J-S36017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.A.R.                                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 H.R.H.                                  :   No. 119 MDA 2019

             Appeal from the Order Entered January 10, 2019
  In the Court of Common Pleas of Dauphin County Domestic Relations at
                          No(s): 00588-DR-18,
                        PACSES NO. 260117077


BEFORE:    PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 15, 2019

      J.A.R. (“Father”) appeals pro se from the order granting the petition of

H.R.H. (“Mother”) and terminating the order requiring her to pay child support

to Father. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            The parties are the parents of two children currently nine
      and seven years of age (DOB 12/09 and 8/11). Mother and Father
      lived together for a number of years before marrying in 2012.
      They separated in July 2014 and divorced in July 2018. Following
      their separation, Mother exercised primary physical custody
      though most recently, commencing in July 2018, the parties
      began equally sharing physical custody of the children.

            On September 21, 2018, Father filed a complaint seeking
      child support from Mother. Following a support conference and
      upon recommendation of the support officer, [the trial court]
      issued an order directing Mother [to] pay child support to Father
      of $394 per month under the Support Guidelines, plus $40 per
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36017-19


       month for arrears.[1] (See N.T. [9/21/18] 5–6) In calculating
       support owed, the conference officer assigned Mother a monthly
       net income of $3,162 based upon her employment income. Father
       was assigned an annual earning capacity of $33,000 resulting in
       a monthly net income of $2,232. At the time of the [support]
       conference, Father was self-employed as a freelance programmer
       and technical copywriter making about $300 per week/$15,600
       per year. (N.T. 4) The $33,000 annual income assigned to Father
       by the conference officer was based upon the entry level salary
       for a computer operator with the Commonwealth and factored in
       that Father had a prior criminal felony conviction. (N.T. 4)

              Mother filed a request for a de novo review challenging the
       earning capacity assigned to Father. [The trial court] held a
       hearing on January 9, 2019. At the outset, [the trial court noted]
       that there was little evidence presented on the record concerning
       Father’s prior conviction, so [it took] judicial notice of his criminal
       file. It reflects that Father was arrested in January 2004 on seven
       counts of sexual abuse of children arising from his possession of
       child pornography (18 Pa.C.S.A. § 6312(d)). Father entered a
       guilty plea in April 2005 to one count of sexual abuse of children
       and the other counts were withdrawn. He received a probationary
       sentence which was later revoked ultimately resulting in him
       serving the balance of his 1 ½ - to 3-year term [of] imprisonment
       at a state correctional institution. His maximum term expired in
       approximately February of 2009. Father has not had any other
       criminal convictions since that time.

              Father, currently 46 years old, testified that he obtained a
       bachelor’s degree in computer science in 2014. At the time he
       was living in the same house with Mother and allegedly took care
       of the parties’ children full-time for two years. (N.T. 9–10) Father
       did not offer any testimony about any efforts to find employment
       between 2016 and 2018. He claims he recently learned that the
       Commonwealth of Pennsylvania is a felony friendly employer and
       that in the two months prior to the de novo hearing, he submitted
       26 applications with the Commonwealth. (N.T. 8) He has gotten
       a call back on one, for a management technician position with the
       EPA, which offered an entry level salary range between $37,000
       to $60,000. (N.T. 8)
____________________________________________


1  The order was filed on November 19, 2018, with an effective date of
September 21, 2018. Order, 11/19/18, at 1, 2.

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             Father considered himself a “generalist” in the computer
      field with moderate experience as a programmer. (N.T. 10) He
      has also garnered experience as a website developer, which has
      provided him some income, and believed he could possibly provide
      entry level computer network support. (N.T. 10–11) He denied
      any expertise or certification as a network administrator,
      computer systems administrator, data base administrator or
      computer network architect. (N.T. 10–11) Mother disputed that
      Father lacks expertise as a network administrator and most of the
      other areas he claimed he lacked experience. (N.T. 11) The entry
      level salary with the Commonwealth is $41,000 for a web
      developer, $42,000 for a computer programmer and computer
      network support, and $51,000 for network system administrator.
      (N.T. 11–12)

            At the conclusion of the testimony, [the trial court] directed
      that Father be held to an annual earning capacity of $45,000, not
      considering his felony history. (N.T. 14) The domestic relations
      director attending the hearing then applied Father’s new income
      to the Support Guidelines and after accounting for credits due
      Mother for substantial share of custody, summer camp
      expenditures and medical insurance, she was found to owe Father
      $6.30 per month. Because the figure was de minimis, [the trial
      court] entered an order January 10, 2019 terminating/suspending
      the support order that had directed Mother [to] pay child support
      to Father. (N.T. 14–16)

Trial Court Opinion, 3/13/19, at 1–3 (footnotes omitted).

      Father filed a timely notice of appeal. Both Father and the trial court

complied with Pa.R.A.P. 1925. On appeal, Father presents a single question

for our consideration: “Did the court abuse its discretion in assigning a higher

earning capacity to Father in the amount of $45,000?” Father’s Brief at 4.

      Our standard of review of a trial court’s decision in a support case is well

settled:

      “The principal goal in child support matters is to serve the best
      interests of the children through the provision of reasonable
      expenses.” R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013).

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       Father has an absolute duty to provide for his [two] children
       financially even if it causes hardship or requires sacrifice.
       Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 638 (2003)
       (citation and internal quotations omitted) (“In a child support
       hearing, the main concern is for the welfare of the child. Each
       parent has a duty which is well nigh absolute to support his or her
       minor children and each may have to make sacrifices in order to
       meet this burden.”).

              We review a child support order for an abuse of discretion.
       J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015). “[T]his
       Court may only reverse the trial court’s determination where the
       order cannot be sustained on any valid ground.” R.K.J., supra.
       As this Court previously articulated, “An abuse of discretion is not
       merely an error of judgment, but if in reaching a conclusion the
       law is overridden or misapplied, or the judgment exercised is
       manifestly unreasonable, or the result of partiality, prejudice, bias
       or ill-will, as shown by the evidence of record.” Id.

E.R.L. v. C.K.L., 126 A.3d 1004, 1006–1007 (Pa. Super. 2015). Furthermore:

       “[o]rdinarily, a party who willfully fails to obtain appropriate
       employment will be considered to have an income equal to the
       [party’s] earning capacity.” Pa.R.Civ.P. 1910.16–2(d)(4).[2] The
____________________________________________


2   This provision of the Support Guidelines reads as follows:

       (d) Reduced or Fluctuating Income.

       (4) Earning Capacity. 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 income equal to the party’s earning capacity. 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 the 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



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       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. See Kelly v. Kelly, 633 A.2d 218 ([Pa. Super.] 1993).

Laws v. Laws, 758 A.2d 1226, 1229 (Pa. Super. 2000). A party’s age,

education, training, health, work experience, earnings history, and childcare

responsibilities are factors that shall be considered in determining earning

capacity. Id. (citing Pa.R.C.P. 1910.16–2(d)(4)). In appropriate cases,

however, the “earning capacity of a parent who elects to stay home with a

young child need not be considered.” Reinert v. Reinert, 926 A.2d 539, 543

(Pa. Super. 2007) (citing Kelly, 633 A.2d at 219).

       Father attributes his low earning status between the years of 2010 and

2014 to being a stay-at-home parent, a full-time student, a convicted felon,

and a registered sex offender. Father’s Brief at 11–12. Father explains that,

after completing his degree in 2014, he chose to focus on “expanding his self-

employment” “because of his registration requirements, combined with his

responsibility as primary caregiver” for his children.       Id. at 12.    Father

acknowledges that he “began searching for jobs in his field in a more

traditional mode of employment” after his registration requirements ended in

September 2018. Id. at 14. He contends, however, that having to provide


____________________________________________


       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).


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childcare for his children before and after school “limits his options for what

he can apply to in order to maintain a commensurate level of income to what

he has now.” Id. at 16. Father also complains that the trial court considered

“the felony as if it were a voluntary reduction of income.” Id. at 16.

        In response, Mother contends that Father “did not offer any testimony

about any efforts to find employment between 2016 and 2018.” Mother’s Brief

at 6.     She highlights Father’s testimony that he submitted twenty-six

applications in the two months leading up to the de novo hearing and received

an interview for an entry-level management technician position as evidence

that “he had willfully failed to obtain or maintain employment.” Id. According

to Mother, Father’s testimony, his “age, education, training, health, work

experience, earnings, history, and child care responsibilities,” support the trial

court’s finding that Father has “an annual earning capacity of $45,000, without

consideration of his felony history.” Id.

        After considering the parties’ testimony and the applicable law, the trial

court rejected Father’s assertions:

                In granting Mother’s support appeal, I found that based
        upon the evidence, Father has willfully failed to obtain appropriate
        employment commensurate with his training and education. The
        testimony revealed that while Father obtained his computer
        science degree in 2014, he failed to seriously look for employment
        in that field until almost 2019. Even with the meager effort
        exhibited to date, within just two months of trying, he was able to
        get an interview (scheduled after the de novo hearing) for a
        computer-related position paying between $37,000 and $60,000.
        It is likely and realistic that Father—even with a felony history—
        would be making at least $45,000 a year by now, and possibly
        much more, had he made a proper effort to find employment in

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      the computer field soon after he obtained his degree in 2014.
      Instead, the record shows that while he has been hampered to a
      degree by his prior conviction, he has been much more hampered
      by his failure to look for jobs commensurate with his education
      level and field of study.

Trial Court Opinion, 3/13/19, at 4.

      Upon review, we discern no abuse of the trial court’s discretion in

assigning Father an earning capacity of $45,000. At the de novo hearing, the

domestic relations representative, Ms. Kim Robinson, explained that the

conference officer held Father to an earning capacity of $33,000 based on his

application for a computer operator position with the Commonwealth. N.T.,

1/9/19, at 4. Mother presented unrefuted evidence of available computer-

related jobs with salaries ranging from $43,000 to $65,000; she also testified,

without challenge, to Father’s qualifications and references and to the fact that

she has “been doing most of the job research” for Father. Id. at 7, 12, 13.

Father acknowledged that he had applied for twenty-six computer-related jobs

within the previous two months and received an interview for an entry-level

management technician position with a salary range of $37,000 to $60,000.

Id. at 8–9.   Since receiving his degree in 2014, Father chose not to seek

traditional employment because he was caring for the children. Id. at 9–10.

Yet, Mother had primary custody of the children until July 2018 and paid for

their extracurricular activities and sixty percent of their health insurance.

Father’s Brief at 13; N.T., 1/9/19, at 3–4, 6. Father also chose not to seek

traditional employment until after his registration requirements ended


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because employers were not “felon friendly.” N.T., 1/9/19, at 9, 14. As the

trial court observed, the felony “is his fault,” yet Father used his conviction as

an excuse for not seeking traditional employment in the computer field. Id.

at 14.

         Reiterating that Father has an absolute duty to provide for his children,

we discern no error of judgment, no overriding or misapplication of the law,

no manifestly unreasonable exercise of judgment, no partiality, prejudice, bias

or ill will in the trial court’s terminating Mother’s support order based on

Father’s earning capacity.     E.R.L., 126 A.3d at 1007.     Thus, Father is not

entitled to relief.

         Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/15/2019




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