMEN, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : GARY JOHN CARMEN, : : Appellee : No. 886 WDA 2013

Appeal from the Orders entered on April 9, 2013 and May 8, 2013 in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD-08-7066-004

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2014

1 We affirm in

part and reverse and remand in part.

1 We note that trial court subsequently entered an Amended Order on May 8, 2013, which corrected a clerical error in the April 9, 2013 Order.

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The trial court set forth the relevant factual and procedural history in its Opinion, which we incorporate herein by reference. See Trial Court Opinion, 8/9/13, at 1-3.

Husband and Wife each filed a timely Notice of Appeal and a courtordered Concise Statement of Matters Complained of on Appeal.2

On appeal, Husband raises the following issues for our review:

1. [Whether t]he [trial c]ourt erred in deciding the need for [W]ife and children was $400.00 [per] month for food and $300.00 [per] month for clothing[?]

2. [Whether t]he [trial c]ourt erred in its determination of net income for [Husband], pursuant to Pa.R.C.P. 1910.16, 1-5[?]

2 Husband filed his Notice of Appeal on May 7, 2013. The trial court entered its Amended Order the following day, on May 8, 2013. Ordinarily, after an appeal is taken, the trial court may no longer proceed further in the matter. See Pa.R.A.P. 1701(a). However, Rule 1701(b) provides certain exceptions to the general prohibition, and permits the trial court to, among other

appeal of the matter is pending. Pa.R.A.P. 1701(b)(1). Here, the trial court entered the May 8, 2013 Amended Order in an effort to formally correct its April 9, 2013 Order, which inadvertently omitted the $48.00 health insurance contribution for D., as previously determined by the hearing officer. Because the trial court did not make a substantive modification of

Order was a permissible correction under Rule 1701(b)(1). See Pa.R.A.P 1701(b)(1); see also Sell v. Sell, 714 A.2d 1057, 1063 (Pa. Super. 1998)

counsel fees to mother, after an appeal of the prior support order had been filed, was permitted by Rule 1701(b)(1) because the award of counsel fees was already of record, but had been inadvertently omitted from the prior order); Hoag v. Hoag, 646 A.2d 578, 580 n.2 (Pa. Super. 1994) (holding

been filed, to clarify and correct its prior support order, conformed with Rule 1701(b)(1) because it was not a substantive modification of the prior support order).

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3. borrowing money from a friend ($9,000.00) was income and

mother was income[?]

4. [Whether t]he [trial c]ourt erred in not allowing [a] credit to Husband of the expenses [Husband] spent in accord with the y share the reasonable and ordinary

5. [Whether t]he [trial c]ourt erred in apportionment of the $64,000 left in the marital accounts[?]

6. [Whether t]he [trial c]ourt erred in awarding attorney fees without specific findings of fact listed that are capable of being addressed[?]

7. [Whether t]he [trial c]ourt erred in requiring Husband to pay $25,000.00 from the value of his life insurance policy which does not exist[?]

8. [Whether t]he [trial c]ourt erred and miscalculated the cost

Wife[?]

9. [Whether t]he [trial c]ourt erred by not permitting [Husband]

Friedlander),] who would speak original).

The trial court reviewed relevant law, and concluded that most of his issues had been waived. See Trial Court Opinion, 8/9/13, at 3-6. The trial court determined that Husband had only preserved claims relating to (1) calculation of child support arrears; and (2) calculation of the child support obligation. See id. at 6. We adopt

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the sound reasoning of the trial court, and will review only those claims properly preserved by Husband. See id.

With regard to the calculation of child support arrears, the trial court addressed this issue and determined that an error was made in calculating issue. See id. at 6-7. The trial court determined that the correct amount of child support arrears should have been $16,360.28. See id. We agree with the reasoning of the trial court, and reverse and remand as to this issue for recalculation of the child support arrears.

With regard to the calculation of the child support obligation, Husband argues that the trial court erred by determining that his monthly income is

-12. Husband claims that his income calculation in 2008. Id. at 12. Husband asserts that the trial court failed to his income. Id. Husband asserts that the lower court erred by determining that loans made to him were for attorney fees, despite his claim that they

Id. at 13. Husband argues that the trial supplement products, including rebates and commissions, in its calculations. Id. at 13-15. Husband contends that the trial court erred by not permitting the rebuttal deposition of Dr. Friedlander on the issue of whether T. is

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disabled. Id. at 29-30. According to Husband, Dr. Friedlander would have testified that T. can see out of both eyes and, with special glasses, can see to the left. Id to take the rebuttal deposition of Dr. Friedlander. Id. at 30-31.

The trial court set forth the relevant law and addressed this issue, determining that it lacks merit. See Trial Court Opinion, 8/9/13, at 7-11. We agree with the reasoning of the trial court and affirm on this basis as to this issue. See id.

In her cross appeal, Wife raises the following issues for our review:

1. [Whether t]he [trial c]ourt erred and/or abused its discretion in finding that Husband had a net income of only $2,244.00 [per month,] and failing to find that Husband had a[n] earning capacity of $8,169.32 per month, which is consistent with his actual monies received per month through his bank account, his perquisites from employment[,] and previously being paid in cash[?]

2. [Whether t]he [trial c]ourt erred and/or abused its discretion in awarding only $5,000.00 in counsel fees [to Wife,] despite

his failure to complete discovery, and his attempts to amend his pre-trial statement and present additional witnesses during trial, all of which are conduct permitting the award of attorney fees pursuant to 42 Pa.C.S.A. § 2503(7) and 23 Pa.C.S.A. § 4351[,] and for also failing to find that [Husband] owned additional and sufficient assets which could be used to

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3 erred by finding that Husband had a monthly income of only $2,244.00. Id. 7. Wife claims that she established, without contradiction, that $8,169.32

Id. at 7. Wife claims that Husband, a self-employed general contractor,4 had the ability to manipulate his income. Id regarding his income was incredible, as he was unable to provide any details regarding any of his contracting jobs or the number of hours he worked per day or per week. Id. Wife contends that, although Husband claimed that he is unable to work as much as he previously worked due to health concerns, he presented little or no evidence regarding his health concerns or their impact on his ability to work. Id. at 8-9. Wife asserts that Husband has willfully failed to obtain or maintain appropriate employment. Id. at 9. Wife argues that the trial court erred by not attributing to Husband all of the advantages he enjoyed by running his own business, including the payment

i.e., truck payment, car payment, automobile insurance, health insurance, gasoline, etc.) totaling $4,877.52 per month. Id. According to Wife, these payments

3 We note that Wife failed to include a statement of questions raised on appeal in her brief. See Pa.R.A.P. 2111(a)(4), and 2116(a). However, we will not dismiss her cross appeal on this basis. 4 Husband is the president and sole employee of his company, Fred Carmen & Son.

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are income to Husband in the form of either compensation or bonuses. Id. 2009 and 2011, the company was profitable, netting an income to Husband of $5,400.00 to $7,000.00 per month. Id. at 10. Wife also contends that the trial court failed to attribute, as income to Husband, various deposits made into his personal checking account. Id. at 10-11. Wife claims that the made to Husband as income, noting that Husband produced no documentation regarding the loans, and merely claimed that the money was given to him by a friend. Id clearly cash payments for work performed by Husband, and that they should have been attributed as income to Husband. Id. at 11-12.

The trial court set forth the relevant law and addressed this issue before determining that it lacks merit. See Trial Court Opinion, 8/9/13, at 7-9. We agree with the reasoning of the trial court and affirm on this basis as to this issue. See id.

erred by awarding her only $5,000.00 in attorney fees, despite finding that 5

12. Wife asserts that the trial court erred by failing to award her attorney

5 Although Husband challenged the award of attorney fees, the trial court found that he had waived this issue. See Trial Court Opinion, 8/9/13, at 6 n.7.

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fees pursuant to 23 Pa.C.S.A. § 4351. Id. Wife claims that the trial court improperly ruled that there was no fund available to Husband for the payment of her attorney fees. Id. at 12-13. Wife asserts that the trial obdurate or vexatious Id. at 13. various discovery, evidentiary and procedural violations, and asserts that she incurred additional attorney fees by having to contest his violations. Id. at 14-15. Wife claims that, based on the additional attorney fees that she court erred by awarding her only $5,000.00 in attorney fees. Id.

The trial court set forth the relevant law and addressed this issue, determining that it lacks merit. See Trial Court Opinion, 8/9/13, at 11-14. We agree with the reasoning of the trial court and affirm on this basis as to this issue. See id.

Affirmed in part, and reversed and remanded in part in accordance with this Memorandum; Superior Court jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2014

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