J. A20002/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

NICOLE MASTER,                          :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :       No. 3585 EDA 2013
                                        :
JEFFREY MASTER                          :


             Appeal from the Order Entered November 15, 2013,
           in the Court of Common Pleas of Northhampton County
               Domestic Relations Division at No. DR-0052413


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED NOVEMBER 17, 2014

     Nicole Master (“Mother”) appeals from the child support order entered

on November 15, 2013, in the Court of Common Pleas of Northampton

County following a de novo hearing in this matter. Upon review, we affirm

in part, reverse in part, and remand.

     The facts and procedural history of this appeal may be summarized as

follows. Mother and Jeffrey Master (“Father”) were married on October 16,

1999. Two children were born of the marriage. At the time of this appeal,

the children were 10 and 5 years old. The parties separated on January 19,

2013. Mother is a college graduate with a bachelor’s degree in elementary

education. Mother is employed as a manager at a daycare center. Father is

a heavy equipment construction operator and is a union member.
J. A20002/14


     Mother filed a complaint in support on April 26, 2013. At a conference

on June 18, 2013, it was determined that Mother had an annual income of

$17,472 which was based on her semi-monthly salary of $728.            Father’s

annual income was based on an average monthly gross of $4,530 taken

from his W2s and unemployment compensation on his 2012 federal income

tax return.   At the conclusion of the hearing on June 18th, an order was

entered awarding Mother support payments in the amount of $1,754 per

month.   The monthly support was allocated $1,120 for two children, $342

for spousal support, and $292 for arrears.    Mother filed objections to the

June 18th order, and a de novo hearing was held on October 30, 2013. On

November 15, 2013, an order was entered directing Father to pay support in

the amount of $1,072 per month, allocated as $975 for the support of the

two children and $97 per month in arrears, effective April 26, 2013.

     The November 15, 2013 order assessed Father, as an experienced

construction equipment operator, an annual income of $51,950.          The trial

court used the Pennsylvania Occupational Wage Survey to arrive at this

figure. Mother was assessed an income of $43,500 based upon an earning

capacity as an entry level elementary school teacher. The order also took

into account Mother’s child care expenses and included a ten percent upward

deviation from the guideline award of $336 per month as Father was unable

to document his purported living expenses.




                                    -2-
J. A20002/14


      Mother filed a timely notice of appeal on December 13, 2013, and

complied with the trial court’s order to file a statement of errors complained

of on appeal. Mother raises two issues:

            A.    DID THE TRIAL COURT COMMIT AN ABUSE OF
                  DISCRETION I[N] ASSESSING THE APPELLANT,
                  THE SUPPORT OBLIGEE, WITH AN EARNING
                  CAPACITY EQUIVALENT TO AN ENTRY LEVEL
                  ELEMENTARY SCHOOL TEACHER?

            B.    DID THE TRIAL COURT COMMIT AN ABUSE OF
                  DISCRETION IN ASSESSING THE APPELLEE,
                  THE SUPPORT OBLIGOR, WITH AN EARNING
                  CAPACITY FROM THE OCCUPATIONAL WAGE
                  SURVEY AS OPPOSED TO USING THE
                  APPELLEE’S ACTUAL WAGES?

Mother’s brief at 5.

      Our standard and scope of review for an order of child support is well

established:

            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, 854 (Pa.Super. 2012).




                                     -3-
J. A20002/14


      Both of Mother’s issues challenge the trial court’s determination of

earning capacity for her and Father.     “Child and spousal support ‘shall be

awarded pursuant to statewide guidelines.’ In determining the ability of an

obligor to provide support, the guidelines ‘place primary emphasis on the net

incomes and earning capacities of the parties[.]’” Mackay v. Mackay, 984

A.2d 529, 537 (Pa.Super. 2009), appeal denied, 995 A.2d 354 (Pa. 2010),

citing 23 Pa.C.S.A. § 4322(a).

      Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4) addresses

earning capacity as follows:

            (4)   Earning Capacity.          If the trier 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. 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.




                                     -4-
J. A20002/14


Pa.R.C.P. 1910.16-2(d)(4) (emphasis added).         We have defined earning

capacity as “that amount which the person could realistically earn under the

circumstances, considering his or her age, health, mental and physical

condition and training.”    Mackay, 984 A.2d at 537, citing Gephart v.

Gephart, 764 A.2d 613, 615 (Pa.Super. 2000). Additionally, we note that

the trial court, as the finder-of-fact, is entitled to weigh the evidence and

assess the credibility of witnesses. Krankowski v. O’Neil, 928 A.2d 284,

287 (Pa.Super. 2007)

      In her first issue, Mother argues the trial court erred in assessing her

an earning capacity equivalent to an entry level elementary school teacher.

Our review of the record indicates the de novo hearing was held following

Mother’s objection to the June 18, 2013 order.       After a continuance, the

hearing was held on October 30, 2013.         Father was the only person to

testify.   At the conclusion of Father’s testimony, the trial court asked

Father’s counsel if he had anything he wanted to present.              (Notes of

testimony, 10/30/13 at 59.) He responded:

            [Father’s counsel]: The only issue I would like to
            present, which I believe the record has already been
            made at the conference and is part of the order, and
            that is that we are going to assess [Father]
            something, which is what [Mother’s counsel] wants
            to do, on a full-time basis, which I don’t believe is at
            all realistic, given union employment.

                 Then, [Mother] should as well be assessed at a
            much higher earning capacity, because she has a
            bachelor’s degree in elementary education and she
            works at a daycare. And as she told the conference


                                     -5-
J. A20002/14


             officer she has no intention of pursuing any type of
             teaching position.

Id. at 59-60.    The trial court proceeded to enter its November 15, 2013

order based upon an earnings assessment of $43,500 per year1 to Mother as

an entry level elementary school teacher in Northampton County. The prior

order of June 18, 2013, was based on Mother’s salary of $17,472 per year

which she earns as daycare manager.

        Based on this record, we must conclude that it does not support the

trial court’s determination.   It appears the trial court’s main consideration

was “that Mother was not earning income at the peak of her capacity.”

(Trial court opinion, 2/11/14 at 7.)     There was no testimony presented

regarding Mother’s age or when she completed her education. There was no

testimony regarding her work experience other than her current job as a

daycare manager.       While the trial court determined Mother could be

employed as an entry level elementary school teacher, the record is bare as

to whether Mother has the required teacher’s certification for such

employment. Also, there was no evidence presented regarding employment

opportunities for elementary school teachers in the Northampton County

area.    Accordingly, we are constrained to vacate this portion of the trial

court’s order and remand.      See Glover v. Severino, 946 A.2d 710, 712




1
  The trial court used the Pennsylvania Occupational Wage Survey to arrive
at this number.


                                     -6-
J. A20002/14


(Pa.Super. 2008) (“An abuse of discretion exists if . . . there is insufficient

evidence to sustain the order.”).

        Next, we address Mother’s second issue in which she argues the trial

court erred when it assessed Father an earning capacity of $51,950 per

year.     The June 18, 2013 order utilized a yearly income of $54,360 for

Father.    This figure was reached by using Father’s 2012 income from the

parties’ 2012 federal income tax return. This income included employment

income and unemployment compensation totaling $4,530 per month.

($54,360 = $4,530 x 12). The trial court used an annual income of $51,950

in the November 15, 2013 order. This figure was based on the Northampton

County     Occupational   Wage   Survey    for   an   experienced   construction

equipment operator. Mother asserts an annual income of $87,360 ($42 per

hour x 40 hours per week x 52 weeks per year) for Father was more

realistic. The record, however, refutes Mother’s assertion.

        At the October 30, 2013 hearing, Father testified that for the past

14 years, he has been employed as a heavy equipment operator through a

union hall in New Jersey. (Notes of testimony, 10/30/13 at 5, 21.) Father is

not permitted to accept non-union employment. (Id. at 5.) As of June 18,

2013, Father testified he had only worked seven weeks for the entire year of

2013. (Id. at 10.) Father’s employment is somewhat seasonal; he works

less in the winter than he does when it is warmer. (Id. at 6.)




                                     -7-
J. A20002/14


     Father testified that he is able to operate excavators, bulldozers,

backhoes, and front loaders. (Id. at 22.) There is a difference in pay rate

depending on the type of equipment he operates. (Id. at 22-23.) The rate

for operating an excavator is $42 per hour while the rate to run a bulldozer

is $38.   (Id. at 23.)   Father testified he was exploring the possibility of

transferring his union book from New Jersey to the Lehigh Valley in order to

obtain a job with a local company, but he would be paid $10 less per hour.

(Id. at 24.) However, Father indicated this local company could provide him

with steady work through the winter. (Id. at 26.)

     Clearly, the trial court found Father’s testimony credible concerning his

ability to find work.    Father’s employment depends on the construction

industry and the need for equipment operators.2 We find no error or abuse

of discretion with the trial court’s assessment of an earning capacity of

$51,950 to Father. If Father obtains a new steady job in the Lehigh Valley

in the future, Mother has the ability to file a petition for modification.

However, at this time, there is nothing to indicate there is employment for

Father for 52 weeks per year at $42 per hour.

     Accordingly, that part of the trial court’s order regarding Mother’s

earning capacity is reversed.     The trial court should proceed to hear

evidence regarding Mother’s age, employment history, whether she has a



2
  To call Father’s work “seasonal” is most likely incorrect.       As Father
testified, he is able to work in the winter.


                                    -8-
J. A20002/14


teaching certification, and the availability of teaching jobs in Northampton

County and decide whether an earning capacity should be assigned to

Mother or whether her annual salary is the correct income for support

purposes.   That part of the trial court’s order concerning Father’s earning

capacity is affirmed.

      Order reversed in part, affirmed in part, and remanded for the taking

of additional evidence. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2014




                                     -9-
