J-S13029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHAWNA L. HUSICK, NOW SHAWNA L.                   IN THE SUPERIOR COURT OF
BAMBLING                                                PENNSYLVANIA

                            Appellee

                       v.

SCOTT E. HUSICK

                            Appellant                 No. 1075 WDA 2015


                   Appeal from the Order Dated June 17, 2015
                In the Court of Common Pleas of Bedford County
                  Civil Division at No: 180-S for the year 2007


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 08, 2016

        Appellant, Scott E. Husick (“Father”), appeals from the June 17, 2015

order of the Court of Common Pleas of Bedford County denying his de novo

appeal for a reduction in his child support obligation.        Upon review, we

affirm.

        The trial court summarized the background information as follows:

              Subsequent to the hearing [Father], Scott E. Husick,
        provided the Court with his amended tax return. After the
        hearing on March 26, 2015, [Mother], Shawna L. Husick, signed
        a release allowing [Father], Scott E. Husick, to deduct [C]hild on
        his 2014 return. As noted above, [Father] provided his amended
        2014 return. A review of this amended return along with his
        original return produces the following: [Father]’s gross income
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      for 2014 was $42,463.00. [Father]’s deductions from income
      included itemized deductions of $27,269.00. This figure includes
      $11,402.00 for work related mileage. Receiving credit for the
      tax exemption for himself and [C]hild leaves [Father] with a
      Federal tax liability of $728.00. Accordingly [Father], Scott E.
      Husick, had a net annual income after Federal taxes of
      $41,735.00. After reducing [Father]’s income for Federal and
      state income taxes leaves a total net income after taxes of
      $40,738.00. This is actually in excess of the $34,756.44 net
      income computed in the conference order. The Court believes
      his 2014 income is the most accurate account of his income.

       ....

            [Mother], Shawna L. Husick, was found at conference to
      have monthly earnings capacity of $1,042.09; essentially
      minimum wage. [Mother] has not been employed since June of
      2013. In addition to [C]hild who is the subject of the present
      support action, [Mother] has a child born in 2013 to her present
      boyfriend. [Mother]’s last employment was at a store where she
      earned $13.50 an hour as an office manager. [Mother] left this
      job over harassment by a supervisor.         [Mother]’s previous
      employment was for a software sales company earning $9.00 an
      hour. Prior to that between 2007 and 2009 [Mother] worked at
      the Department of Labor. This job was in accounts receivable
      and she earned $2,455.00 a month. However, her hours were
      reduced at that job which reduced her income, and further she
      was required to commute from her residence in Bedford County
      to Altoona. There was no indication that [Mother] possesses any
      special skills or advanced education.

Trial Court Opinion (T.C.O.), 6/17/15, at 1-4.

      On appeal, Father raises three issues:

      1. Did the trial court commit an abuse of discretion or an error
      of law by denying Appellant-Father’s de novo appeal by rejecting
      his request for a downward deviation from the guidelines support
      amount in consideration of his work-related expenses?

      2. Did the trial court commit an abuse of discretion by denying
      Appellant-Father’s de novo appeal by rejecting his request for a
      downward deviation from the guidelines support amount in
      consideration of his historical expenditures provided directly for


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       the child’s benefit, and in consideration of his substantial
       physical custody?

       3. Did the trial court commit an abuse of discretion by imposing
       only a minimum wage earning capacity on Appellee-Mother,
       whose work history involves employment with wages greater
       than the federal and state minimum wage?[1]

Father’s Brief at 4.

             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.

Mencer v. Ruch, 928 A.2d 294, 297 (Pa. Super. 2007) (citation omitted).

“[T]he amount of a support order is largely within the discretion of the trial

court,” and “[a] finding that the trial court abused its discretion must rest

upon a showing by clear and convincing evidence.”       Kessler v. Helmick,

672 A.2d 1380, 1382 (Pa. Super. 1996) (citation omitted).

       In determining whether to award him a downward deviation from the

support guidelines, Father argues the trial court should have considered his

work-related expenses, such as mileage, tools, and specialized clothing,


____________________________________________


1
  In his brief, Father combines his first and second issues. Father’s Brief at
4. For ease of disposition, we will address Father’s arguments pertaining to
deductions and arguments pertaining to his physical custody of Child
separately.



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asserting these expenditures are unavoidable for him to maintain his

employment.       Father also argues the trial court should have considered

items he purchased based on Child’s needs, such as clothing and school

supplies, “that would normally be considered within the scope and purpose

of child support.” Father’s Brief at 12. Father asserts the trial court erred,

alleging he was requesting a downward deviation from the support

guidelines and “not necessarily” a credit against his net monthly income for

purposes of calculating his support obligation.   Id. at 13.   Father further

argues “the historically consistent and significant expenditures directly to

and for [C]hild’s benefit should have been considered by the trial court in

favor of warranting a downward deviation from the guidelines support

amount.” Id.

       The trial court computed Father’s support obligation using his 2014

income. The trial court did not allow Father a downward deviation or credit

on his net come, holding the following:

             [Father] is a union carpenter and obviously the amount of
       his work varies by the season of the year. Further, using his tax
       return also captures his unemployment income for the year.
       Pa. R.C.P. 1910.16-2[(d)(3)][2] provides support orders for
       seasonal employees, such as construction workers should
       ordinarily be based on a yearly basis. Given that the [Father]’s
       employment has not changed in 2015, his 2014 tax return would
       appear to be the most accurate description of his income. As the
____________________________________________


2
  “Seasonal Employees. Support orders for seasonal employees, such as
construction workers, shall ordinarily be based upon a yearly average.”
Pa.R.C.P. No. 1910.16-2(d)(3).



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         [Father]’s net income was reduced for his mileage driven to
         work, it would be improper to give any further credit. The same
         logic applies to the request for a reduction for union dues,
         clothing, and tools. These deductions are already reflected in his
         2014 taxes.

T.C.O., 6/17/15, at 2-3.

         Father fails to cite any authority to support his arguments that he

should be granted a downward deviation from the support guidelines, or that

the trial court’s calculations were the result of a misapplication of the law or

abused its discretion.      Accordingly, Father is not entitled to relief on this

issue.

         Father next argues the trial court erred in concluding he did not qualify

for the presumptive reduction in child support provided for in Pa.R.C.P. No.

1910.16-4(c)(1).3 Father acknowledges he fell fifteen days short of having

Child for forty percent of the overnights between January 2014 and

December 2014 as required by Rule 1910.16-4.            However, he alleges the

trial court should have granted him the reduction considering the “totality of

the circumstances.” Father’s Brief at 13-14.

         Father, again, has failed to cite any authority to support his assertions.

Noting that Father fell fifteen days short of having Child for forty percent of

the overnights in 2014, and therefore did not fulfill the plain text
____________________________________________


3
  “(c) Substantial or Shared Physical Custody. (1) When the children
spend 40% or more of their time during the year with the obligor, a
rebuttable presumption arises that the obligor is entitled to a reduction in
the basic support obligation to reflect this time. . . .” Pa.R.C.P. No.
1910.16-4.



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requirement    of   Rule   1910.16-4,    the      trial   court   denied   Father   the

presumptive reduction.      The trial court has not abused its discretion, and

Father is not entitled to relief on this issue.

      Father next alleges the trial court abused its discretion by failing to

assess Mother with an earning capacity higher than minimum wage. Father

argues Mother has a greater earning capacity than minimum wage, relying

on the facts that Mother has a bachelor’s degree in communications, work

experience in advertising sales, accounts receivable, and management,

worked during the parties’ separation, held jobs earning $2,612.00 per

month, $2,455.00 per month, $9.00 per hour, and $13.50 per hour, and had

voluntarily left the work force in 2012. Father’s Brief at 16-17.

            Age, education, training, health, work experience, earnings
      history and child care responsibilities are factors which shall be
      considered in determining earning capacity. . . . 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. No. 1910.16-2(d)(4).

      In addition to the facts listed by Appellant, the trial court also

considered that Mother left her last job due to sexual harassment by her

supervisor as well as the following:

      Support orders are based on earnings [sic] capacity rather than
      actual income. [Mother] has sated having a two year old and a
      six year old at home; the cost of child care would be significant.
      [Mother] stated that her best choice for employment would be in
      Blair County which would include a lengthy commute. Given the

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      travel time involved, the children would require both day care
      and after school care. [Mother], Shawna L. Husick, testified she
      did not believe that even if she obtained similar employment to
      that she previously had, it would not be cost effective. Given the
      two children in the home there could be an application of the
      nurturing parent doctrine. However, only one of these children
      is subject to this order.     [Mother] currently lives with her
      boyfriend and there is a second income in her home. More
      persuasive is the fact there is little to show she has skills or
      training that support she could expect to earn more than
      minimum wage. Some of her employment history was at a rate
      greater than minimum wage but that may well have been
      fortuitous circumstances. Based on the record a minimum wage
      earning capacity is appropriate.

T.C.O., 6/17/15, at 3-4 (citations omitted).

      Father, again, does not cite any authority in support of his argument

and does not cite any facts not considered by the trial court in assessing

Mother’s earning capacity. As such, Father has not provided any evidence

the trial court misapplied the law or abused its discretion.     Accordingly,

Father is not entitled to relief on this issue.

      As Father is not entitled relief on any of his issues raised, we affirm

the June 17, 2015 order of the trial court.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2016




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