J-A05040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MEGAN S. RODGERS,                                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RYAN J. MURPHY,

                            Appellant                  No. 2018 EDA 2014


                 Appeal from the Order Entered June 11, 2014,
             In the Court of Common Pleas of Philadelphia County
    Domestic Relations at No(s): DR NO. 13-09976 PACSES NO. 945114108


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MARCH 31, 2015

       Ryan J. Murphy (“Father”) appeals from the order setting the amount

of monthly child support he is obligated to pay to Megan S. Rodgers

(“Mother”). We affirm.

       We summarize the facts of this case as follows.       Mother and Father

married in April of 2011. Thereafter, Mother gave birth to Son. Mother and

Father separated in February of 2013.          In July of 2013, Mother filed for

divorce. On July 22, 2013, Mother filed a complaint for child support.

       A hearing was held before a Master on December 9, 2013.1              On

April 4, 2014, the Master issued a proposed order of child support.         The

____________________________________________


1
  At the time of the hearing, Mother was thirty-two years old, possessed a
master’s degree, was employed as an autistic support teacher, and lived
(Footnote Continued Next Page)
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Master estimated Father’s earning capacity to be $30,000.00 per year, and

proposed that Father pay Mother $741.00 per month for support, plus

$34.00 per month for arrears, for a total child support payment of $775.00

per month. That amount also included a contribution by Father towards the

total sum of $245.00 that Mother spent for weekly childcare expenses at a

daycare facility. Father timely filed exceptions to the proposed order. The

trial court held argument on Father’s exceptions, relied on the Master’s

findings of credibility, and denied Father’s exceptions.     Father filed this

timely appeal. Father and the trial court complied with the requirements of

Pa.R.A.P. 1925.

      Father presents the following issues for our review:

      1. Did the Trial Court err in confirming the Master’s assignment
      to Father of an earning capacity of $30,000.00 per year, as that
      earning capacity was inconsistent with his earnings history, his
      education and current and recent income experience, and
      disregarded his efforts at obtaining higher-paying full-time
      employment, which were limited by his familial responsibilities to
      his ailing father, and the potential for higher earnings with the
      company in the future?

      2. Did the Trial Court err in confirming the Master’s acceptance
      and allocation of the childcare expense of $245.00 per week, for
      a choice of daycare on which Father was not consulted and
      where Father could provide alternate and far less expensive
      childcare, and the child primarily resides with Mother and her
      parents who, with Father and Father’s mother, had previously
                       _______________________
(Footnote Continued)

with Son at the home of Mother’s parents. Father was thirty-nine years old,
had a high school diploma, had served a few years in the United States
military, was employed as a taxi driver, and lived in an apartment with his
mother.



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      shared childcare responsibilities particularly where the expense
      constitutes [an] unreasonable burden on Father?

      3. Did the Trial Court and the Master err in failing to consider
      that, while Father rented an apartment and financially assisted
      his elderly mother who resided with him, Mother lives with her
      parents in their home and has no expenses with regard to rent,
      maintenance or utilities and hence deviate from the guideline
      support as provided by the Rules?

Father’s Brief at 2-3.

      Father first argues that the trial court erred in confirming the Master’s

assignment of a $30,000.00 annual earning capacity to Father.           Father

claims that the earning capacity attributed to him is inconsistent with his

recent earnings history, education, training and income experience.

      We address this issue mindful of the following standard of review:

            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.

R.C. v. J.S., 957 A.2d 759, 761 (Pa. Super. 2008) (quoting Belcher v.

Belcher, 887 A.2d 253 (Pa. Super. 2005)) (citations and quotation marks

omitted). A finding of an abuse of discretion is not lightly made but must be

based only upon a showing of clear and convincing evidence. Christianson

v. Ely, 838 A.2d 630, 634 (Pa. 2003).




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            [T]he duty to support one’s child is absolute, and the
      purpose of child support is to promote the child’s best interests.
      The principal goal in child support matters is to serve the best
      interests of the child through provision of reasonable expenses.
      The duty of child support, as every other duty encompassed in
      the role of parenthood, is the equal responsibility of both mother
      and father. That duty is absolute.

R.C., 957 A.2d at 763 (citations and quotation marks omitted).

      In Pennsylvania, an award of child support is based upon the Child

Support Guidelines promulgated by our Supreme Court. The guidelines were

enacted to ensure “that persons similarly situated shall be treated similarly.”

23 Pa.C.S. § 4322(a).     “In determining the . . . ability of the obligor to

provide support, the guidelines shall place primary emphasis on the net

incomes and earning capacities of the parties, with allowable deviations for

unusual needs, extraordinary expenses and other factors, such as the

parties’ assets, as warrant special attention.” Id.

      A person’s earning capacity is defined not as the amount which the

person could theoretically earn, but as that amount which the person could

realistically earn under the circumstances, considering his or her age, health,

mental and physical condition and training. Gephart v. Gephart, 764 A.2d

613, 614-615 (Pa. Super. 2000). This Court has held that where a parent

has not voluntarily reduced income to avoid more lucrative career

opportunities, but has consistently performed a lower paying job from before

the birth of a child, the trial court did not abuse its discretion in calculating




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earning capacity based upon the lower paying job. Dennis v. Whitney, 844

A.2d 1267, 1270 (Pa. Super. 2004).

     The trial court offered the following analysis pertinent to Father’s claim

regarding the assignment of his earning capacity:

     [Father] contends that the trial court erred in confirming the
     Master’s assignment of an earning capacity of $30,000 per year
     to [Father]. . . . The assessment of an earning capacity in
     support matters is governed by Pa.R.C.P. 1910.16-2(d)(4),
     which provides that, “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.” The Rule
     further provides that the factors to be considered in determining
     an earning capacity are “age, education, training, health, work
     experience, earnings history and child care responsibilities.” Id.

           In the instant case, the Master took special note in her
     Report of the fact that [Father] has been “unable to maintain
     long term employment in the various fields that he has
     experience since 2010.” (See Report of Master in Support for
     child support, p. 6), (“Report for child support”). Accordingly,
     the Master was not convinced “that [Father] is diligently working
     towards finding appropriate and consistent employment and
     instead is looking for opportunities that will afford him with large
     pay-outs, status or the ability to be his own boss.” (See Report
     for child support, p. 6).

            Having made the determination that [Father] willfully
     failed to obtain appropriate employment, the Master next took
     into consideration the relevant factors pursuant to Pa.R.C.P.
     1910.16-2(d)(4) in order to determine an earning capacity.
     Given that [Father] is thirty-nine years old and in good health,
     the Master took into consideration [Father’s] various jobs, the
     longest having lasted five or six years when he was employed in
     the mortgage finance industry in Arizona in 2003 (N.T.[,
     12/9/13,] at 74, 77-78), and his employment for an estate
     service as a contractor doing clean outs for one and one-half to
     two years. (See Report for child support, p. 5) (N.T. at 38-39).
     At the time of the hearing, [Father] had been employed as an
     independent contractor for a limousine service for six (6) weeks,

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      but had also interviewed for a job with a commercial lending
      institution and had been offered a sales management job. (See
      Report for child support, p. 5). The Master noted in her Report
      that when questioned about the job offer in sales management,
      [Father] did not know the name of the company or the salary
      range for the job. (See Report for child support, p. 5), (N.T. at
      74-76). The only income information provided by [Father] was
      his 2012 federal tax return which showed W-2 wages of $10,577
      while employed as an assistant to a real estate agent[.] (See
      Ex. H-2 to Report for child support), (N.T. at 71-72). The Master
      took note of the fact that [Father] stated that he had additional
      income in 2012 from his work with Dan Donohue Estate Service,
      but that this income was not reflected on his 2012 tax return as
      he was paid under the table on a cash basis. (Report for child
      support, p. 5), (N.T. at 57, 71-72). Based on the inconsistencies
      of [Father’s] testimony and the evidence of record of [Father’s]
      employment history, the Master arrived at an earning capacity
      assessment of $30,000 annually or $576.92 per week.

             We find the Master’s determination that [Father] has
      willfully failed to obtain appropriate employment and the
      Master’s assessment of an earning capacity of $30,000 annually
      for [Father] to be supported by the record.            The Master
      specifically determined that [Father] lacked credibility with
      regard to his willingness to seek employment commensurate
      with his job experience. This court will not disturb the credibility
      determination of the Master who had the opportunity to observe
      the demeanor of the parties and where the record provides
      ample support. Further, we find the earning capacity assessed
      by the Master to be within a range that [Father] could
      realistically earn as it is based on his past work experience. A
      review of the record of the Master’s hearing shows that [Father]
      earned $500 to $800 a week working in his past job for Dan
      Donohue Estate Services[.] (N.T. at 37). He testified that he
      had earned a total of $5,665.72 for a six week period at his
      current job as a limousine driver[.] (Id. at 61-62) (See also
      Exhibit H-1, Report for child support). In 2003, he had earned
      $5000 to $6000 per month working for Wells Fargo as a
      mortgage loan officer[.] (N.T. at 66-67). In spite of the fact
      that [Father] was less than candid about his past and current
      employment ventures, this Court finds that the Master did not
      err in her assessment of [Father’s] earning capacity.

Trial Court Opinion, 8/22/14, at 5-8.

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      Our review of the certified record reflects ample support for the

Master’s and the trial court’s ultimate determination of a $30,000.00 earning

capacity for Father.   Indeed, based upon Father’s previous earnings and

work experience, the assignment of a $30,000.00 earning capacity to Father

is conservative. Therefore, the trial court did not abuse its discretion in this

regard. Accordingly, Father’s contrary claim lacks merit.

      In his second issue, Father argues that the Master and the trial court

erred in accepting, without sufficient documentation, Mother’s claim that she

expends a total of $245.00 per week in childcare expense. Father further

contends that Mother enrolled Child in daycare without consulting Father or

obtaining his consent, alleging that family members could provide daycare

for several days per week at no cost.

      Again, we observe that our review is limited to ascertaining whether

there is sufficient evidence to sustain the trial court’s order and whether

there has been an abuse of discretion. Mooney v. Doutt, 766 A.2d 1271,

1276 (Pa. Super. 2001) (citing Stredny v. Gray, 510 A.2d 359 (Pa. Super.

1986)).    Pennsylvania Rule      of Civil   Procedure   1910.16-6   addresses

adjustments to support obligations and provides in relevant part as follows:

      Rule 1910.16-6. Support Guidelines. Adjustments to the
      Basic Support Obligation.     Allocation of Additional
      Expenses

            Additional expenses permitted pursuant to this Rule
      1910.16-6 may be allocated between the parties even if the
      parties incomes do not justify an order of basic support.


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            (a) Child care expenses.           Reasonable child care
      expenses paid by either parent, if necessary to maintain
      employment or appropriate education and pursuit of income,
      shall be allocated between the parties in proportion to their net
      incomes and added to his and her basic support obligation.

Pa.R.C.P. 1910.16-6(a).

      Our review of the record reflects that Mother testified that she pays

$245.00 per week in child care expenses. N.T., 12/9/13, at 14. In addition,

Mother presented documentation from Son’s daycare service provider

reflecting that tuition for a two-year-old child is $245.00 per week. Report

of Master in Support, 4/4/14, at W-2 (Docket Entry 5). Thus, we conclude

that there was sufficient evidence in the record to support the determination

of the weekly child care expense of $245.00, and that the trial court did not

abuse its discretion in this regard.

      Concerning    Father’s   allegation    that    the   child   care   expense   is

unnecessary because Son’s grandmothers could provide child care for Son,

and that Mother enrolled Son in daycare without consulting Father, our

review of the record reflects otherwise.            The record indicates that Son

attended daycare prior to the parties’ separation.          Specifically, the parties

separated in February of 2013, and Son had been enrolled in daycare since

August of 2012. N.T., 12/9/13, at 5, 152-153. The record further reveals

that, although prior to August of 2012 the grandmothers did babysit Son for

several days of the week, the task had become too difficult for the

grandparents, and the decision was made by the parties prior to August of


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2012 to enroll Son in a daycare program. Id. at 146-152. Therefore, we

conclude that there was sufficient evidence in the record to support the

determination that the child care expense was necessary, and that the trial

court did not abuse its discretion.    Accordingly, Father’s challenge to the

award of child care expenses lacks merit.

     In his final issue, Father argues that the trial court and the Master

erred in failing to deviate downward from the support guidelines based upon

the parties’ actual living expenses.        Father claims that Mother lacks

household expenses because she lives with her parents, yet Father lives with

his mother and expends a significant portion of his income towards their

housing expenses.

     In addressing this claim, we are cognizant that the overarching

purpose of child support is to promote the child’s best interest.   Arbet v.

Arbet, 863 A.2d 34, 39 (Pa. Super. 2004).          Moreover, the appropriate

award for child support

     shall be determined in accordance with the support guidelines
     which consist of the guidelines expressed as the child support
     schedule set forth in rule 1910.16-3, the formula set forth in
     1910.16-4 and the operation of the guidelines as set forth in
     these rules.

Pa.R.C.P. 1910.16-1(b).     The child support schedule provides a table

indicating the appropriate amount of support depending upon the parties’

combined income and the number of children.        Pa.R.C.P. 1910.16-3.   The




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formula establishes what percentage of the total support determined from

the schedule for which each party will be responsible. Pa.R.C.P. 1910.16-4.

     The guidelines were established to bring more predictability to

discretionary aspects of child support determinations:

     [T]he support guidelines are the Legislature’s response to the
     Federal Government’s mandate that States establish mandatory
     guidelines for determining child support. See Introduction to the
     1998 Explanatory Comment, Pa.R.C.P. 1910.16-1, 42 Pa.C.S.A.;
     42 U.S.C. § 667(a). This statute replaced a discretionary system
     and was enacted to create greater uniformity, predictability and
     equity in determining child support awards, while at the same
     time maintaining a degree of judicial discretion necessary to
     address unique circumstances. See Explanatory Comment-1998
     to Rule 1910.16-1 (stating purpose of guidelines is to promote
     “(1) similar treatment of persons similarly situated, (2) a more
     equitable distribution of the financial responsibility for raising
     children, (3) settlement of support matters without court
     involvement, and (4) more efficient hearings where they are
     necessary.”)

L.S.K. v. H.A.N., 813 A.2d 872, 879 (Pa. Super. 2002) (citing Colonna v.

Colonna, 788 A.2d 430 (Pa. Super. 2001)).         Further, the guidelines are

presumed to be correct, as evidenced by the following:

     (d) Rebuttable Presumption. If it has been determined that
     there is an obligation to pay support, there shall be a rebuttable
     presumption that the amount of the award determined from the
     guidelines is the correct amount of support to be awarded. The
     support guidelines are a rebuttable presumption and must be
     applied taking into consideration the special needs and
     obligations of the parties. The trier of fact must consider the
     factors set forth in Rule 1910.16-5. The presumption shall be
     rebutted if the trier of fact makes a written finding, or a specific
     finding on the record, that an award in the amount determined
     from the guidelines would be unjust or inappropriate.




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Pa.R.C.P. 1910.16-1(d). Thus, the support determined under the guidelines

is a rebuttable presumption, from which the trier of fact may deviate under

certain circumstances. Arbet, 863 A.2d at 42.

     “As these rules and the prevailing case law make clear, a court

generally has reasonable discretion to deviate from the guidelines if the

record supports the deviation.” Silver v. Pinskey, 981 A.2d 284, 296 (Pa.

Super. 2009) (citing Ricco v. Novitski, 874 A.2d 75 (Pa. Super. 2005)). As

we stated previously, “In determining the . . . ability of the obligor to

provide support, the guidelines shall place primary emphasis on the net

incomes and earning capacities of the parties, with allowable deviations for

unusual needs, extraordinary expenses and other factors, such as

the parties’ assets, as warrant special attention.”               23 Pa.C.S.

§ 4322(a) (emphasis added).

     Regarding deviation, Pa.R.C.P. 1910-5 provides as follows:

     (a) Deviation. If the amount of support deviates from the
     amount of support determined by the guidelines, the trier of fact
     shall specify, in writing or on the record, the guideline amount of
     support, and the reasons for, and findings of fact justifying, the
     amount of deviation.

     (b) Factors. In deciding whether to deviate from the amount of
     support determined by the guidelines, the trier of fact shall
     consider:

           (1)   unusual needs and unusual fixed obligations;

           (2)   other support obligations of the parties;

           (3)   other income in the household;


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            (4)   ages of the children;

            (5)   the relative assets and liabilities of the parties;

            (6)   medical expenses not covered by insurance;

            (7)   standard of living of the parties and their
                  children;

            (8)   in a spousal support or alimony pendent lite
                  case, the duration of the marriage from the
                  date of marriage to the date of final
                  separation; and

            (9)   other relevant and appropriate factors,
                  including the best interests of the child or
                  children.

Pa.R.C.P. 1910-5.

      In addressing Father’s claim that a downward deviation of his support

obligation was required and concluding that the requested deviation was not

appropriate, the trial court offered the following analysis:

            [Father] . . . avers that both the trial court and the Master
      erred in failing to consider that while [Father] pays rent for an
      apartment and cares for his elderly mother who resides with
      him, [Mother] lives with her parents and has no housing or utility
      expenses. Pa.R.C.P. 1910.16-5 sets forth the factors allowing
      for deviation from the presumptive amount under the support
      guidelines.    The Master properly determined that [Father’s]
      expenses and debts are not so unusual or extraordinary as to
      warrant a deviation from the guidelines. (See Report for child
      support, p. 6). During the Master’s hearing, [Father] testified
      that his Mother lives with him and contributes to the monthly
      rent of $930 and that his portion of the monthly rent is $400-
      $500. (N.T. at 42). [Father] further testified that his total
      monthly household expenditures are approximately $800. (Id.
      at 42-43). In addition, [Father] testified that he had no debts or
      obligations other than a private loan in the amount of $8,663
      towards which he makes payments when he can afford to [pay].


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      (Id. at 43-44). Based on the testimony and evidence of record,
      we concur with the Master’s finding.

Trial Court Opinion, 8/22/14, at 8-9.

      Our review of the record reflects ample support for the trial court’s

determination that Father failed to rebut the presumption that the guideline

amounts were appropriate.       Indeed, Father’s own testimony before the

Master indicated that at the time of the hearing he was living in an

apartment with his mother and they shared living expenses. N.T., 12/9/13,

at 42. The only residents of the household were Father and his mother. Id.

When asked how much he was contributing toward the household, Father

replied:

      Ah, I’m paying – let’s see – the rent is 930, I’m paying about
      four to five of that, plus electric, cable – ah – so, I’m probably
      spending, roughly, about six hundred a month.

Id. Father then offered the following clarification of his household expenses:

      [FATHER]: Oh – oh, excuse me, a question, am I supposed to
      include food and everything like that, ma’am?

      THE MASTER: Yes.

      [FATHER]: Oh, yeah, I take care of all the groceries and
      everything else in the household, so then, that would take it up,
      probably, close to – I’d say, probably eight – all the prescriptions
      – all everything.

           My mother doesn’t have very much and my father just
      passed away in June and I’m trying to catch up on everything
      and so, she’s my responsibility as well as all my other ones.

Id. at 42-43.    Thus, Father offered testimony that his contribution for

household expenses was approximately $800.00 per month.             Father also

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indicated that he has no other children under the age of eighteen, has no

credit card debt, and has no student loans. Id. at 43. In addition, Father

testified that he has an obligation in the form of a private loan in the amount

of $8,663.00, and he makes payments on the loan based upon what he can

afford to pay. Id. at 44. In light of this testimony presented by Father, we

cannot conclude that his stated monthly expenses amount to unusual needs

or extraordinary expenses such that they would rebut the presumption that

the support guidelines are applicable. Likewise, Father has not established

that other factors, such as the parties’ assets, would warrant special

attention. Hence, it is our determination that the trial court did not err in

refusing to deviate downward from the support guidelines in this matter.

Accordingly, Father’s contrary claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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