J-A18032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELIZABETH A. SKINNER                         IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

JAMES T. SKINNER

                        Appellee                 No. 2091 MDA 2013


              Appeal from the Order Entered October 30, 2013
               In the Court of Common Pleas of York County
                Domestic Relations at No(s): 01886 SA 2006


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

MEMORANDUM BY LAZARUS, J.:                      FILED AUGUST 26, 2014



Court of Common Pleas of York County assessing her earning capacity to be

$147,410.00. Upon review, we affirm.

     The facts and procedural history of this appeal are extensive and may

be summarized as follows:      Father is retired from the military and is

currently employed as an ROTC instructor at York City High School.    The



Mother is a physician with Well-Span Health, where she receives an annual

salary of $65,000.00 to work part-time.

     Mother and Father were married on September 9, 2000.       One child
J-A18032-14



was nine years old and in fourth grade. The parties separated in February of

2006, and divorced on July 14, 2009.

     The court entered an initial support order on September 21, 2006,

directing Father to pay Mother child support and alimony pendent lite

                   rt entered a second support order on June 4, 2007,

following a de novo support hearing at which the trial court determined

Mother had an earning capacity of $85,000.00 per year.

     Following a de novo hearing on December 8, 2009, the court entered a

modified support order on February 17, 2010, directing Father to pay child

support and APL.    On March 11, 2010, the court modified this order by



APL payment to $401.00 per month to reflect the                       -upon

50/50 custody arrangement.

     Both parties appealed the March 11, 2010 order. The Superior Court

upheld the decision of the trial court in a memorandum opinion on January

12, 2011, determining that the trial court did not abuse its discretion in

                        -

of the parties. Skinner v. Skinner, No. 440 MDA 2010 and No. 501 MDA

2010, unpublished memorandum (Pa. Super. filed January 12, 2011). At the

time, Mother was the primary caretaker of the child and the child attended a

half-day kindergarten program.

     On May 6, 2013, Father filed a petition to modify the support order.

Father also filed a petition for an amendment of APL on May 8, 2013.      A

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support conference occurred on June 24, 2013, and on July 24, 2013, the



capacity.   The conference officer assessed a full-time earning capacity for

Mother of approximately $135,000.00. Mother requested a de novo hearing

on August 5, 2013.    The case was scheduled as a special support hearing

due to the complexity of the matter and was heard before the court on

October 15, 2013.    On October 30, 2013, the trial court issued an order

holding Mother to a full-time earning capacity of $147,410.00 per year and

terminating APL. This timely appeal followed.

      On appeal, Mother raises four issues:

      1. Whether the trial court abused its discretion by overriding
         and/or misapplying the law allowing Father to request
         modification of support with a substantial change in
         circumstances on the same issues as previously decided by
         the trial court on February 17, 2010, and upheld by the
         Superior Court on January 12, 2011, in violation of collateral
         estoppel.

      2. Whether the trial court abused its discretion by overriding
         and/or misapplying the law by imputing an earning capacity
         on plaintiff that is greater than one full-time position and is


      3. Whether the trial court abused its discretion by overriding
         and/or misapplying the law by imputing an inflated earning
         capacity on Mother without adequate support on the record.

      4. Whether the trial court abused its discretion by overriding
                                                                     -
         time earning capacity by using a straight hourly rate when
         plaintiff is not paid hourly, and cannot get paid the amount
         set by the trial court simply by working 40 hours per week.




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      Our standard and scope of review for an order of child support is well

settled:

      When evaluating a support order, this Court may only reverse

      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

      of child support is to promote the c

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

      Mother first argues that the trial court violated the doctrine of

collateral estoppel when it permitted Father to request a modification of the

support order because the issue had been previously litigated.         It is well

established that the doctrine of collateral estoppel will bar review of an issue

only when the following four criteria are met:

      [1] The issue decided in a prior action must be identical to one
      presented in a later action; [2] the prior action must have
      resulted in a final judgment on the merits; [3] the party against
      whom collateral estoppel is asserted must have been a party to
      the prior action, or in privity with a party to the prior action; and
      [4] the party against whom collateral estoppel is asserted must
      have had a full and fair opportunity to litigate the issue in the
      prior action.

Ewing v. Ewing, 843 A.2d 1282, 1286 (Pa. Super. 2004). Furthermore, we

observe that in Pennsylvania, child support orders are always modifiable if a




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party can show a change of circumstances. See Nicholson v. Combs, 703

A.2d 407 (Pa. Super. 1997).

       There is no dispute that three of the four elements in the above test

for collateral estoppel are met in this matter. The earlier action resulted in a

final judgment on the merits; Father was a party to the prior action; and

Father had a full and fair opportunity to litigate the issues in the prior action.

Whether collateral estoppel applies to bar review in this case ultimately turns

on whether the issues presented in the two actions are identical.



that Mother should be held to an earning capacity of $85,000.00 per year

because, at that particular time, Mother was the primary custodial parent of

a kindergarten-aged child. In the present matter, Mother and Father equally

share physical custody of their child, who is now five years older and in the

fourth grade. The issues in the two cases, while similar, are not identical.

Because Father has demonstrated a change of circumstances that alters the

issues at bar, the doctrine of collateral estoppel does not apply here. See

id.



dete




incomes and earning capaciti                           Mackay v. Mackay, 984

A.2d   529,   537   (Pa.   Super.   2009)   (citing   23   Pa.C.S.   §   4322(a)).

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Pennsylvania Rule of Civil Procedure 1910.16(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
                                                       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
      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 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 defines earning

              that amount which the person could realistically earn under the

circumstances, considering his or her age, health, mental and physical

                            Mackay, 984 A.2d at 537 (citing Gephert v.

Gephert, 764 A.2d 613, 615 (Pa. Super. 2000)). We further note that,

      The trial court, as the finder of fact, is entitled to weigh the
      evidence and assess the credibility of witnesses. A support order
      will not be disturbed on appeal unless the trial court failed to
      consider properly the requirements of the Rules of Civil
      Procedure Governing Actions for Support, Pa.R.C.P. 1910.1 et
      seq., or abused its discretion in applying these Rules.

Krankowski v. O'Neil, 928 A.2d 284, 286-87 (Pa. Super. 2007) (citation

omitted).




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       At the support hearing on October 15, 2013, Mother presented a

vocational expert who testified about her earning capacity.            The expert



year based on her current employment contract. N.T. Hearing, 10/15/13, at

16.    The expert further testified that Mother could realistically earn

$140,460.00 based on her education and regional opportunities. Id. at 31.

                                                                            Id. at

32.

       Mother requested that the trial court use an hourly wage to determine

her earning capacity.         The trial court found this to be an appropriate



                                                                        ility given
                                                  1
                                                      Accordingly, the trial court



                                        2
                                            Moreover, the trial court determined a
____________________________________________


1
  Mother is a board-certified physician who has continuing education credits
and years of experience. According to the chart attached to the expert
report, the expert suggested the trial court hold Mother to an hourly wage
slightly above that of a Physician Assistant. Trial Court Opinion, 12/30/13,
at 3.
2



2013. The total, $221,115.00 was divided by three to calculate her average
annual income of $73,705.00. The court divided this amount by 52 weeks,
and the weekly wage was then divided by 20, the number of hours Mother

(Footnote Continued Next Page)


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part-time earning capacity was no longer appropriate given the change in

circumstances:

      Child is now in fourth (4th) grade, and the parties equally share

      support Child on a part-
      on the quality of care for Child or need to provide care for Child
      . . . Mother is no longer the primary physical caretaker as she
      was at the time of the last hearing on December 8, 2009.

      changed, and this court must consider the significant changes.

Trial Court Opinion, 10/28/12, at 6.

      The trial court, as finder of fact, weighed the evidence and assessed



age, education, training, work experience, earnings history and child care

responsibilities as required by Pa.R.C.P. 1910.16-2(d)(4), and rejected the



capacity, the trial court held Mother to an amount that she could realistically

earn under the present circumstances.3            Mackay, supra.   Because this




                       _______________________
(Footnote Continued)

over the past three years. The trial court deemed this number appropriate
to calculate what Mother could realistically earn if she worked a full-time

by 40 hours resulted in a weekly wage of $2,834.80 and a yearly total of
approximately $147,410.00. Trial Court Opinion, 12/30/13, at 3.
3
  Of note, mother presented no evidence that she could not obtain full time
employment. Her choice to work part time does not constrain the trial court
or this Court to accept that choice as evidence of her earning capacity.



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J-A18032-14



not second-

capacity. Id. at 533.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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