J-S72045-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

C.L.W.,                                 :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                 Appellee               :
                                        :
                   v.                   :
                                        :
R.J.W., JR.,                            :
                                        :
                 Appellant              :    No. 365 MDA 2016

               Appeal from the Order Entered February 5, 2016,
                in the Court of Common Pleas of York County,
                     Civil Division at No(s): 1347-SA-2004

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED DECEMBER 06, 2016

      R.J.W., Jr. (Father) appeals from the order of February 5, 2016, which,

inter alia, modified Father’s child support obligation. Upon review, we vacate

the order of the trial court and remand for proceedings consistent with this

memorandum.

      Father and C.L.W. (Mother) are formerly husband and wife and are the

parents of two children, Daughter, age 17, and Son, age 15.       Mother has

primary physical custody of Son and Father has primary physical custody of

Daughter.1 The parties have been litigating support obligations since 2004,

and the most recent filing is Mother’s petition filed on August 5, 2015, for

amendment of support order. After a conference before Amanda Fritzius, a



1
 Both children resided with Mother until July 2014 when the parties reached
an agreement that Daughter would live with Father.

*Retired Senior Judge assigned to the Superior Court.
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domestic relations conference officer, Father’s child support obligation

increased from $900 per month to $1,675 per month. This obligation was

based on an earning capacity of $350,000 per year for Father, who is a

board certified general surgeon.      Father filed a request for a de novo

hearing.

      Hearings were held on November 5 and December 16, 2015. Father

testified about his medical practice in the prior years. He testified that he

entered into a consent order with the state of Maryland regarding his license

to practice medicine in 2011.      Specifically, he agreed not to perform a

specific gall bladder procedure in the future, and in January of 2013 he

began a probationary period during which he claimed he was unable to

obtain hospital privileges. However, he maintained employment at Surgical

Associates Chartered located in southern Maryland, saw patients in the

office, and his practice was limited to surgeries that could be performed in

the office. N.T., 11/5/2015, at 24. Since at least January of 2013, Father

claimed he was only able to earn $120,000 per year. He also testified that

once his probationary period expired, in January of 2016, he believed he

would be able to obtain hospital privileges and increase his salary. Id. at 27.

Specifically, he testified that his “patient load should quadruple.” Id.




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      Mother called Fritzius to testify on her behalf.2 Fritzius testified about

how she arrived at the earning capacity of $350,000 for Father. Specifically,

she found “a salary from an internet web site stating what a trauma surgeon

earns in the Washington, D.C. area.” N.T., 12/16/2015, at 37. That website

showed a median annual salary of $389,325. She testified that she “went to

a couple of web sites regarding the salary of a general surgeon in that area,

as well as took into consideration what [Father’s] home was valued at.”3 Id.

She also reviewed “some tax returns, W-2s, [and] conference notes from

past conferences.” Id. at 38.

      When questioned about why she used salaries for a trauma surgeon

when Father is a general surgeon, Fritzius testified that she “also pulled off

general surgeons,” but she “did not know what type of surgeon he actually

was.” Id. at 40.   In addition, when questioned about Father’s geographic

area of practice, she testified that she “was under the impression [Father]

practiced in the DC area but didn’t necessarily live there, commuted there.”

Id.   Moreover, she testified that she was unaware that Father’s license to

practice medicine was subject to restrictions. Id. at 39.




2
  It is potentially improper for a conference officer to testify on a party’s
behalf at a de novo hearing. See Pa.R.E. 605 (“The presiding judge may not
testify as a witness at the trial or other proceeding.”) (emphasis added).
3
 Father testified that his home was worth $795,000, but had been valued at
$1,450,000 before he purchased it. N.T., 11/5/2015, at 42. He owes
$972,000 on the mortgage.


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        At the close of the hearing, the trial court permitted both parties to file

memoranda and proposed findings of fact. Mother filed a memorandum, but

Father did not.     On February 4, 2016, the trial court filed an order and

opinion concluding that during Father’s probationary period, his earning

capacity is held to $120,000.      However, “once Father’s probation ends on

January 31, 2016, he shall be held to an earning capacity of $350,000.” Trial

Court Opinion, 2/4/2016, at 7.          Specifically, the trial court found that

“grounds for modification existed as change in the needs of the child and the

end of Father’s probationary period presents a substantial change in

circumstances that may modify the support order.” Id. Father timely filed a

notice of appeal, and both Father and the trial court complied with Pa.R.A.P.

1925.

        On appeal, Father argues that the trial court erred in setting his

earning capacity at $350,000 after January 2016.          We set forth our well-

settled standard of review and applicable principles of law with respect to a

child support order.

        The amount of a support order is largely within the discretion of
        the trial court, whose judgment should not be disturbed on
        appeal absent a clear abuse of discretion. An abuse of discretion
        is not merely an error of judgment, but rather a misapplication
        of the law or an unreasonable exercise of judgment. A finding
        that the trial court abused its discretion must rest upon a
        showing by clear and convincing evidence, and the trial court will
        be upheld on any valid ground. For our purposes, an abuse of
        discretion requires proof of more than a mere error of judgment,
        but rather evidence that the law was misapplied or overridden,
        or that the judgment was manifestly unreasonable or based on
        bias, ill will, prejudice or partiality.


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Portugal v. Portugal, 798 A.2d 246, 249-50 (Pa. Super. 2002) (internal

quotation marks and citations omitted).

      [A] person’s support obligation is determined primarily by the
      parties’ actual financial resources and their earning capacit[ies].
      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.
      Earning capacity 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.

Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004) (internal

citations omitted).

      Instantly, there is no dispute that Father’s earnings during his

probationary period do not reflect his actual earning capacity. Thus, the trial

court had to undergo measures to make that determination.         It is in this

regard that Father argues the trial court erred.     Specifically, he contends

that the trial court erred in relying upon an internet search in reaching its

conclusion. Father’s Brief at 13. Father also argues that the trial court erred

in utilizing earnings for surgeons in Washington, D.C., when he practices in

Maryland. Id. at 15. Finally, Father contends that the trial court erred “by

holding [him] to earnings which he has never earned prior to or during his

suspension/probation period.” Id. at 16.

      The rule governing how a trial court should assess earning capacity

provides the following.




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            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 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).

      First, with respect to the trial court’s use of an internet search to

determine earning capacity, Father argues that this was error by relying on

Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007).      In Ney, the father sought a

modification of his child support obligation due to a reduction in his income.

In concluding that the father was not entitled to a reduction, the trial court

“sua sponte considered hearsay evidence not of record in assessing [the

father’s] credibility and determining his earning capacity.” Id. at 866.

Specifically, the trial court conducted an internet search of jobs in the area

in determining the father’s earning capacity. This Court held that this type

of internet search, which led to reliance upon facts outside the record,

constituted reversible error.

      Instantly, Fritzius testified at the de novo hearing that she did the

exact same thing in determining Father’s earning capacity.       She testified

that she conducted an internet search of what surgeons earn in the

Washington D.C. area. N.T., 12/16/2015, at 37. However, she also testified

that when conducting her research, she did not know “what type of surgeon


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[Father] actually was” and was not certain of where he practiced. Id. at 40.

Thus, not only was the internet search conducted by Fritzius improper, the

information she used in calculating Father’s earning capacity was erroneous.

Accordingly, we hold the trial court abused its discretion in relying on this

information.

      Moreover, Fritzius testified that Father’s income prior to his 2013

suspension was $225,000. N.T., 12/16/2015, at 41. While past earnings are

not necessarily predictive of future earning capacity, the record before us is

devoid of any information that would show that Father’s earning $225,000

was below what a surgeon would earn.

      Based on the foregoing, we vacate the order of the trial court.

Although the earning capacity the trial court set for Father may ultimately be

shown to be appropriate, the trial court abused its discretion in making that

finding based upon the evidence of record. Thus, we vacate the order of the

trial court and remand for a new hearing at which both Mother and Father

have the opportunity to present evidence of Father’s earning capacity.




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     Order vacated.4 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2016




4
  In the interim, Father shall be held to the earning capacity of $225,000
after January 2016. To the extent that his earning capacity differs in a
future order, the trial court shall credit payments going forward.


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