J-S33041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.R.G.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

C.R.W.

                        Appellant                    No. 1796 WDA 2015


                 Appeal from the Order November 3, 2015
            In the Court of Common Pleas of Allegheny County
                Family Court at No(s): F.D. 11-006272-008


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED JULY 29, 2016

     Appellant, C.R.W. (“Father”), appeals from the order entered in the

Allegheny County Court of Common Pleas, which directed Father to pay

Appellee, T.R.G. (“Mother”), $837.98 per month in child support. We affirm.

     In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

     Father raises the following issues for our review:

         WHETHER THE TRIAL COURT ERRED IN THE ASSESSMENT
         OF EARNING CAPACITY OF THE PARTIES WHEN [IT]
         ASSESSED [FATHER] AN EARNING CAPACITY OF 40
         HOURS PER WEEK PLUS OVERTIME DESPITE HIS
         DISABILITY AND ONLY ASSESSED [MOTHER] AN EARNING
         CAPACITY OF 18 HOURS PER WEEK DESPITE HER ABILITY
         TO WORK FULL TIME?

___________________________

*Former Justice specially assigned to the Superior Court.
J-S33041-16


          WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
          PRORATE CHILDCARE COSTS AND EXPENSES WHEN THE
          AMOUNT PRESENTED BY MOTHER WAS FOR THE PARTIES’
          CHILD AND MOTHER’S OTHER CHILD[?]

          WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
          APPORTION A PRO RATA SHARE OF THE COST OF THE
          HEALTH CARE PREMIUMS PROVIDED BY FATHER’S NEW
          WIFE?

          WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
          APPLY THE MULTI-FAMILY DISCOUNT FOR FATHER’S
          OTHER TWO CHILDREN?

          WHETHER THE TRIAL COURT ERRED IN FAILING TO
          PERMIT THE INTRODUCTION OF [FATHER’S] MEDICAL
          RECORDS TO ESTABLISH FATHER’S DISABILITY?

          WHETHER THE TRIAL COURT ERRED IN FAILING TO
          REDUCE FATHER’S SUPPORT OBLIGATIONS DESPITE THE
          FACT THAT HE SHOWED A SIGNIFICANT CHANGE IN
          CIRCUMSTANCES AND HIS INABILITY TO WORK?

(Father’s Brief at 4-5).

      Preliminarily, we observe the failure to raise an issue in the exceptions

to a hearing master’s recommendation constitutes waiver of that issue on

appeal.   Baker v. Baker, 624 A.2d 655, 656 (Pa.Super. 1993); Pa.R.A.P.

302(a). Additionally:

          The argument portion of an appellate brief must include a
          pertinent discussion of the particular point raised along
          with discussion and citation of pertinent authorities. This
          Court will not consider the merits of an argument which
          fails to cite relevant case or statutory authority. Failure to
          cite relevant legal authority constitutes waiver of the claim
          on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013).

                                      -2-
J-S33041-16


     Instantly, Father failed to raise his fifth issue on appeal in his timely

filed exceptions to the hearing master’s recommendations.           Additionally,

Father’s appellate brief does not include any citations to supporting legal

authority for his second, third, fifth, and sixth issues on appeal.        Thus,

Appellant’s second, third, fifth, and sixth issues on appeal are arguably

waived for purposes of our review.    See Baker, supra; In re Estate of

Whitley, supra. Nevertheless, the trial court comprehensively analyzed the

questions presented, so we decline to waive these issues on appeal.

     Our standard review of child support orders is well-settled:

        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 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.

Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting Mencer v.

Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Cathleen

Bubash, we conclude Appellant’s issues merit no relief.       The trial court

opinion comprehensively discusses and properly disposes of the questions

                                    -3-
J-S33041-16


presented.    (See Trial Court Opinion, filed December 17, 2015, at 4-8)

(finding: record supports hearing officer’s recommendations; many of

hearing officer’s findings about Father’s disability and Mother’s expenses for

Child were based on credibility determinations, which trial court accepted;

(issue 1) hearing officer assigned Father earning capacity of $15.00 per

hour, which is significantly lower than Father’s previous income; hearing

officer also held Father to forty-five-hour work week because overtime was

common in Father’s previous employment; even though Father may not

have left previous employment willfully, it was appropriate for hearing officer

to assign this earning capacity to Father because Father has obligation to

support Child; despite Father’s obligation to support Child, Father has made

no effort to obtain any type of income through employment or disability

payments since 2013; significantly, Father failed to file appeal when his

social security disability claims were denied and his private disability

payments were discontinued; Father also did not introduce any evidence of

ongoing job search or what he could earn; Father’s actions were tantamount

to voluntary reduction of income, and earning capacity assigned to Father

was not unreasonable or punitive in light of his age, health, mental and

physical condition, training and earning history; hearing officer considered

all relevant factors, and Father’s assigned earning capacity is one he could

realistically earn; with respect to Mother’s earning capacity, Mother

presented evidence of ongoing job search to supplement her income from


                                     -4-
J-S33041-16


current job, where she works eighteen hours per week at rate of $22.00 per

hour as dental hygienist; Mother testified credibly that dental hygienists are

traditionally hired part-time; Mother has very young children at home,

including Child; if Mother picked up additional work outside home, it would

impact daycare costs, which would also affect Father’s support obligations;

Mother recently underwent treatment for breast cancer, which likely

impacted her job search; hearing officer properly assigned Mother part-time

earning capacity; (issue 2) both Mother and Child’s caregiver testified that

Mother’s childcare costs are fixed amount per week regardless of hours

worked by caregiver or number of children watched; hearing officer deemed

this testimony credible; Mother also presented evidence of Child’s pre-school

expenses and costs for dance lesson for which she received no contribution

from Father; thus, hearing officer’s decision not to “pro-rate” childcare

expenses in calculation of Father’s support obligation was proper; (issues

3-4) with respect to Father’s claim that court should have prorated

healthcare costs, hearing officer determined Father’s current wife covers

cost of health insurance for her four family members and Child; further,

Father’s support obligations for all of his children does not exceed half his

monthly earning capacity because Father does not pay support for two

children with current Wife; additionally, Father’s claims for reduction of

support are more than offset by additional income in Father’s household

provided by Father’s current wife; Father’s current wife has no obligation to


                                    -5-
J-S33041-16


support Child, but her substantial contributions to household income offset a

great deal of Father’s personal self-sustaining expenses, which make up

significant part of calculations for support; (issue 5) Father did not provide

any admissible documentary medical evidence to establish his disability; all

medical information Father sought to introduce at support hearing was

inadmissible hearsay; thus, hearing officer properly sustained Mother’s

objection to introduction of medical records; (issue 6) Father did not

introduce any evidence of change of circumstances as there was no prior

support order; nevertheless, hearing officer did allow Father and Father’s

current wife to testify about Father’s alleged disability; Father testified about

treatments he has received and treatments he is likely to receive in future;

this testimony did establish that Father’s condition may preclude him from

obtaining same employment he had before injury; however, Father’s

assigned earning capacity is not equal to amount Father earned at previous

employment; record does not establish that Father cannot work in some

capacity; in fact, denial of Father’s application for social security disability

benefits and termination of Father’s private disability benefits demonstrate

opposite; Father has not appealed his denial of social security disability

benefits or submitted new application; denial of Father’s application for

social security disability benefits stated that Father’s condition does not limit

his ability to work; Mother also introduced evidence to prove Father’s

condition did not prevent him from engaging in physical activity, which


                                      -6-
J-S33041-16


called Father’s credibility into question; Father’s current wife testified that

Father attempted to get his EMT license transferred to Indiana; Father’s own

social media posts demonstrate that Father participates in 5k walks/runs

while pushing stroller; Mother and maternal grandfather credibly testified

that Father lifts and carries Child; medical records and information about

how Father recently sustained hand injury while working in auto repair shop,

further calls into question Father’s accounts of his limitations; Father stated

before hearing officer that he planned to returned to school to pursue career

as teacher or psychiatrist; nevertheless, Father has not taken any steps

towards these educational pursuits despite lack of income for more than two

years; moreover, during custody proceedings, Father listed employment

opportunities as one of his reasons for relocation to Indiana; move to

Indiana requires Father to drive six hours each way to exercise custody,

which Father is able to do despite disability; under these circumstances,

hearing officer’s support recommendation was proper).         Accordingly, we

affirm on the basis of the trial court’s opinion.

      Order affirmed.

      Justice Fitzgerald joins this memorandum.

      Judge Olson concurs in the result.




                                      -7-
J-S33041-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2016




                          -8-
                                                                        Circulated 07/11/2016 10:38 AM
                                       ',.•,




IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                        FAMILY DIVISION


 C.£.W.                                        Opinion

                      Plaintiff,               No.: FD-11-006272-008
                                               Superior Court No. 1796 WDA 2015
   v.

 -r. \2... G.
                      Defendant.
                                               BY:

                                               Honorable Cathleen Bubash
                                               440 Ross Street
                      ,__!   ·-        ·=f



                -..
            c:,       ?S g ~~.                 Suite 5036
                      ()     -'._I') 1--       Pittsburgh, PA 15219
                                       f~
    0                 I_~    ~-'"

                       1 ··· L:J ,: )
    w           r-
                       :.::'·.,..       (_)

    _J                            ..    -      COPIES TO:
    -u.
                                               Counsel for Plaintiff:

                                               Angela R. Winslow, Esq.
                                               Pion Nerone Girman Winslow & Smith
                                               1500 One Gateway Center
                                               420 Fort Duquesne Blvd.
                                               Pittsburgh, PA 15222


                                               Counsel for Defendant:

                                               Gusty Sunseri, Esq.
                                               1290 Freeport Rd.
                                               Pittsburgh, PA 15238
      IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                              FAMILY DIVISION

       C. \<.W.

                             Plaintiff,                           No.: FD-11-006272-008

        v.

       i,'2..G.

                             Defendant.


                                                      OPINION


JudgeCathleen Bubash                                                                 December 17, 2015


                   c. R .w . (     \l   FCI h,er ")               appealsfrom my November 3, 2015 Order
which dismissed his exceptions and adopted the July 13, 2015 Recommendation that Father pay
$837.98 per month for the support of the parties' minor child. For the reasons that follow, my
Order should be affirmed.



                                   FACTUALAND PROCEDURAL HISTORY


         The parties were married on March 17, 2001 and had,               Chi \d    kw                   ..  ·,
2010, and divorced on May 26, 2011. Both have remarried and each has had another child with
their new spouses. In March of 2013, the parties entered into a consent order for shared custody
of,     C\'\~ ld     '.   but Father did not, in practice, exercise 50% custody time.          Mother and
maternal grandfather testified before the hearing officer that Father exercised custody

approximately 18% of the time. (TR. p. 27, 93). In approximately May of 2014, Father moved to
Indiana without notifying Mother and began exercising custody even more rarely.

                                                      l filed for child support on August 5, 201f. She also

                                                         2
petitioned for a custody modification       on November 7, 2014 upon discovering Father had

relocated to Indiana. A temporary custody order was entered which provided Father with one

long weekend per month of custody time with             C\\',\cl.
        The support case was declared complex due to Father's assertion that he was disabled

from working. A hearing to establish child support was ultimately held before a Hearing officer on
May 27, 2015. Evidencewas presented that Father was paying no support (TR. p. 12) at that time.

Evidencewas presented that Mother works three days per week as a dental hygienist, and that
she is looking for supplemental work. Her current Husband'sincome was presented, as was that of
Father's wife. Father, who claims complete disability, attempted to introduce medical recordsand
reports which were excluded as hearsay. Father and his current wife did, however, testify as to his

disability and its effects and limitations on his life. Moreover, Father's social security disability
applications and denials were also introduced.
        Mother requested that Father be assignedan earning capacitybasedon his actual previous
earnings of over $90,000.00 per year as a mining supervisor. Father requested that he not be
charged with child support at all due to his disability and his belief that he should be given the

"courtesy" he provided to Mother of not seeking support from her while she was in school
studying to be a dental hygienist. (T.R. p. 147).
         The Hearing officer found Mother's net income to be $1,379.00per month basedon her
paystubs and assigned Father a reasonable earning capacity of $15.00 per hour, 45 hours per
week, "given his employment history and education," for a net monthly income of $2,145.00.
Mother's expensesfor the child's schooling, daycare, and activities were presented and Father's
share was included in the calculation. This resulted in a child support award of $837.98 per month.
       · Father filed exceptions which I denied on November 3, 2015. Fatherfiled a timely Notice of

Appeal and, in response to an order issued pursuant to Pa.R.A.P. 192S(b), filed his Concise
Statement of Matters Complained of on Appeal, which are virtually identical to his original eight


1 A custody hearing was held as a result of Mother's Motion and on July 16, 2015 I awarded Mother primary
custody with Father having custody every third week of the summer and one weekend per month during the
school year.

                                                       3
exceptions, as follows:



            (a) The Trial Court erred in the assessmentof earning capacity of 1 fatnec ~ when
            they assessedhim at full time plus overtime earning capacity despite his disability.
            (b) The Trial Court erred in the assessment of M~l-he(s · earning capacity when they
            failed to impute a full time earning capacity toner.
            (c) The Trial Court erred in failing to oroperly prorate childcare costs and expenses
            when the amount presented by Mottler' was for the parties' child and, ~~th~({ other
            child.
            (d) The Trial Court erred in failing to properly adjust the amount of child care expenses
            due to the Federal Child Care Tax Credit for which.      ""om~<       · is eligible.
            (e) The Trial Court erred in failing to properly reduce support for fat·he,~      cost of
            health insurance premiums.
            (f} The Trial Court erred in failing to apply a multi-family reduction for
            J. .   rctfuQy
            (g) The Trial Court erred in failing to permit the introduction of I :ra.tt....er~      ,;
            medical records and reports necessaryto establish Father's disability.
            (h) The Trial Court erred in failing to reduce fo,\\,Q(S . mp port obligation despite the
            fact that he had shown a significant change m circumstances.




                                                  OPINION



In reviewing a recommendation       of support, this Court is not required to hold a second hearing, but

rather to make an independent          review of the record to determine          if the hearing officer's

recommendation       is adequately supported     therein.   Neil v Neil. 731 A.2d 156 (Pa.Super 1999).

Moreover,    this Court is bound by a hearing officer's determinations           of credibility,   especially

where, as here, they are supported by the substantial weight of the evidence. Moran v Moran.

839 A.2d 1091 (Pa.Super 2003).            In the instant    case, I found that the Hearing Officer's

recommendation       was supported by the record. I found that many of the hearing officer's findings

regarding Father's disability as well as Mother's expenses for the child were based on credibility

determinations     with which I agreed.


                                                     4
         (a) In his first assignment of error,   ra.~er states it was error to assign him an earning
capacity greater than full time, despite his claimed disability. The Hearing officer assignedhim an

earning capacity of $15.00 per hour, significantly lower than his last employment income. He held
him to a 45 hour workweek, as overtime was commonplace in his former employment.

         I first determine that assigning Father an earning capacity was appropriate. While he may
not have willfully left a job, Father has an obligation to support his child. Regardlessof this fact, he

has made no effort to obtain any type of income - whether from employment or disability
payments - since 2013.         When Father's claims were denied and when his private disability

payments were discontinued, he failed to appeal. Father introduced no evidence of anyjob search
at all or evidence of what he could earn or whether overtime would or would not be available to

him. I found, under the circumstances that this failure to affirmatively seekdisability payments or
any type of employment was tantamount to a voluntary reduction of Father's income.
         The evidence before the Hearing officer was that Father's previous employment included

significant overtime, which Father referenced when applying for the disability benefits which were
denied. Evidence regarding Father's disability and the extent to which it limits his ability to work is

discussedbelow with regard to his assignment of error at (g).
         A person's support obligation is determined primarily by their actual financial resourcesand
their earning capacity. Hoag v. Hoag, 646 A.2d 578 (Pa. Super. 1994). Although a person's actual
earnings usually reflect his earning capacity, where there is a divergence, the obligation is
determined more by earning capacity than actual earnings. See, DeMasi v. DeMasi, '530 It 2c\ 81 I

(~ct-~1A.per. l981).   Earningcapacity is defined as the amount that a person realistically could earn

under the circumstances, considering his age, health, mental and physical condition, training, and
earnings history. Gephart v. Gephart, 764 A.2d 613 (Pa.Super.2000).See, Pa.R.C.P 1910.16-2.
         I did not find the Hearing officer's decision to be unreasonable or punitive under these

circumstances, considering Father's age, health, mental and physical condition, training and
earning history, including any disability. The Hearing officer utilized an hourly wage which was
significantly lower than Father's previous income, which I found reflected, that the Hearing officer
took all of the relevant factors into consideration. The amount assessed is one which Father could

                                                     5
realistically earn.

         Assuming, arguendo, that including overtime in the calculations was error, the effect of

Father's monthly obligation is minimal, resulting in a net difference of $64.00 per month.
         (b) Father next complains that Mother was not assigned a full time earning capacity.

Mother presented evidence of the jobs she has been seeking in addition to the job she currently
holds at 18 hours per week, $22.00 per hour. (TR. p. 14-17). Mother credibly testified that dental

hygienists are traditionally hired part time and introduced evidence that she has been seekingan
additiona I job. Additionally, Mother hasvery young children at home, including Father'schild. Any

additional work she would pick up would impact her daycare costsand Father's responsibility for
the same. Mother recently underwent treatment for breast cancerwhich likely impacted her job
search as well. I found using Mother's actual earnings to be appropriate.

         (c) Father's third assignment of error is related to Mother's child care expenses. Both
Mother and the caregiver she employs testified that Mother's childcare costs are a fixed cost per
week- regardless of whether the caregiver watches one or both children or if Mother reducesher
days or hours. (TR. p. 20, 47-48. 89-90). The Hearing officer found this testimony credible. She
was, therefore correct in not "pro-rating" the childcare expenses. Mother also introduced
evidence of the child's pre-school expenses and costsfor dance lessonsfor which she had received
no contribution from Father.
         (d) Father complains that the Court did not adjust childcareexpensesto reflect the Federal

Child Care Tax Credit for which Mother is eligible. In Allegheny County, hearing officers utilize the
PACSES System which itself includes the Tax Credit internally as part of the computer generated
calculation and it is therefore not customarily set forth in the recommendation. Hearing Officers
enter the actual expense incurred into the system for calculation. This assertion of error has no
merit.

         (e) & (f) Father complains that downward deviations were not provided for the cost of the
provision of health insurance and for the multi-family discount. Husband'scurrent Wife coversthe

cost of health insurance for her four family members and the child of the parties (TR. p. 7).
Husband hastwo children with his wife and argued at Exceptionsthat the amount he must pay in

                                                  6
support for those children, coupled with the instant support for the subject child, is more than half

of his income. However, Father is paying nothing        for those two children with his wife as he has no
income whatsoever.

         I found that these assertions, even if they had merit, were more than offset by the

additional income in Father's household, which the hearing officer did not address. Father's
current Wife has no obligation to support his child with Mother but her substantial contributions
to household income offset a great deal of Father's personal self-sustainingexpenseswhich make
up a significant part of the calculations for support.

         (g) Father asserts it was error to deny the introduction of the medical records and reports
he claims were necessaryto establish his disability. The information Father brought with him was

inadmissible as hearsay. Mother's objection to the introduction of the records brought by Father
was justifiably sustained. Father provided no documentary medical evidence which could have
been rightfully admitted to meet his burden of establishing disability. It was not Mother's burden.

         As to his assumption at (h), Father introduced no new evidence and there was no prior
order.

         The hearing officer did, however, allow testimony by both Father and his current Wife
regarding Father's alleged disability. Father testified regarding treatment receivedand treatment
which is likely coming up. Upon my reading of the transcript, I do not doubt that Father suffers

from significant back troubles. He may, in fact, be precluded by his condition from obtaining the
same employment he had before his injury - but he was not held to the income of that

employment in the hearing offer's recommendation.
         There is nothing in the record which establishesthat Father cannot work in some capacity.
In fact, the social security disability denials as well as the termination of his disability benefits
which are in the record and admitted to by Father, demonstrate just the opposite. Father first

applied for SSD in West Virginia in 2013 but never followed up on receivinga determination. {TR. p.
74M75). He applied in Indiana and was denied in 2014 (TR. p. 76-77). He did not appeal this ruling,
nor has he reapplied. (TR. p. 78M80, 86). The SocialSecurity Administration determination stated
that his condition did not limit his ability to work. His private disability insurance carrier, likewise,

                                                    7
denied his claim for continued disability payment . (TR. p. 81}.

            Evidence was also introduced which went to prove that Father's condition did not prevent

him from engaging in physical activity, which also called into question Father's credibility. His wife

testified     that he attempted    to get his EMT license, for work which is clearly very physical,

transferred to Indiana. (TR. p. 140). His own social media posts were introduced and demonstrate

that he participates in SK walk/runs and that he does so while pushing his child's stroller. (TR. p.

116-119}.       Mother and maternal grandfather       credibly testified that Father lifts and carries

C\ttt\dJ      . who weighs significantly more than the 25 pounds Father was initially    limited to lifting
after he sustained his injury. {TR. p. 37, 93-94). Information contained in medical reports from

Father's emergency room visits necessitated by injuries he received in a friend's auto repair shop,
as well as Father's testimony of the events which led to the injuries also call into question his
accounts of the extent of this disability. (TR. p. 125-129}.

            Father stated before the hearing officer that he wants to return to school to become either
"a teacher or a psychiatrist." (TR. p. 111). Apparently, then, Father himself agrees that he could
perform more sedentary work. Yet he has sought none nor has he taken any steps to move

forward with any educational pursuits despite having no income whatsoever for over two years.
            In addition to al I of the information before the Hearingofficer at the support hearing, these
parties are also known to me from their custody matters. One of the reasons Father gave the
court for moving to Indiana in his Petition for Relocation was the opportunity for employment.

Because of the move, Father must drive 6 hours each way to come and exercise custody. He

testified he has done it quite often. Apparently, long trips in a car are something he can do despite
his disability.

            I found that the hearing officer's reasoning was sound and that much of his decision was
based on his determination of the credibility of the witnesses, with which I agreed. For these

reasons, the Order of this Court dated November 3, 2015. should be affirmed.




                                                                               ~J.


                                                      8
