J-A23012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHEENA BAKER,                            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellant              :
                                         :
           v.                            :
                                         :
DOUGLAS BAKER,                           :
                                         :
                  Appellee               :              No. 852 WDA 2014

                     Appeal from the Order May 12, 2014
              in the Court of Common Pleas of Venango County,
              Domestic Relations Division, D.R. No. 24 of 2012;
                           PACSES No. 320113017

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 23, 2015

     Sheena Baker (“Mother”) appeals from the Order of the trial court

assigning to Douglas Baker (“Father”) a net income of $1,000.00 per month,

and requiring Father to pay child support in the amount of $133.00 per

month from February 2013 through July 2013, and after applying an

amendment to the support guidelines, requiring Father to pay $62.00 per

month from August 2013 forward. We affirm.

     Mother and Father married on August 19, 2006. The parties have one

son (“Child”), who was born on in October 2007.           Mother and Father

separated on August 20, 2011, after which Child resided with Mother. The

trial court entered a divorce Decree in January 2013.

     While the parties were separated, Mother filed a Complaint for child

support. On February 14, 2012, the parties reached an agreement whereby
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Father would pay child support in the amount of $400.00 per month,

beginning that same date.       The trial court entered an Order reflecting the

parties’ agreement.

      On February 6, 2013, Father filed a Petition to modify the February

2012 support Order. In his Petition, Father alleged the following:

      [Father] requests [that] the monthly child support amount be
      reviewed as he is no longer responsible to pay [Mother]
      insurance on his business garage that was calculated into the
      current court[-]ordered support total.

Petition for Modification, 2/6/13, ¶ 2.

      Ultimately, the matter proceeded to a hearing before a Domestic

Relations hearing officer (the “Hearing Officer”).        After a hearing, the

Hearing Officer assigned to Father a monthly net income of $1,905.40.

Hearing Officer Report and Recommendation, 6/27/13, at 4.            In doing so,

the Hearing Officer explained that “[Father] is self-employed as a mechanic.

His 2012 tax return shows net income for the year of $265.00.              This is

unreasonable.    He did receive lease income in prior years[,] but does not

now   have    that   income.”     Id.     Consequently,   the    Hearing   Officer

recommended that Father pay $465.59 per month in child support. Id.

      Father filed Exceptions to the Report and Recommendation of the

Hearing Officer. After argument on the Exceptions, the trial court entered

an Order remanding the matter to the Hearing Officer.           Trial Court Order,

9/11/13, at 1.       The trial court directed the Hearing Officer to conduct




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another hearing, and “thereafter specifically indicate how he arrives at any

wage that he assigns to [Father].” Id.

      After a hearing on remand, the Hearing Officer, crediting Mother’s

testimony, found that “a qualified auto mechanic with [Father’s] experience

should be capable of earning at least $15.00 per hour.”       Interim Order,

11/7/13. The Hearing Officer issued the following explanation in support of

this finding:

      As to the determination of [Father’s] earning capacity, the
      [H]earing [O]fficer is disregarding [Father’s] actual earnings[,]
      as evidenced by his tax returns and his testimony concerning his
      eligibility for public benefits. … The [H]earing [O]fficer finds
      credible the testimony of the conference officer who investigated
      the issue of earning capacity resulting in [Mother’s] Exhibit A.
      [Father] has been in business for a number of years and should
      have acquired the tools and experience necessary to justify a
      finding of an earning capacity of $15.00 per hour.            The
      reasonableness of an earning capacity of $15.00 per hour was
      also supported by the testimony of a witness experienced in the
      management of an automobile repair shop including the rates of
      pay of various experienced mechanics.

Id. at 2.

      Father timely filed Exceptions.    After oral argument, the trial court

concluded that the Hearing Officer had erred in assigning a wage to Father.

Child Support Order, 2/28/14, at 1. The trial court reasoned that Father had

worked in his present position, as a self-employed mechanic, for eight or

nine years. Id. The trial court additionally offered the following rationale

for not adopting the findings of the Hearing Officer:




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      It is clear from the evidence that [Father] was working in the
      capacity as a self-employed auto-mechanic while the parties
      resided together ….

      The court hereby finds that [Father] did not change positions
      and did not seek out a lower paying position to frustrate the
      purposes of the obligation of child support or to frustrate
      [Mother] from obtaining child support from [Father]. [Father]
      was merely working in the same capacity he had been working in
      all along and while the parties were together….

Id. at 2.    The trial court again remanded the matter and directed the

Hearing Officer to calculate Father’s support obligation, based upon Father’s

income “as submitted during the prior hearings[,] and said obligation shall

be retroactive to the original hearing to adjust child support.”      Id. at 3.

      However, upon the Motion of Mother, the trial court entered a final

Order finding Father’s net monthly income to be $1,000. Trial Court Order,

4/29/14, at 1. The trial court’s Order calculated Father’s support obligation,

from February 2013 through July 2013, to be $133.00 per month, and from

August 2013 forward to be $62 per month. Mother filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Mother now presents the following claim for our review:

      Did the [trial] court err as a matter of law or abuse its discretion
      in rejecting the determination of the [Hearing Officer] that []
      Father has an earning capacity of $15 per hour[,] and otherwise
      err in determining that his monthly net income is only $1,000?

Brief for Appellant at 2.




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      Mother argues that, by statute, “the [child support] guidelines shall

place primary emphasis on the net incomes and earning capacities of the

parties.”   42 Pa.C.S.A. § 4322(a) (emphasis omitted).     Mother directs our

attention to Pennsylvania Rule of Civil Procedure 1910.16-2(d), and argues

that, “[a]lthough 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.” Brief for Appellant at 5 (emphasis

omitted) (quoting Mencer v. Ruch, 928 A.2d 294, 299 (Pa. Super. 2007).

According to Mother, there is an obvious “divergence” between Father’s

asserted annual income and “what he is realistically capable of earning as an

experienced, trained, licensed, certified auto mechanic.” Brief for Appellant

at 5. Mother directs our attention to Father’s testimony regarding his age,

education, work experience and certifications.     Id. at 6.   Mother further

directs our attention to evidence regarding local wage rates for auto

mechanics and mechanics with Father’s qualifications. Id.

      Mother also contends that the trial court erred when it relied upon this

Court’s decision in Dennis v. Whitney, 844 A.2d 1267 (Pa. Super. 2004),

arguing that the Dennis case is distinguishable. Brief for Appellant at 7. In

Dennis, Mother asserts, although the father had a bachelor’s degree as an

agricultural engineer, he had not worked in that field and there were no jobs

available in that field. Id. at 7.    Mother asserts that in Dennis, unlike in




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the instant case, the court addressed whether the father should be forced to

stop working on the family farm to pursue non-existent work. Id.

      Finally, Mother takes issue with the trial court’s rejection of the

findings of the Hearing Officer. Id. Mother asserts that in Dennis, unlike in

the instant case, the trial court heard the evidence de novo, rather than

merely reviewing the findings of the Hearing Officer. Id. Mother disputes

the trial court’s finding that Father is “doing the best he can,” arguing that

“[t]here is nothing to support this conclusion, which was made without the

benefit of having been the trier of fact.” Id.

      “In reviewing a support order, we are limited to considering whether[,]

based on clear and convincing evidence[,] the trial court abused its

discretion.” Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006).

      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.

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

omitted).

      Generally, the amount of support to be awarded is based upon the

parties’ monthly net income. Pa.R.C.P. 1910.16-2. However, “[i]f the trier


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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.”               Pa.R.C.P.

1910.16-2(d)(4).

       Age, education, training, health, work experience, earnings
       history and child care responsibilities are factors which shall be
       considered in determining earning capacity. 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. 1910.16-2(d)(4); see also Gephart v. Gephart, 764 A.2d 613,

614-15 (Pa. Super. 2000) (explaining that 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).

       A party may not voluntarily reduce his or her income in an attempt to

circumvent a support obligation.          Woskob v. Woskob, 843 A.2d 1247,

1253-54 (Pa. Super. 2004).        However, 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,



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the trial court does not abuse its discretion in calculating earning capacity

based upon the lower paying job. Dennis, 844 A.2d at 1270.

      In Dennis, the mother sought to have the father held to a higher

earning capacity, because the father had a Bachelor of Arts degree in

Agricultural Engineering. Id. at 1268. The trial court declined to assign a

higher earning capacity to father.      Id.   On appeal, this Court affirmed,

observing that

      [the f]ather did not voluntarily reduce his income by accepting a
      lower paying position, nor did he accept a lower paying job in
      the face of more lucrative opportunities. The evidence of record
      established that [the f]ather had been in his present position
      since approximately nine years prior to the birth of his child. In
      addition, the evidence established that the [f]ather had never
      worked as an agricultural engineer. Finally, the [f]ather testified
      at the hearing that there are no jobs in the field of agricultural
      engineering in the vicinity of Erie....

Id. at 1270. This Court further discerned no abuse of discretion, where the

trial court found that the father had not willfully failed to obtain appropriate

employment in order to frustrate the mother’s attempts to receive adequate

support, or that the father had only recently “began this vocation to lower

his support payments.” Id.

      In the instant case, Father presented evidence that he has children,

ages fourteen and eight years old, with Kathryn Lynch (“Lynch”).            N.T.,

10/22/13, at 10. Although there is no child support order or agreement with

regard to these children, Lynch testified that Father provides support in the

form of co-payments for insurance, and the purchase of prescription drugs



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and all school clothing, totaling about $100 per month.     Id. at 10, 12.

According to Lynch, she and Father split custody of the children, with each

parent having the children every other week. Id. at 10.

     Father also presented evidence that he and Jennifer Porter (“Porter”)

currently share a residence, and together, they qualify for assistance from

Pennsylvania’s Department of Public Welfare. Id. at 13. Father presented

his application for public welfare assistance, which stated that Father

received gross wages of $1,231.25 per month. Id. Father also testified that

his monthly gross income is approximately $1,200 per month.      Id. at 16.

However, Father further testified that he uses some of his gross earnings to

pay business expenses for his automobile repair business, the Rage

Automotive Shop.    Id. According to Father, his gross income barely pays

the expenses for his business. Id. at 32.

     Father further testified as to his certifications for advanced engine

repair, as well as for chassis, brakes and air-conditioning work. Id. at 25.

Father stated that he has never worked for an automobile dealership or for

any other garage. Id. In explaining why he did not seek other, full-time

employment, Father testified as follows:

            I do have other medical conditions that would prohibit me
     from doing other heavy physical labor, I mean, when I was 17[,]
     I had a car accident, broke my back in six places, my hip in
     three places, my jaw, I was paralyzed and so forth, so I do have
     limitations. So by being self[-]employed[,] I can pace myself at
     the speed I need to be.




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Id. at 33. Father also explained that the time he is actually able to bill an

hourly rate varies. Id. According to Father, “[i]t varies a lot, by the time

you deal with the customers during the day, you call the parts stores and

wait for the deliveries and so forth, … even though you were there for eight

hours[,] you may only work three hours a day on a car….” Id. at 34. As a

result, Father explained, he may only bill about 10 hours per week at $35.00

per hour. Id. Although Mother presented evidence that Father could earn

more elsewhere, the trial court found that Father did not willfully fail to

obtain or maintain appropriate employment.        See Trial Court Opinion,

8/20/14, at 3.

      This Court has held that the “credibility to be assigned the parties’

testimony and supporting exhibits lies initially with the hearing officer and

the trial court.”   Sirio v. Sirio, 951 A.2d 1188, 1195 (Pa. Super. 2008).

Although the trial court’s scope of review is limited to evidence received by

the hearing officer, the trial court is obligated to conduct a complete and

independent review of the evidence when ruling on exceptions. Id. at 1196;

see also Cunningham v. Cunningham, 548 A.2d 611, 613-14 (Pa. Super.

1988).

      Here, the trial court determined that “Father did not actively do

anything to alter his earnings or to frustrate the system[,]” and “simply

continued to work in the same position that he had been working all along.”

Trial Court Opinion, 8/20/14, at 3; see also Dennis, 844 A.2d at 1270.



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Because the record supports the trial court’s findings, and there is no clear

and convincing evidence that the court abused its discretion, we cannot

grant Mother relief on her claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2015




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