J-A30028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARTA M. LLAURADO                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAVIER GARCIA-ZAPTA

                            Appellant                  No. 707 EDA 2015


                     Appeal from the Order February 2, 2015
               In the Court of Common Pleas of Delaware County
           Civil Division at No(s): 2013-00556; PACSES: 256113852


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                        FILED DECEMBER 21, 2015

        Appellant Javier Garcia-Zapata (“Father”) appeals from the February 2,

2015 order entered in the Delaware County Court of Common Pleas, which

allocated spousal and child support to Appellee Marta M. Llaurado (“Mother”)

and the parties’ three minor children, who reside with Mother. We quash in

part and affirm in part.

        The parties were married on October 10, 1989, in New Orleans, LA,

and had three children, the youngest of whom is three years old.          The

children currently reside with Mother and Mother’s parents in Florida.     On

May 17, 2013, Mother filed a complaint against Father for divorce, equitable



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*
    Former Justice specially assigned to the Superior Court.
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distribution of marital property, alimony, alimony pendent lite, spousal

support, and attorney’s fees.

      On December 17, 2013, the trial court filed a support order based on

Father’s income of $13,317.00 per month and Mother’s income of $0 per

month and awarded Mother $3,176.00 of spousal support, monthly, and

$2,730.00 of child support, monthly.      On March 24, 2014, the support

master issued recommendations, including a wage attachment.

      The trial court set forth the relevant procedural history of this appeal

as follows:

         On or about March 31, 2014, [Father] filed exceptions
         from    the    Master’s   March     24,    2014     support
         recommendations. On or about April 9, 2014, [Mother]
         filed a contempt petition against [Father]. The de novo
         support hearing and the contempt petition were scheduled
         [for a hearing on] June 6, 2014. At the June 6, 2014
         hearing, the support matter was relisted and the trial court
         put [Father] in Nonfinancial Obligation Status, per his
         request and held the contempt in abeyance.

         Multiple review hearings were held on the contempt
         petition and support appeal on the following additional
         dates: July 15, 2014, September 10, 2014 and December
         15, 2014. Importantly, the contempt petition had been
         held in abeyance at all the prior hearings. On December
         15, 2014, scheduled for a review of the contempt
         [petition], the trial court issued an order dated December
         15, 2014 which held the contempt in abeyance, ordered
         [Father] to obtain employment, ordered a review of
         [Father’s] liquidated assets and finally ordered [Father] to
         produce the whereabouts of a boat, which was titled to
         [Mother] and relisted the matter for February 2, 2015.

         During the February 2, 2015 hearing, scheduled to address
         both the de novo support and the contempt against
         [Father], the trial court permitted testimony and evidence


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        with respect to not only the parties’ income and earning
        capacity for purposes of determining support but also
        information of, or concerning, [Father’s] liquidated assets
        available to satisfy arrears and monthly support obligations
        consistent with the trial court’s order dated December 15,
        2015.

        At the conclusion of the February 2, 2015 hearing, the trial
        court issued two separate orders. One such order, dated
        February 2, 2015[,] dealt solely with the support matter
        finding a base [child] support of $2,383.00, spousal
        support in the amount of $2,560.00 for a total monthly
        base order of $4,943.00 plus arrears at the standard ten
        (10) percent (hereafter “February 2015 Support Order”).
        The second order, likewise dated February 2, 2015[,]
        addressed [Father’s] contempt whereby the trial court
        again held the contempt in abeyance to review payments
        and relisted the matter for May 4, 2015 (hereafter
        “February 2015 Contempt Order”).

        [On March 4, 2015, Father] timely appealed the February
        2015 Support Order although a portion of [Father’s]
        complaints deal exclusively with considerations the trial
        court undertook in deciding the February 2015 Contempt
        Order, which did not find Appellant in contempt.

Trial Court 1925(a) Opinion, filed May 11, 2015, at 1-2 (some capitalization

omitted).

     On March 9, 2015, the trial court ordered Father to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and he timely complied on March 25, 2015.

     Father raises the following issues for our review:

        1. WHETHER THE TRIAL COURT ERRED AND/OR ABUSED
        ITS DISCRETION BY FAILING TO CONSIDER ANY
        DOWNWARD DEVIATION OF THE SUPPORT OBLIGATION
        GIVEN THE FACT THAT [MOTHER] HAS EITHER NO OR
        SUBSTANTIALLY REDUCED LIVING EXPENSES?




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          2. WHETHER THE TRIAL COURT ERRED AND/OR ABUSED
          ITS DISCRETION BY IMPUTING A PURPORTED EARNING
          CAPACITY TO [FATHER] IN THE AMOUNT [OF]
          $154,137.00/ YEAR?

          3. WHETHER THE TRIAL COURT ERRED AND /OR ABUSED
          ITS DISCRETION BY FAILING TO GRANT [FATHER] ANY
          RELIEF DURING THE PERIOD OF TIME THAT HE WAS
          UNEMPLOYED?

Father’s Brief at 4.

      As a preliminary matter, we must determine whether this is a final and

appealable order. On April 6, 2015, this Court ordered Father to show cause

within 10 days as to the appealability of the issues regarding spousal

support because the divorce decree had not been entered and all economic

claims had not been resolved. Father did not respond. On April 20, 2015, in

accordance with the rule to show cause and Father’s failure to respond, this

Court ordered that only the portion of the order in child support would be

referred to the panel assignment to decide the merits of the appeal, but

noted that order was not a final determination as to the propriety of the

appeal.

      “It is well-recognized that a spousal support order entered during the

pendency of a divorce action is not appealable until all claims connected with

the divorce action are resolved.” Capuano v. Capuano, 823 A.2d 995, 998

(Pa.Super.2003)        (citing   Fennell    v.   Fennell,   753   A.2d   866,   867

(Pa.Super.2000); Deasy v. Deasy, 730 A.2d 500, 502 (Pa.Super.1999),

appeal denied, 753 A.2d 818 (Pa.2000)). During the pendency of a divorce



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action, “the portion of a trial court order attributable to child support is final

and immediately appealable; however, the portion of an order allocated to

spousal support is interlocutory.” Id.

      Here, because the divorce action is still pending, Father’s issues that

relate to spousal support are interlocutory, but his issues regarding child

support are immediately appealable.        Thus, we quash the appeal to the

extent it relates to spousal support and proceed to the merits of this appeal

as they relate to child support.

      In child support cases, our standard of review is as follows:

         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. Kessler v. Helmick, 672 A.2d 1380,
         1382 ([Pa.Super.]1996) (quoting Griffin v. Griffin, 558
         A.2d 75, 77 ([Pa.Super.]1989) (en banc)). 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.”

Isralsky v. Isralsky, 824 A.2d 1178, 1186 (Pa.Super.2003) (quoting

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

      “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.”

Brickus v. Dent, 5 A.3d 1281, 1284 (Pa.Super.2010).

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     In his first issue, Father argues the court erred by failing to deviate

downward from the child support guidelines based on the fact that Mother

has few expenses because she is living with her parents. We disagree.

     The Support Guidelines provide, in relevant part:

        (a) Applicability of the Support Guidelines.

        (1) Except as set forth in subdivision (2) below, the
        support guidelines set forth the amount of support which a
        spouse or parent should pay on the basis of both parties’
        net monthly incomes as defined in Rule 1910.16-2 and the
        number of persons being supported.

Pa.R.C.P. No. 1910.16-1.

        Under the guidelines, the amount of the support award
        determined by application of the grids and formulas is
        presumed to be correct, and that presumption is rebutted
        only where “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” Pa.R.C.P. 1910.16-1(b).

McGinnis v. McGinnis, 654 A.2d 563, 565 (Pa.Super.1995).

     Pa.R.C.P. 1910.16-5(b) provides the following factors for the trier of

fact to consider in deciding whether to deviate from the amount of support

determined by the guidelines:

        (1) unusual needs and unusual fixed obligations;

        (2) other support obligations of the parties;

        (3) other income in the household;

        (4) ages of the children;

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


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         (6) medical expenses not covered by insurance;

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

         (8) in a spousal support or alimony pendente 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. No. 1910.16-5(b).

         These factors are the only factors that a trier of fact may
         consider in determining whether to deviate. Thus, the trier
         of fact does not have unfettered discretion to, in each
         case, deviate from the recommended amount of support.
         Deviation will be permitted only where special needs
         and/or circumstances are present such as to render an
         award in the amount of the guideline figure unjust or
         inappropriate.

McGinnis, 654 A.2d at 565 (internal quotations and citations omitted).

      Here, in declining to deviate from the guidelines, the trial court

reasoned:

         Based upon the testimony and evidence presented,
         [Mother] is the primary caregiver of three children, one of
         whom is three years old. [Mother], with no job and not
         able to collect support from [Father], has no source of
         income for housing and is forced to reside with her
         parents. No evidence was presented to the trial court
         during the course of the hearing to establish that [Mother]
         had the financial capacity to obtain paid housing, but
         [chose] instead to live with her parents to obtain a windfall
         from [Father]. The trial court therefore found no basis to
         downwardly modify [Father’s] support obligation based
         upon the sole fact that [Mother] resides with her parents,
         which this court found was a choice driven by financial
         necessity.

Trial Court Opinion, at 6 (some capitalization omitted).

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      We see no abuse of discretion in the trial court’s refusal to deviate

from the guidelines based on the fact that Mother and the children reside

with Mother’s parents. Accordingly, Father’s first claim fails.

      In his second issue, Father argues the court erred in computing his

earning capacity. He claims the court merely averaged two “random and not

very recent tax years,” and ignored all other factors it was required to

consider, most importantly the length of time Father has been out of the

relevant workforce. Again, we disagree.

      “[T]he support guidelines set forth the amount of support which a

spouse or parent should pay on the basis of both parties’ net monthly

incomes as defined in Rule 1910.16-2 and the number of persons being

supported.” Pa.R.C.P. No. 1910.16-1(a)(1).

         [A] person’s support obligation is determined primarily by
         the parties’ actual financial resources and 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, 597 A.2d 101
         ([Pa.Super.]1991). 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. Gephart
         v. Gephart, 764 A.2d 613 (Pa.Super.2000).

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

         Where a party willfully fails to obtain appropriate
         employment, his or her income will be considered to be
         equal to his or her earning capacity. Pa.R.C.P. 1910.16-
         2(d)(4). A determination of earning capacity must consider
         the party’s age, education, training, health, work

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        experience,      earnings   history,   and    child    care
        responsibilities. Id.; Kersey v. Jefferson, 791 A.2d 419,
        423 (Pa.Super.2002). Accord DeMasi v. DeMasi, 530
        A.2d 871, 877 ([Pa.Super.]1987) (holding that “[a]
        parent’s ability to pay support is determined primarily by
        financial resources and earning capacity.... The obligation
        of support, then, is measured more by earning capacity
        than by actual earnings.”)

Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa.Super.2003).

     Here, the trial court reasoned:

        The trial court candidly explained on the record how it
        arrived at an earning capacity for [Father].2 Indeed, the
        trial court found that [Father] had a net annual earning
        capacity of $131,016, or “$10,918 per month.” (N.T.
        2/12/2015, at p.98-99). Although the net monthly figure
        was not included in the body of the February 2015 Support
        Order, it was stated on record. Furthermore, the trial court
        did not impute an annual net income of $149,613.00, but
        the record is clear that [Father’s] net annual income was
        imputed at $131,016.00.
           2
             The Court: “I took [Father’s] income from 2010
           and 2011, the full income, not the income on his tax
           returns, so I included back in the pre-401(k)
           deduction. I took those two years, averaged them,
           and-came up with $154,137. I’m finding that is his
           earning capacity. I allowed 15-percent for taxes.
           That was the rate that the parties paid when they
           were residing together, based on their 2011 tax
           return, which netted him $131,016, or $10,918 per
           month.” (N.T. 2/12/[2015], at p. 98).

                                *       *    *

        During the case history, the trial court has afforded
        [Father] ample time and opportunity to obtain employment
        commensurate with his specialized knowledge and
        expertise.  [Father] has an engineering degree and a
        Master’s Degree in Business Administration.        (N.T.,
        2/12/2015, at p. [64]). [Father] also has had at least
        since August 2013 to locate employment.            (N.T.,

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       2/12/2015, at p. 55). Indeed, the record reflects that
       [Father] was terminated from a high-paying position at
       NRG in August 2013 whereby he had a base salary of
       $205,000 and bonus pay between $40,000-$50,000 (N.T.,
       2/12/2015, at p. 11). Before [Father’s] employment with
       NGR, he worked at First Choice Power earning a base
       salary of $105,000-$106,000 with substantial bonus
       opportunity. (N.T., 2/12/2015, at p. 11-12). In spite of
       [Father’s] long spanning history as a high earner, he
       testified during the course of hearing that he could only
       obtain a $30,000/year job with a bonus incentive working
       at WMS Consulting Marketing Services (hereafter “WMS”).
       (N.T., 2/12/2015, at p. 15). [Father] testified, however,
       that WMS is owned and/or operated by a friend of
       [Father’s], who used to work for [Father], calling into
       question the authenticity of [Father’s] attempts to
       establish meaningful employment as opposed to merely
       appearing compliant with the trial court’s numerous
       directives to locate meaningful employment for a person of
       his qualifications.

       Indeed, the trial court on two separate occasions put
       [Father] into Non-Financial Obligation Status to help him
       obtain employment as well as holding contempts against
       [Father] in abeyance. (N.T., 2/12/2015, at p. 29). Based
       upon the testimony and evidence presented, however, it
       appears the trial court took more action to secure
       employment for [Father] than [Father] did himself.
       [Father] testified that he hired a recruiter to “develop a
       brand and a resume.” (N.T., 2/12/2015, at p. 42-43).
       [Father], however, was unable to produce a written
       contract to the trial court with respect to the recruiter and
       the duties associated therewith. [Father] likewise testified
       that he hired someone to manage his Linkedln account and
       that he joined TheLadders.com. (N.T., 2/12/2015, at p.
       42-43). No copies of applications, resumes, nor rejection
       letters were produced from potential employers.
       Furthermore, [Father] offered nothing to substantiate his
       testimony about an “e-mail campaign” by the recruiter
       leaving the trial court without pertinent information, such
       as how many companies were recipients of these e-mails
       purportedly sent on [Father’s] behalf. Given the leeway
       the trial court had afforded [Father] to aid in finding
       employment comparable to his past earnings, [Father’s]

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          testimony failed to demonstrate a good faith attempt.
          Instead, [Father] appeared in court with a meager offer
          letter from a friend with an abysmal salary, for a person of
          his qualifications and background.

                                       *       *    *

          It is unfathomable to this court given [Father’s] past
          earnings, expertise in his area, and ample time afforded to
          him that he cannot find a job that offers in excess of what
          is tantamount to minimum wage. Therefore, the trial court
          was justified in imputing income by averaging the lower of
          his past earnings.

Trial Court Opinion at 9-10 (some capitalization omitted and some commas

added).

       The trial court’s reasoning is sound and does not show an abuse of

discretion. Father complains that he cannot pay the support because he is

now incarcerated for being in contempt for not paying the support and has

no income.1 He, however, has been in control of this situation since he got

laid off from his high-paying job. Although he claims he was trying to find

employment, he could have tried harder or secured a job like the

$30,000.00 per year position he held at the hearing, which would have

provided some income while he was looking for a better job.          Father is

educated, trained in his field, healthy, has a history of high earnings, and

has no childcare responsibilities. The court considered this and used older


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1
  Father was incarcerated at the conclusion of the May 4, 2015 contempt
proceedings for failing to pay support.



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tax returns so as not to reflect the highest possible amount Father could

earn. Father’s second issue merits no relief.2

       In his third issue, Father argues the court erred by failing to afford him

relief from his monthly obligation pursuant to the negotiated terms of the

December 11, 2013 support order. He claims that in exchange for allowing

support payments to start on August 8, 2013 instead of when he received

his severance package on October 31, 2013, “the matter [of reducing his

support] was to be ‘relisted for a Master’s Hearing in early/mid February

2014, in order to calculate/recalculate support from March 7, 2014 forward,

depending on [Father’s] job status as of that date.” Father’s Brief at 14.

       Father has waived this issue of a bargained-for exchange by failing to

raise it in his Pa.R.A.P. 1925(b) statement. See Majorsky v. Douglas, 58

A.3d 1250, 1259 (Pa.Super.2012), appeal denied, 70 A.3d 811 (Pa.2013)

(“failure to raise an issue in a Rule 1925(b) statement ‘shall’ result in waiver

of that issue.”). Further, this issue is meritless for several reasons. First,

Father cannot bargain away the rights of his three children. See Kesler v.

Weniger, 744 A.2d 794, 796 (Pa.Super.2000) (“In Pennsylvania, a parent

cannot bind a child or bargain away that child’s right to support.”) To the
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2
  Further, the trial court did not abuse its discretion in not finding Father’s
incarceration provided grounds for modification of his child support
obligation. See Yerkes v. Yerkes, 824 A.2d 1169, 1177 (Pa.2003) (“Under
the ‘no justification’ rule, it is clear that incarceration, standing alone, is not
a ‘material and substantial change in circumstances’ providing sufficient
grounds for modification or termination of a child support order.”).



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extent Father is arguing the court failed to consider that he was unemployed

for a significant period of time, the trial court considered Father’s

unemployment and found him to be at fault for being unemployed. Further,

the court held his contempt in abeyance several times to help him to secure

employment.

      Accordingly, we affirm the order of February 2, 2012 as it relates to

child support and quash the appeal as it relates to spousal support.

      Order affirmed in part; appeal quashed in part.

      Justice Fitzgerald joins in the memorandum.

      Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




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