Alimony & Spousal Support

Financial Status Audit Of Husband Used To Determine Income For Purposes Of APL And Child Support

In the family law, alimony pendente lite child support case of Whiteside-Wascavage v. Wascavage, PICS Case No. 15-0628, (Pa.Super., April 13, 2015) the Honorable Judith Ference Olson, writing on behalf of the Pennsylvania Superior Court, ruled that the trial court did not abuse its discretion in allowing a forensic auditor to use a financial status audit to determine husband’s income but not wife’s because husband refused to supply requested documentation.

As part of a divorce proceeding the parties were ordered to share the $5,000 fee for a forensic accounting to determine the parties’ incomes. During the litigation, the trial court authorized an increase in the fee without setting a new cap. After trial, the court entered an order providing for child support and alimony pendent lite, ordered husband to pay 80 percent of the $25,000 forensic accounting fee and awarded wife attorney fees. The trial court granted husband’s motion for reconsideration and reinstated and clarified its child support and APL order.

On appeal, husband contended that the forensic auditor impermissibly used a financial status audit to determine husband’s income. The trial court used the most accurate method available to it since husband refused to turn over necessary documentation to allow the forensic auditor to precisely calculate husband’s income. Forensic auditor used the same method employed by the IRS in such situations. Trial court’s reliance on the financial status audit was not an abuse of discretion given husband’s failure to cooperate. Furthermore, trial court did not abuse its discretion in declining to employ the same accounting method with respect to wife because wife, unlike husband, was not engaged in a cash only business and there was no requirement that the same methodology be applied to both parties.

Husband’s argument that the trial court erred by not crediting him for expenditures related to health insurance premiums paid for wife and child was waived because husband failed to cite any portion of the record or make any argument regarding the amount of credit to which he was allegedly entitled. Furthermore, the court lacked jurisdiction to consider husband’s challenges to the trial court’s award of APL. Additionally, trial court did not abuse its discretion by declining to adjust husband’s child support obligation based on his custodial time with the child because the record showed that husband had custody of the child less than 40 percent of the time even though he was entitled to 50/50 shared custody.

Husband correctly pointed out that the trial court used the wrong set of support guidelines in calculating the support owed from March 24, 2010 through May 11, 2010. Accordingly the trial court’s order was modified to reflect that the total amount due for that time period was $872 per month instead of $903 per month.

Trial court did not abuse its discretion in allocating the fee of the forensic auditor. Husband’s monthly income was approximately eight times as much as wife’s and the increased fee was mostly due to husband’s refusal to provide the requested documentation. Additionally, trial court did not err in awarding attorney fees to wife because husband’s conduct in refusing to comply with document requests filed by wife and ordered by court was unreasonable and obstreperous.

Husband further contended that the trial court abused its discretion by declining to permit him to offer additional evidence at the hearing on his motion to reconsider. The sole reason husband offered for the request was that he had obtained new counsel. After lengthy pre-trial proceedings, a three day trial and post-trial briefing, there was no indication that husband’s proposed new evidence had been unavailable for trial and the trial court reasonably concluded that granting the motion to reopen would prejudice wife.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 38PLW397 (Tuesday, April 28, 2015)

Filed Under: Family Law; Visitation; Contempt Custody and Child Support, Alimony Pendente Lite; Financial Status Audit

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