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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LORRAINE McCALL                         :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
LANCE A. THORNTON,                      :          No. 535 WDA 2016
                                        :
                       Appellant        :


            Appeal from the Order Entered March 21, 2016,
             in the Court of Common Pleas of Erie County
        Domestic Relations Division at Nos. NS201301113/PASCES
                             No. 486114105


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 22, 2016

     Lance A. Thornton appeals the March 21, 2016 order of the Court of

Common Pleas of Erie County that made final the January 19, 2016 interim

order of the Domestic Relations Section of the Court of Common Pleas of

Erie County.

     The trial court set forth the following factual and procedural history:

                 On April 15, 2014, this Court assessed
           [appellant] with a monthly net earning capacity of
           $6,871.42.     The assessment was based upon
           [appellant’s] prior employment with STNA and was
           the same earning capacity set for [appellant] on
           January 8, 2013 at PACSES Case 630109800. As
           previously explained:

                 [Appellant] did     not challenge the
                 $115,000.00         earning    capacity

* Retired Senior Judge assigned to the Superior Court.
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               assessment      in  January    of    2013.
               Furthermore, [appellant’s] circumstances
               have not changed since January of 2013.
               He owns and operates RainEater now, as
               he did then.         RainEater allegedly
               operated at a loss in excess of $100,000
               then as it allegedly does now. The only
               thing which has changed is that
               [appellant], inconsistent with his position
               of lack of income, is now building a
               $328,105.00 home. In sum, in early
               2013      [appellant]     accepted       an
               assessment of [a] $115,000.00 annual
               earning capacity, yet by the end of the
               year he wanted the Court to believe that
               he was incapable of such income, even
               though his circumstances had not
               changed and he was capable of building
               a $328,105.00 home.

          See Opinion, June 24, 2014 at 5-6. The Superior
          Court of Pennsylvania, by a December 3, 2014
          Memorandum Opinion, affirmed the April 15, 2014
          Order. See 790 WDA 2014.

                Relevant to the present appeal, the Domestic
          Relations Section, on November 24, 2015, directed
          the parties to appear for a modification conference.
          Following the January 14, 2016 conference, at which
          both parties appeared, a January 19, 2016 Interim
          Order issued maintaining the parties’ monthly net
          incomes from the April 15, 2014 Order, but reducing
          [appellant’s] child support obligation based upon a
          new custody arrangement. Specifically, the Interim
          Order set forth as follows:

               Recommending      Order    modified  to
               $760/mo support for 1 child, Kendall
               effective 1/6/16 date of Custody Order.
               Order calculated based on defendant’s
               income     assessment    remaining   at
               $115,000/yrly in accordance with prior
               ruling by the Superior Ct. Plaintiff
               assessed total 2015 earnings plus


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                  additional     earning     capacity     of
                  $6,344/yrly     based   on     full  time
                  employment @ $9/per hr based on her
                  age, education and current hourly pay.
                  Order takes into account a split custody
                  counterclaim and grants a downward
                  deviation based on defendant’s cost of
                  health insurance for child in his home.
                  Order    to   automatically reduce      to
                  $600/mo eff 2/1/16 to recoup an
                  overpayment of $2,720 and shall remain
                  for period of 17/mo. Effective 8/1/17
                  Order     automatically   reinstated    to
                  $760/mo.      This temporary Order to
                  become final in twenty days unless a
                  demand for hearing is filed within the
                  said twenty days.

                   [Appellant] filed a Demand for Court Hearing.
            On March 9, 2016, this Court presided over the
            de novo hearing. In addition to the testimony and
            evidence presented at the hearing, the Court
            requested, without objection from either party, that
            [appellant] provide to the Court all documents,
            filings and financial documents associated with the
            transfer of [appellant’s] business, RainEater LLC, to
            newly created Erie Automotive Aftermarket Holdings,
            Inc. On March 21, 2016, this Court entered its Order
            making the January 19, 2016 Order a final order.

Trial court opinion, 6/6/16 at 1-3.

      Appellant raises the following issue for this court’s review: “The trial

court erred and abused it’s [sic] discretion in assessing the appellant’s

income at $6,871.42 a month and not assessing his income at a level

consistent with income taxes and pay records.” (Appellant’s brief at 6.)

      When reviewing a child support order, we employ the following

standard of review:



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            [T]his 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.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (citations omitted). A

finding of an abuse of discretion must rest upon a showing by clear and

convincing evidence, and the trial court will be upheld on any valid ground.

Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super. 2005). Additionally, the

fact-finder, having heard the witnesses, is entitled to weigh the evidence and

assess its credibility. Id. at 1245.

      A court may modify a support order when the party who seeks

modification shows a substantial and material change in circumstances since

the last order was entered. See Pa.C.S.A. § 4352(a); see also Summers

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

      Appellant complains that the trial court erred when it assessed his

earning capacity based on a job that he held years ago and ignored all

evidence that his current company is going through hard times and his

income is diminished. He concedes that when he worked for NASCAR and

STNA, he made a high income. However, when he lost his job at STNA when

his division was sold, he started his own company, RainEater.         Appellant


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further asserts that RainEater filed for bankruptcy.     He was able to keep

RainEater going but could not make it grow. He then transferred his shares

to a group of investors and became an employee with a 45% ownership

stake. At the hearing before the trial court, appellant presented pay stubs to

demonstrate    that   he   earns a gross bi-weekly salary of $2,667.24.

Brian Hickey, the controller for the new company, testified that appellant

does not have access to company funds and that the company was operating

at a loss. According to appellant, the trial court abused its discretion when it

determined that appellant failed to show any material or substantial change

of circumstances since the April 15, 2014 order.

      The trial court explained its determination:

            The Court remains unconvinced, however, that
            [appellant’s] reported earnings present an accurate
            picture of his actual income in connection with his
            business interests.

                   As Brian Hickey testified, Erie Automotive
            Aftermarket Holdings, Inc. was created for the
            purpose of overtaking RainEater. While RainEater
            was restructured, [appellant] clearly remains more
            than just an employee.       First, inconsistent with
            [appellant’s] testimony of a 45% interest in Erie
            Automotive Aftermarket Holdings, Inc., both the
            Form 2553 Election by a Small Business Corporation
            for Erie Automotive Aftermarket Holdings, Inc. and
            the minutes from the October 1, 2015 Organizational
            Meeting of Shareholders and Board of Directors
            indicate that [appellant] is an 82% shareholder of
            Erie    Automotive    Aftermarket     Holdings,  Inc.
            Moreover, while [appellant] allegedly reports to
            Jeff Fatica, who is the CEO, Jeff Fatica holds only
            4% ownership in the Company and he and all other
            officers of Erie Automotive Aftermarket Holdings,


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            Inc. serve at the pleasure and under the direction
            and control of the Board of Directors. See Exhibit 7,
            Bylaws of Erie Automotive Aftermarket Holdings,
            Inc.; see also Erie Automotive Aftermarket Holdings,
            Inc[.], Organizational Meeting minutes, October 1,
            2015. Meanwhile, [appellant] is one of only five
            voting members of the Board of Directors of Erie
            Automotive Aftermarket Holdings, Inc.          See Erie
            Automotive       Aftermarket       Holdings,     Inc[.],
            Organizational Meeting minutes, October 1, 2015.
            Furthermore, [appellant] admitted in his March 2016
            testimony that, despite his lack of a formal
            leadership role in Erie Automotive Aftermarket
            Holdings, Inc., the employees of the company look
            up to him for guidance. This is clear as Brian Hickey,
            who was [appellant’s] only other witness and
            supposedly serves as the Controller for the new
            company, lacked any knowledge about ownership
            interests in the company. Mr. Hickey attempted to
            explain his lack of insight as his role serving more of
            the day to day operations and employee payroll type
            of issues, yet [appellant] even had to correct
            Mr. Hickey on how payment for employee insurance
            works. In that regard, the Court is not convinced
            that [appellant] is merely an employee of Erie
            Automotive Aftermarket Holdings, Inc. with only
            $50,000 in income.

                  Accordingly, while the structure of [appellant’s]
            business may have changed, the Court is not
            convinced that it has changed in a manner which
            changed [appellant’s] income. [Appellant] has not
            been forthright regarding his interest and role with
            the business, continuing the appearance that his
            actual income is sheltered.         In that regard,
            [appellant] failed to prove a material and substantial
            change of circumstances since entry of the April 15,
            2014 Order.

Trial court opinion, 6/6/16 at 4-5.

      Essentially, the trial court failed to find appellant credible.            As

fact-finder, that is the trial court’s prerogative. It is not the role of this court


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to reweigh the evidence and make its own credibility determinations. See

Habjan v. Habjan, 73 A.3d 630, 644 (Pa.Super. 2013). Further, the trial

court’s conclusion that appellant owned 82% of Erie Aftermarket Holdings,

Inc., was supported by the evidence in the record. Because appellant was

not found credible, he failed to meet his burden of proof. Here, appellant

has failed to establish that the trial court abused its discretion when it

adopted the interim order as final.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016




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