J-S08013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.P.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

T.M.

                            Appellant              No. 1037 WDA 2015


                  Appeal from the Order dated June 11, 2015
              In the Court of Common Pleas of Lawrence County
       Domestic Relations at No: Case No. 420 of 2006, D.R. PACSES No.
                                  607108347


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MAY 20, 2016

       In this child support matter, Appellant T.M. (“Father”) appeals from

the June 11, 2015 order of the Court of Common Pleas of Lawrence County

(“trial court”), which, inter alia, assessed M.P. (“Mother”) with a $1206.19

net monthly income, Father with a $2,363.50 net monthly income, and

established Father’s monthly support obligations for their minor daughter

(“Child”) (born in October 2002), as $760.48, including $224.84 in private

school tuition, plus arrears.1 Upon review, we affirm in part, vacate in part

and remand.



____________________________________________


1
 Because this case affects a minor child, we have abbreviated the parties’
names.
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      The facts and procedural history underlying this case are undisputed.

On February 4, 2015, Mother filed a “Petition for Modification of an Existing

Support Order” for Child, claiming only a change in her income.       Mother

sought to modify the trial court’s January 15, 2013 order that assessed her

with a net monthly earning capacity of $2,017.68, Father with a net monthly

income of $2,433.93, and set Father’s child support obligations at $630.59,

which included a monthly payment of $137.20 for private school tuition.

      On May 5, 2015, the trial court held a de novo hearing on Mother’s

modification petition, at which Mother argued that her actual earnings did

not match the earning capacity assessed to her by the trial court in the

January 15, 2013 order. Mother argued that she earned less because she

worked fewer than 40 hours per week. Mother testified that she worked as

a therapeutic staff specialist for Comprehensive Children and Family

Services, providing one-on-one care to children for purposes of integrating

them into various settings, including their school and their communities.

N.T. Hearing, 5/5/15, at 7-8. Mother testified that she earned $12 per hour

and worked about 26.25 hours per week with three clients.      Id. at 9, 15.

She testified that she picked up more hours when she filled in for other

specialists.   Id. at 10.   Mother was paid bi-weekly.   Id. at 43.   Mother

claimed that it was difficult for her to get more hours because of scheduling

issues. Id. at 9-10. Mother testified that her income would be reduced in

the summer when school was not in session.       Id. at 12.   Mother further

testified that she had signed a non-compete agreement, which barred her

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from seeking other employment in the mental health field.          Id. at 20.

Finally, Mother sought an increase in Father’s contribution towards Child’s

schooling, because tuition for private school had increased. Mother testified

that tuition for the private school was $4,400.00 per year. Id. at 22.

      On cross-examination, Mother acknowledged that she was not seeking

other employment to supplement her income.              Id. at 31.       Mother

acknowledged that she had no physical incapacities that would limit her

employment options. Id. at 40. Mother also acknowledged that the tuition

for a second child at the private school was reduced by $650.00 and was

thus $3,750.00 per year. Id. at 37. Following the hearing, the trial court

assessed Mother with a $1206.19 net monthly income, Father with a

$2,363.50 net monthly income, established Father’s monthly support

obligations for Child as $760.48, including $224.84 in private school tuition,

plus arrears, and set Father’s and Mother’s liability for unreimbursed medical

expenses in excess of $250.00 for Child at 66.21% and 33.79%,

respectively. Father timely appealed to this Court.

      Upon the trial court’s direction, Father filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, raising four assertions of error.

First, Father argued that the trial court’s finding that Mother’s net monthly

income was $1206.19 was unsupported by the record.            Second, Father

argued that the trial court abused its discretion in determining that Mother

established a substantial change in circumstances warranting a modification

of her support obligations. In this regard, Father claimed that the trial court

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failed to render any findings necessary to justify a deviation from Mother’s

assessed earning capacity of $2,017.68. Third, Father argued that the trial

court abused its discretion in calculating his tuition payment for Child’s

private school, because the court did not take into account the amount of

the discount offered to a second child. Fourth, Father argued that the trial

court erred in calculating the percentage of each parent’s liability for Child’s

unreimbursed medical expenses. In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion, addressing Father’s assertions of error and

concluding that they do not warrant any relief.     Father timely appealed to

this Court.

       On appeal, Father repeats these four issues for our review.2

       The standard of review of a trial court’s decision in a support case 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 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.
____________________________________________


2
  To the extent Father argues that the trial court erred in failing to order
interim relief to Father, we decline to address this argument because it was
not raised before the trial court or in Father’s Rule 1925(b) statement. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).



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Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super. 2012) (citations

omitted).

      Father first contends that the trial court’s finding regarding Mother’s

net monthly income was not supported by the record.        We disagree.   The

trial court based its calculation of Mother’s net monthly income on Mother’s

uncontroverted testimony that she worked a total of 26.5 hours per week at

a rate of $12.00 per hour. As the trial court explained:

      [Mother’s] average gross monthly earning should be calculated
      by multiplying the sum of 26.5 hours per week times 4.3 weeks
      per month, resulting in [Mother] working 113.95 hours per
      month. At $12.00 per hour, [Mother’s] average gross monthly
      wages total $1,367.40. Following application of the standard tax
      rates to the average gross monthly earning of $1,367.40, the
      [trial court] finds that [Mother’s] average net earnings are
      $1,206.19 per month.

Trial Court Opinion, 4/14/16, at 3. Accordingly, Father is not due any relief

on this issue.

      Father next contends that the trial court abused its discretion in

modifying Mother’s support obligations because Mother failed to establish a

change in circumstances sufficient to justify a deviation from her assessed

earning capacity of $2017.68.

      It is settled that:

      [a]n award of support, once in effect, may be modified via
      petition at any time, provided that the petitioning party
      demonstrates a material and substantial change in their
      circumstances warranting a modification.      See 23 Pa.C.S.
      § 4352(a); see also Pa.R.C.P. No. 1910.19. The burden of
      demonstrating a “material and substantial change” rests with the
      moving party, and the determination of whether such change
      has occurred in the circumstances of the moving party rests
      within the trial court’s discretion.


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Summers v. Summers, 35 A.3d 786, 789 (Pa. Super. 2012) (citations

omitted) (emphasis added).          A change in circumstances is considered

substantial so as to warrant a modification when the change is “either

irreversible or indefinite.”    R.C. v. J.S., 957 A.2d 759, 763 (Pa. Super.

2008); see Crawford v. Crawford, 633 A.2d 155, 164 (Pa. Super.

1993) (noting that the change in circumstance must be permanent). “Where

a party assumes a lower paying job or willfully fails to obtain appropriate

employment, the support obligation is determined by his [or her] assessed

earning capacity.” Baehr v. Baehr, 889 A.2d 1240, 1245 (Pa. Super. 2005

(citation omitted). Stated differently, “[i]t is settled law that a party cannot

voluntarily reduce his earnings in an attempt to circumvent his support

obligation.” Woskob v. Woskob, 843 A.2d 1247, 1254 (Pa. Super. 2004).

      Instantly, the trial court based its decision to modify Mother’s support

obligations on the fact that she was unable to secure more hours at her

current job and that she had a non-compete agreement with her employer

prohibiting her from seeking other employment in the same field.           This,

however, is insufficient under the law to establish a material and substantial

change in circumstance.        As our review of the hearing transcript reveals,

Mother testified only about her existing employment situation without

putting it into context vis-à-vis her circumstances at the time of the January

15, 2013 support order. Mother did not testify whether she worked at the

time of the support order on January 15, 2013 or, if she did work, what her

job was or entailed.    Similarly, Mother did not testify about whether her

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existing job was different from the job she might have had in January 2013.

If she switched employment, Mother did not provide a reason for doing so.

Assuming Mother’s existing job was different, Mother did not provide any

evidence to indicate why she chose to accept the current job, earnings from

which fell below her earning capacity, or why she signed the non-compete

agreement, a copy of which was not introduced or admitted into evidence.

Further, the record is bereft of any indication that Mother’s existing situation

was triggered by disability, illness or other compelling reason beyond her

control.   We also are unable to tell from the record whether Mother is

attempting to re-litigate the January 15, 2013 support order, or if she truly

is arguing that her circumstances have changed since that time.         Because

Mother failed to develop adequately a record to establish that her changed

circumstances were material, substantial and not voluntary, the trial court

abused its discretion in modifying her support obligations.

      Given our conclusion that the trial court abused its discretion in

modifying Mother’s support obligations, we are unable to address Father’s

third and fourth issues on appeal and, as a result, direct the trial court to re-

calculate the parents’ tuition obligations and liability for unreimbursed

medical expenses.

      In sum, we affirm the trial court order to the extent it properly

calculated Mother’s actual monthly net earnings, vacate it to the extent it

modified Mother’s support obligations and remand for further proceedings

consistent with this Memorandum.

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      Affirmed in part.   Vacated in part.   Case remanded.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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