Sichelstiel, R. v. Sichelstiel, V.

J-A21005-21

2022 PA Super 48

ROBERT A. SICHELSTIEL, JR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : VICTORIA L. SICHELSTIEL : No. 1804 EDA 2020

Appeal from the Order Entered July 27, 2020, in the Court of Common Pleas of Montgomery County, Civil Division at No(s): No. 2003-05445.

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

OPINION BY KUNSELMAN, J.: FILED MARCH 17, 2022

Appellant Robert A. Sichelstiel, Jr. (Father) challenges the child support

obligation that the trial court ordered him to pay Appellee Victoria L. Sichelstiel

(Mother) for their 17-year-old daughter. Specifically, Father disputes the

calculation of his net income. In determining Father's net income, the hearing

officer included all of Father's "flow-through" income, which Father receives

from various business ventures. However, most of the flow-through income

was retained by the businesses, and Father only received relatively small

distributions. The trial court adopted the hearing officer's recommendation,

and it ordered Father to pay Mother $2,361.96 per month in child support.

On appeal, Father argues the flow-through income should have been excluded

from his net income, because as a minority owner of those businesses, he had

____________________________________________ * Former Justice specially assigned to the Superior Court. J-A21005-21

no control over the decision to retain or distribute earnings. After review, we

agree with Father's position. For the reasons below, we vacate that portion

of the trial court's order and remand for further proceedings.

The factual and procedural history may be abbreviated as follows: The

parties married in 1996, and the daughter was born in June 2002. The parties

divorced in 2003, and Father paid support directly to Mother for approximately

16 years. In May 2019, Mother filed a complaint for child support, and the

matter was set before a hearing officer. The hearing officer determined

Father's monthly net income was $22,842.80, and that it came from three

sources: Father's salary from his employment as a commercial real estate

broker; his one-time performance bonus; and his income from various

business ventures.

This appeal only involves the third category - Father's income from the

business ventures. Father owns a minority interest in nine separate

businesses. According to Father's 2018 tax return, Father received $155,014

in flow-through income from these businesses. Each of these businesses

elected to avoid tax liability at the corporate level by requiring the individual

owners to report the income on their personal tax returns.

This sort of income structure is commonly referred to as "flow-through"

or "pass-through" income because the income flows through the corporation

to the individual taxpayers. The taxpayers' flow-through income is reported

on the Schedule K-1 of Tax Form 1065. The Schedule K-1 denotes each

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individual's ownership share, and whether the business retained or distributed

its earnings to the owners.

Of Father's nine businesses, three distributed earnings totaling $23,041

to him; the rest of the businesses retained the balance of his flow-through

income (approximately $131,973). Moreover, Father testified he used

virtually all the distributed earnings he received to pay the tax liability that he

owed on the entirety of the flow-through income. Thus, at the support

hearing, Father argued that since none of the flow-through income ultimately

went into his pocket, none should be considered when calculating his child

support obligation.

To calculate Father's monthly net income, the hearing officer included

all of Father's flow-through income, both the distributed earnings and the

retaining earnings, totaling $155,014. The hearing officer then determined

Father's monthly net income was $22,842.80. Under the support guidelines,

the hearing officer recommended Father's child support in the amount of

$2,361.96 per month, effective December 1, 2019 forward.1

Father filed exceptions with the trial court, arguing that the hearing

officer misapplied the law on flow-through income. The trial court dismissed

____________________________________________ 1 Although irrelevant for our purposes, we note that the child support obligation was broken down into four separate time-periods to account for the changes in the medical insurance costs. The obligations spanned from: 1) May 2019 to August 2019; 2) August 2019 to October 2019; 3) October 2019 to November 2019; and 4) December 2019 forward. Father's obligation presumably terminated in June 2020, which was month when the parties' daughter turned 18 and was set to graduate from high school.

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Father's exceptions by its order dated July 27, 2020. In reaching its decision,

the trial court hypothesized that even if the hearing officer made a mistake,

the amount of Father's support obligation was still appropriate. The trial court

reasoned that, per Pennsylvania Rule of Procedure 1910.16-4, the hearing

officer could have deviated Father's obligation upward, because his daughter

does not spend any overnights with him. The court ruled that if the hearing

officer did not include Father's flow-through income, but deviated the award

upward, the result would be essentially the same. Father timely filed2 this

appeal, and he presents the following issues for our review:

1. Whether the trial court erred as a matter of law and committed an abuse of discretion in including Father's flow-through income from his minority interest in several real estate ventures, when Father presented uncontroverted evidence establishing that he does not have control over the distributions of income from the entities in which he has a non-controlling interest and only received actual distributions to pay taxes on the flow-through income and as a transfer to another entity for repair costs.

2. Whether the trial court erred as a matter of law and committed an abuse of discretion when it made a finding that the support hearing officer made credibility determinations regarding Father's income when neither the record or the recommendation and order of the support hearing officer support a

____________________________________________ 2 We observe that Father filed his Concise Statement of Matters of on Appeal on September 3, 2020. For reasons unclear, the trial court did not issue its Pa.R.A.P. 1925(a) opinion until March 30, 2021, almost seven months later. We remind the trial court that it shall file its opinion within 60 days of the filing of the notice of appeal – and within 30 days if the case is designated a "children's fast track appeal." See Pa.R.A.P. 1931(a) (emphasis added). This extended delay only complicates any potential overpayment upon remand.

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conclusion that the support hearing officer found Father's testimony or evidence lacking in credibility.

3. Whether the trial court erred as a matter of law and committed an abuse of discretion when it found that Father failed to meet his burden that he did not control the ability to retain or disburse earnings or that K-1 income reflected on a tax return was not actually received.

4. Whether the trial court erred as a matter of law and committed an abuse of discretion when it made a finding that the support hearing officer could have increased the base order by 30%, or $670.80 per month, pursuant to Pennsylvania Rule of Civil Procedure 1910.16-4 for lack of parenting time.

Father's Brief at 8 (capitalization adjusted).

We begin with our well-settled standard of review in matters concerning

child support orders:

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.

Silver v. Pinskey, 981 A.2d 284, 291 (Pa. Super. 2009) (en banc) (citation

omitted).

In Pennsylvania, child support awards are calculated in accordance with

specific statutory guidelines, using a complex system that accounts for the

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obligor's capacity to pay and the reasonable needs of the particular children.

Commonwealth v. Hall, 80 A.3d 1204, 1216 (Pa. 2013). The guidelines

provide extremely detailed instructions for calculating child support awards

based on the obligor's net income from all sources. Id. at 1217; see also 23

Pa.C.S.A. § 4322(a). As a general rule, the amount of support to be awarded

is based upon the parties' monthly net income over at least a six-month

average. See Pa.R.C.P. 1910.16-2.

Moreover, the Domestic Relations Code defines the term "income" and

includes income from any source. Pa.R.C.P. 1910.16-2(a); see also 23

Pa.C.S.A. § 4302. Income is defined 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.A. § 4302 (emphasis added).

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To arrive at the monthly net income, the court shall deduct specific items

from the monthly gross income. See Pa.R.C.P. 1910.16-2(c)(1). Rule

1910.16-2(c)(1) provides, in relevant part:

(1) Unless these rules provide otherwise, the trier-of-fact shall deduct only the following items from monthly gross income to arrive at monthly net income:

(i) federal, state, and local income taxes;

(ii) unemployment compensation taxes and Local Services Taxes (LST);

(iii) F.I.C.A. payments (Social Security, Medicare and Self- Employment taxes) and non-voluntary retirement payments;

(iv) mandatory union dues; and

(v) alimony paid to the other party.

Pa.R.C.P. 1910.16-2(c)(1).

With these principles in mind, we turn to the substance of Father's

appeal. We address contemporaneously Father's first three appellate issues,

as they all pertain to the trial court's treatment of Father's flow-through

income. Both the trial court and Father agree this case is governed by Fennell

v. Fennell, 753 A.2d 866 (Pa. Super. 2000), but they differ on how Fennell

should be applied.3

In Fennell, the mother sought child support from the father. The

question was whether the father's flow-through income should be included

when calculating his monthly net income. On his tax return, the father

____________________________________________ 3 Mother chose not to submit an appellee brief.

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reported flow-through income from a company called Muscle Products, in

which the father owned a minority stake. Muscle Products was a Subchapter

S corporation, meaning that just like the businesses in the instant case, Muscle

Products could elect to avoid tax at the corporate level by requiring individual

shareholders to pay tax on corporate earnings. Muscle Products did not

distribute its corporate earnings to the father; instead, the company retained

the father's share of its earnings and reinvested it in the company. The father

never received Muscle Products profit in cash for his personal use. None of

that made much difference to the Internal Revenue Service, of course, which

still required the father to report the income on his personal tax return. See

generally Fennell, 753 A.2d at 867.

The issue in Fennell was whether, for child support purposes, the

father's net income should include his share of corporate earnings, even

though he did not actually take home any of that income. The trial court

acknowledged that the father owned only a minority interest in the

corporation, and it also agreed with the father that the corporation's decision

to retain the father's earnings was a "business decision" – i.e., to grow or

preserve the company. Id. Importantly, "[t]here was no finding…that the

retention of earnings in Muscle Products in any way constituted an effort to

shield income from Father's support obligation." Id. Still, the trial court

included the father's share of the corporate earnings in its child support

calculations, despite Muscle Products retention of those earnings. Id. at 867-

868. The father appealed, and we concluded the trial court erred.

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We recognized that "all benefits flowing from corporate ownership must

be considered in determining income available to calculate a support

obligation." Id. at 868 (citations omitted). "[T]he owner of a closely-held

corporation cannot avoid a support obligation by sheltering income that should

be available for support by manipulating salary, perquisites, corporate

expenditures, and/or corporate distributions amounts." Id. "By the same

token, however, we cannot attribute as income funds not actually available

to or received by the party." Id. (emphasis added).

Because the father did not actually receive corporate distributions, nor

did the father have the ability to control whether the company would issue

distributions or retain its earnings, we concluded that the trial court erred

when it considered that income. Id. at 869. We clarified, however, that our

holding did "not create a presumption that corporate retained earnings per se

are to be excluded from available income for purposes of support calculations."

Id. (footnote omitted). Rather, "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 still will bear the burden of proving that such

actions were ‘necessary to maintain or preserve' the business." Id. (emphasis

added) (citation omitted).

Notably, Judge Del Sole dissented from the Majority's decision. Judge

Del Sole explained that while he agreed retained corporate earnings may not

always be considered income for support, he reasoned that it was the burden

of the party seeking exclusion to convince the court. Judge Del Sole would

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have affirmed the trial court, because the trial court was not persuaded by the

father's argument. See id. (Dissenting Opinion).

Returning to the instant case, the trial court and Father disagree over a

party's burden of proof regarding the party's control over the business funds.

Father argues he met his burden, merely by showing that he was a minority

owner in each business. Conversely, the trial court determined Father did not

meet his burden, because the hearing officer found Father's testimony and

evidence lacked credibility. See Trial Court Opinion (T.C.O.), 3/30/21, at 12.

The trial court opined:

Father did not meet his burden in proving his inability to control the retention or disbursement of earnings of all these entities. Instead, Father's focus during the hearing was his simple assertion that he did not receive the K-1 [i.e., the flow-through] income, per se, just the amount to pay taxes. However, this falls far short of the requirement that he provide detailed evidence to back up this claim. The [hearing] officer correctly proceeded to determine Father's income based on what was presented. [The trial court] will not substitute the credibility determinations or the judgment on this point for that of the hearing officer.

Id. (footnote omitted, capitalization adjusted).

The trial court went on to explain that, although the hearing officer's

report and recommendation were only advisory, they should be given the

fullest consideration, especially on the issue of witness credibility, because the

hearing officer had the opportunity to observe and assess the behavior and

demeanor of the parties. Id. (citing Gutteridge v. J3 Energy Group, Inc.,

165 A.3d 908, 916 (Pa. Super. 2017)).

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On appeal, Father challenges the trial court's rationale, arguing that the

hearing officer never made explicit credibility determinations. Father

maintains the trial court only inferred that the hearing officer made an adverse

credibility finding, simply because the hearing officer ruled for Mother. Father

concludes that the trial court's reliance on such an inference was erroneous.

For support, Father cites Page's Dept. Store v. Velardi, 346 A.2d 556,

561 (Pa. 1975). In Page's Dept. Store, our Supreme Court held, "[a]n

appellate court or other reviewing body should not assume from the absence

of a finding on a specific point that the question has been resolved in favor of

the party who prevailed below, for the point may have been overlooked or the

law misunderstood at the trial or hearing level." Id. Father also cites Justice

Newman's concurring and dissenting statement in Daniels v. Worker's

Compensation Appeal Board (Tri State Trans.), 828 A.2d 1043, 1054-57

(Pa. 2001), which articulates the "very real concern" that a lower court will

sometimes seek to insulate its findings from review by designating them as

credibility findings.

After review, we agree with Father's position. The trial court improperly

inferred that the hearing officer's decision was based on Father's lack of

credibility. Apart from a brief accounting of what dollar amounts were used

in the support formula, the hearing officer's report and recommendation

contained no factual findings, let alone credibility findings. Similarly, our

review of the transcript discloses no other testimonial exchange suggesting

that the hearing officer had any concern with Father's testimony or evidence.

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Father testified what the flow-through income was, where it came from, and

how he used the distributed earnings to cover his tax bill. This testimony was

neither contested by Mother, nor investigated by the hearing officer. There

was no inquiry at all into Father's ability to control whether his various

businesses issued distributions, or whether it was the businesses' standing

practice to retain earnings. The hearing officer made no finding that Father

was attempting to shield his income to avoid paying support.

Contrary to the trial court's view, Father corroborated his testimony with

documentation, specially Exhibit D-6. Exhibit D-6 contained the respective K-

1 Schedules showing Father's ownership share of the business, the flow-

through income for each business, and whether that business issued a

distribution. Initially, Father had trouble emailing Exhibit D-6 to the hearing

officer, due to the size of the electronic file. The hearing officer allowed Father

to fax the documentation after the hearing, at which point the hearing officer

said she would review the entire matter.

Based on these facts, the trial court should not have assumed that the

hearing officer's decision was predicated on a credibility finding. Father's

minority ownerships were only cursorily addressed at the hearing, and not

addressed at all in the hearing officer's report. We cannot infer from the

hearing officer's silence on this point that she found Father had the ability to

control the distribution of corporate earnings, or that Father was shielding his

income from his support obligation. After all, one could just as easily infer the

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hearing officer "overlooked" or "misunderstood" the law. See Page's Dept.

Store, supra.4

Still, an error of judgment is not tantamount to an abuse of discretion.

Silver, supra. "[T]his Court may only reverse the trial court's determination

where the order cannot be sustained on any valid ground." Id. Rather, "[w]e

will not interfere with the broad discretion afforded the trial court" unless there

is "insufficient evidence to sustain the support order." Id.

Here, after review, we conclude the record does not sustain the support

order. The record only contained Father's testimony and documentation,

which discloses the following: Father testified that he owns minority interests

in various businesses; and his Exhibit D-6 (the respective K-1 Schedules for

each business) identifies his respective ownership interest, his share of the

corporate earnings (if any), and the amount of the distribution (if any). See

N.T., at 19. Father's minority interests, across nine businesses, ranged from

as little as 2.75% to as much as 28.95%.5 ____________________________________________ 4 For instance, a plausible reading of the cold transcript suggests that the hearing officer failed to understand why an individual would have to claim flow-through income to the IRS, even though the individual did not actually receive of the income. See N.T., 11/29/19 at 19.

5 We note that the trial court remarked in its Rule 1925(a) opinion that it appeared the K-1 Schedules were never submitted, and that they did not appear in the record. See T.C.O. at 3, n.11. However, our review of the record reveals Father abided by the hearing officer's directive and faxed the K-1 Schedules four days after the hearing. Father then included the correspondence and the K-1 Schedules in his exceptions before the trial court. Moreover, it appears the trial court reviewed Father's K-1 Schedules, before opining that the hearing officer's decision should be affirmed. See id. at 7. (Footnote Continued Next Page)

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Father presented uncontested testimony and evidence that he was a

minority owner; and there was no finding, nor evidence to support the

inference, that the businesses attempted to shield income from Father's

support obligation by retaining his earnings instead of distributing them.

Therefore, we conclude Father met his burden to prove he had no control over

the decision to retain or distribute earnings. See Fennell, 753 A.2d at 869.

In his Brief, Father suggests that a minority owner, by definition, cannot

control the retention or disbursement of corporate earnings. See Father's

Brief, at 19. We do not quite go that far. For instance, Mother could have

challenged Father's ability to control the distribution of funds, notwithstanding

Father's minority ownership; or, the hearing officer could have asked other

relevant questions to determine whether Father was shielding his income

(e.g., whether Father's partners were similarly treated). In other words,

information gleaned from a minority owner's tax return can be questioned.

See, e.g., Labar v. Labar, 731 A.2d 1252, 1255 (Pa. 1999) ("[I]ncome must

reflect actual available financial resources and not the oft-time fictional

financial picture which develops as a result of depreciation deductions taken

against…income as permitted by the federal income tax laws.") (citation

omitted)).

In this case, however, all the court had was Father's testimony and

documentation that he was a minority owner. Nothing in the record indicates

Father had control over whether the corporate earnings were distributed or ____________________________________________

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retained. As such, Father had no burden to show that businesses' retention

of their earnings were "‘necessary to maintain or preserve' the business." See

Fennell, 753 A.2d at 869. Therefore, the trial court erred by considering the

retained portion of Father's flow-through income from his various business

ventures.

While Father suggests the court should not have considered any of his

flow-through income, we disagree. Our clear case law provides that a

corporate distribution, even if used to pay a party's tax liability, nevertheless

counts as income for purposes of child support calculations. See Spahr v.

Spahr, 869 A.2d 548, 553 (Pa. Super. 2005); see also 23 Pa.C.S.A. §

4302 (defining "income" as "distributive share of partnership gross income").

Nevertheless, Father is entitled to relief on his first three issues.

Next, we address Father's final issue. Anticipating that our disposition

would necessitate a recalculation of his support obligation, Father seeks to

guard against a future error – namely, that the trial court could deviate his

guideline obligation upward by 30%. See generally Father's Brief at 36-43;

see also Pa.R.C.P. 1910.16-4 (Explanatory Comment – 2010). 6 Recall that ____________________________________________ 6 The 2010 Explanatory Comment to Pa.R.C.P. 1910.16-4 provides, in relevant part:

The basic support schedule incorporates an assumption that the children spend 30% of the time with the obligor and that the obligor makes direct expenditures on their behalf during that time. Variable expenditures, such as food and entertainment, that fluctuate based upon parenting time were adjusted in the schedule to build in the assumption of 30% parenting time. Upward deviation should be considered in cases in which the obligor has little or no contact with the children. However, an upward (Footnote Continued Next Page)

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when the trial court dismissed Father's exceptions, it hypothesized that, even

if the hearing officer was wrong to include the flow-through income, the

support obligation did not have to be recalculated. The trial court reasoned

that the hearing officer could have just as easily deviated Father's obligation

upward and reached the same result. On appeal, Father concedes an upward

deviation is allowed under the support Rules. His argument is that

Explanatory Comment's presumption of 30% custodial time does not mean

that the entire support obligation can be deviated upward by 30%.

Because no deviation was imposed in this case, and because we remand

for a new calculation, we decline to address this issue. Our role as an error-

correcting court "does not include making independent factual

determinations." See, e.g., M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super.

2013). Moreover, "[t]he courts in our Commonwealth do not render decisions

in the abstract or offer purely advisory opinions[.]" Pittsburgh Palisades

Park, LLC. V. Com., 888 A.2d 655, 659 (Pa. 2005) (citation omitted).

To conclude: the trial court erred when it accepted the hearing officer's

recommendation that all of Father's flow-through income, including that

portion retained by his various business ventures, should be considered for

support purposes. On remand, the trial court may only consider that portion

____________________________________________

deviation may not be appropriate if an obligor has infrequent overnight contact with the child, but provides meals and entertainment during daytime contact. Fluctuating expenditures should be considered rather than the extent of overnight time.

Pa.R.C.P. 1910.16-4 (Explanatory Comment – 2010).

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of Father's flow-through income which was distributed to him. Finally, we

decline to issue an advisory opinion regarding the propriety of an upward

deviation.

Order vacated in part. Case remanded for proceedings consistent with

this Opinion. Jurisdiction relinquished.

President Judge Emeritus Stevens joins this Opinion.

Judge Nichols files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/17/2022

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