J-A04025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.S.R.                                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                     Appellant                 :
                                               :
                                               :
              v.                               :
                                               :
                                               :
R.E.R                                          :   No. 1374 MDA 2017

                Appeal from the Order Entered August 18, 2017
     In the Court of Common Pleas of Snyder County Domestic Relations at
                             No(s): 2017-00045

BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 11, 2018

        Appellant N.S.R. appeals from the child support order entered following

a de novo hearing. Appellant argues that the trial court should have assessed

her earning capacity at the minimum wage over a thirty-hour work week. We

affirm.

        On April 21, 2017, Appellant filed a complaint for spousal support and

child support against Appellee R.E.R. A support conference was held on May

24, 2017, at which time Appellant was not employed. At the conference, the

hearing officer assigned Appellant an earning capacity of $16 per hour based

upon her prior employment as a certified medical coder.           The trial court

entered an interim support order for the parties’ three minor children, using

Appellee’s actual earnings and Appellant’s $16-per-hour earning capacity.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        Appellant filed a timely appeal of the interim order to the Court of

Common Pleas, and the trial court conducted a de novo hearing on August 18,

2017. The only item at issue was Appellant’s earning capacity. Appellant

testified that she was fifty-five years old and had a bachelor’s degree in

elementary education, a master’s degree in reading education, and a

certificate as a professional medical coder. Most recently, Appellant worked

as a coder from 2008 to 2010 for UPMC and earned approximately $16 per

hour.

        Appellant testified that after she gave birth to the couple’s triplets (the

children) in 2010, she did not work because of the cost of childcare. She

stated that she and Appellee agreed that she would stay at home in part

because of the cost of daycare. N.T., 8/18/17, at 8. Appellant has been a

stay-at-home mother for the entirety of the children’s lives. At the time of

the de novo hearing, the children were about to start second grade. For these

reasons, Appellant requested that she be imputed an earning capacity of

minimum wage for a full-time work week. N.T., 8/18/17, at 31. Appellee

countered that he did not recall agreeing that Appellant would remain at home

after the first four to five years of the children’s lives. Id. at 27.

        The trial court determined that Appellant’s earning capacity was $16 per

hour over a forty-hour work week. The court used Appellant’s most recent

employment information to establish her earning capacity. Of relevance to

this appeal, the court found that it would be inappropriate to assess


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Appellant’s earning capacity at the minimum wage given her education and

certification as a medical coder and that Appellant’s efforts to obtain

employment were “half-hearted.” Trial Ct. Op., 9/22/17, at 2.

       Appellant filed a timely notice of appeal and court-ordered statement of

errors complained of on appeal.1 The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a). Appellant raises the following issue for our review:

       Whether the trial court abused its discretion in holding Appellant
       to an earning capacity of $16.00 per hour for a job she held seven
       (7) years ago and prior to the parties’ agreement that Appellant
       would remain in the home to care for the parties’ minor children?

Appellant’s Brief at 1-2.

       Appellant claims that she “should be held to a minimum wage earning

capacity at thirty (30) hours per week or less.” Appellant’s Brief at 5. In

support, Appellant asserts that there was at least a tacit agreement between

her and Appellee that she would remain a stay-at-home mother. Appellant

also argues that the record reflects she was “far from dilatory in her search

for employment following the parties’ separation.”       Id. at 3.    Appellant



____________________________________________


1  Because this matter has been designated as a Children’s Fast Track case,
Appellant was required to file her concise statement of errors complained of
on appeal with her notice of appeal under Pa.R.A.P. 1925(a)(2)(i). However,
since Appellee does not assert prejudice from Appellant’s failure to do so, and
Appellant complied with the trial court’s order to file a concise statement by a
certain date, we do not find her issue raised on appeal to be waived. See In
re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that a failure to
file a Rule 1925(a)(2) statement contemporaneous with the notice of appeal
will not automatically result in quashal or dismissal).


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contends that “it is manifestly unreasonable for the trial court to expect that

she could work (40) hours per week” because the children’s school schedule

and transportation difficulties prevent her from working a full-time schedule.

Id. at 4. Appellant also cites to Novinger v. Smith, 880 A.2d 1255, 1256

(Pa. Super. 2005), for the proposition that the court erred in failing to consider

the circumstances surrounding her employment status immediately before she

filed her petition for support.

      Our standard of review of an appeal from a child support order follows:

      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.

Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations and quotation

marks omitted).      “[A] reviewing court does not weigh the evidence or

determine credibility as these are functions of the trial court.” Doherty v.

Doherty, 859 A.2d 811, 812 (Pa. Super. 2004)

      “[T]he determination of a parent’s ability to provide child support is

based upon the parent’s earning capacity rather than the parent’s actual

earnings.”   Samii, 847 A.2d at 696 (citation omitted).           “A party’s age,

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

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responsibilities are factors which shall be considered in determining earning

capacity.” Laws v. Laws, 758 A.2d 1226, 1229 (Pa. Super. 2000) (citing

Pa.R.C.P. 1910.16-2).

     In Novinger, which was cited by Appellant, the father had been

employed as a carpenter for most of his life and earned $25,000 annually,

“except for one year, from 1999 to 2000, when he worked as a welder earning

$40,000.” Novinger, 880 A.2d at 1256. In 2004, the father filed a petition

to modify an existing child support order. Id. The trial court assessed the

father an earning capacity of $40,000, based on the welder job he had five

years prior—a job for which apparently he “was unqualified and had no formal

training.” Id. at 1256-57.

     This Court held the trial court in Novinger erred because “the primary

focus should be on the circumstances surrounding [the father’s] employment

status immediately before he filed the petition for modification.” Novinger,

880 A.2d at 1256. In other words, the trial court erred by considering the

father’s earning capacity for a job he had held four years prior and for which

he was unqualified. Id. at 1256-57. Rather, this Court held, the trial court

should have imputed the father a “realistic earning capacity based on his

present qualifications and circumstances.” Id. at 1257.

     Here, the court noted that

     [Appellee] testified concerning his recollection of the discussions
     about [Appellant] not working because of the cost of childcare and
     the building of a relationship between mother and children. His


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     recollection differed from [Appellee]. He did not recall that he
     agreed that [Appellant] could remain at home for seven years.

     The court finds [Appellee’s] testimony on this point as credible.
     The children began their third year of all day school shortly after
     the de novo hearing. [Appellant] did not offer any satisfactory
     explanation for her failure to pursue employment after the
     children started Kindergarten. In addition, [Appellant] testified
     that she did not pursue employment until April of this year after
     the parties separated. This court views [Appellant’s] efforts to
     obtain employment as half-hearted at best.

     This court found that [Appellant’s] failure to pursue employment,
     even for an extended period of time when [Appellee] was
     unemployed and her weak efforts to obtain employment after the
     parties separated earlier [in 2017 was] a willful failure to obtain
     employment. This court then used [Appellant’s] most recent
     employment information to establish her earning capacity.

     [Appellant] argued that she should have a minimum wage earning
     capacity. This court did not find that appropriate given her
     advanced college education; her certification as a medical coder;
     and her weak efforts to obtain any employment which only began
     after the parties separated.

Trial Ct. Op., 9/22/17, at 2. The record reveals that sufficient evidence was

adduced to support the trial court’s findings of fact and credibility

determinations regarding the lack of an agreement between the parties and

Appellant’s half-hearted efforts to obtain employment commensurate with her

earning capacity. See Doherty, 859 A.2d at 812; Samii, 847 A.2d at 694.

     Moreover, a review of the record reveals that Appellant waived her

argument regarding the thirty-hour work week based on transportation

difficulties because, at the de novo hearing, she had requested a full-time

work week. See N.T., 8/18/17, at 31; see also Pa.R.A.P. 302.




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      Lastly, we conclude that Appellant’s reliance on Novinger is misplaced.

Unlike the unqualified parent in Novinger, who held a job as a welder without

any training, Appellant has a certificate qualifying her as a professional

medical coder and worked as a coder for two years. Cf. Novinger, 880 A.2d

at 1256-57. Although Appellant last worked as a coder seven years prior, we

agree with the trial court that, unlike the father in Novinger, she

demonstrated a potential earning capacity of $16 per hour, based on her

earnings history. Cf. id.

      In sum, we conclude that the trial court took into consideration the

necessary factors and appropriately exercised its discretion in determining

Appellant’s earning capacity. See Samii, 847 A.2d at 694; Laws, 758 A.2d

at 1229.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2018




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