J-S01037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIRISA L. GENNOCK                             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

JOHN S. GENNOCK

                         Appellee                 No. 1141 WDA 2014


              Appeal from the Order Entered June 16, 2014
           In the Court of Common Pleas of Lawrence County
 Domestic Relations at No(s): 597 of 2005, D.R., PACSES NO. 876107490


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED APRIL 02, 2015

      Appellant, Kirisa L. Gennock (“Mother”), appeals from the order

entered in the Lawrence County Court of Common Pleas, which granted

Appellee’s, John S. Gennock (“Father”), petition for modification of child

support and suspended Father’s child support payments.      We vacate and

remand for further proceedings.

      The trial court’s opinion sets forth the relevant facts and procedural

history of this case as follows:

         [Mother] and [Father] are the natural parents of two minor
         children. [Mother] initiated a complaint for child support
         on July 15, 2005. At that time, [Mother] was employed as
         a school teacher, and [Father] was a [self-employed]
         contractor. Following a conference, [Father] was assessed
         a monthly support obligation for the two minor children.
         On December 4, 2013, [Father] filed a petition for
         modification of child support, wherein [Father] claimed he
         suffered from a medical disability and is unable to work.
J-S01037-15


        [Father] failed to provide the Office of Domestic Relations
        with sufficient verification of his disability, and his request
        for a reduction in his child [s]upport obligation was
        dismissed. [Father] was directed to continue child support
        payments as directed by the July 14, 2011 Support Order.
        [Father] then filed a timely demand for a hearing before
        [the trial] [c]ourt.

        At the [de novo] [h]earing, [Father] testified as to his
        various forms of past employment. [Father] eventually
        became a self-employed contractor in 2001. In February
        2012, [Father] began to suffer chronic pain and fatigue.
        [Father] stated that he attempted to maintain continuous
        employment, but [Father] was unable to work at the
        capacity required in the construction trade. [Father] has
        continuously undergone medical treatment, but his
        insurance changed following the parties’ divorce in January
        of 2014. Consequently, [Father] had to begin a new
        course of treatment with different physicians. [Father]
        described his inability to complete daily functions and his
        struggles with pain management. [Father] expressed a
        desire to work and various attempts at employment, but
        explained that his severe pain made any efforts futile.

        [Mother] testified that she has observed [Father]
        performing yard work at his girlfriend’s residence.
        [Mother] stated that within weeks of the [de novo]
        [h]earing she saw [Father] operating a Bobcat and
        mending a fence in the back yard. [Mother] believes
        [Father] is able to maintain a full-time job and requests
        [Father] be assessed a monthly earning capacity
        consistent with his prior income.

        Based upon the testimony presented, [the trial] [c]ourt
        entered an [o]rder on June 16, 2014[,] suspending
        [Father’s] child support obligation. From this [o]rder,
        [Mother] filed a timely appeal.

(Trial Court Opinion, filed August 15, 2014, at 2-3).       The court ordered

Mother to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Mother timely complied.


                                     -2-
J-S01037-15


      Mother raises the following issues for our review:

         WHETHER THE TRIAL COURT ERRED IN FINDING THAT
         [FATHER] WAS UNEMPLOYED AND THEREFORE LACKS
         SUFFICIENT INCOME TO ASSESS A CHILD SUPPORT
         ORDER FOR THE BENEFIT OF THE PARTIES’ MINOR
         CHILDREN?

         WHETHER THE TRIAL COURT ERRED IN FINDING [FATHER]
         WAS NOT SELF-EMPLOYED?

         WHETHER THE TRIAL COURT ERRED IN DETERMINING
         [FATHER] WAS UNABLE TO WORK DUE TO REASONS
         OTHER THAN MEDICAL REASONS?

(Mother’s Brief at 4).

      In her issues combined, Mother argues Father willfully failed to obtain

or maintain appropriate employment. Mother claims Father is able to work

but chooses not to; and he failed to produce any medical evidence that he is

unable to work. Mother maintains the court unreasonably determined Father

lacked sufficient income to pay child support because he was unemployed,

and the court should have imputed an earning capacity to Father. Mother

concludes this Court should vacate and remand for a hearing to determine

Father’s proper earning capacity and child support obligation. We agree.

      The well-settled standard of review in a child support case provides:

         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

                                    -3-
J-S01037-15


          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.

Silver v. Pinskey, 981 A.2d 284, 291 (Pa.Super. 2009) (en banc) (quoting

Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)). Additionally, “[t]he

fact-finder is entitled to weigh the evidence presented and assess its

credibility[.]”   Samii v. Samii, 847 A.2d 691, 697 (Pa.Super. 2004)

(quoting Green v. Green, 783 A.2d 788, 790 (Pa.Super. 2001), appeal

denied, 569 Pa. 707, 805 A.2d 524 (2002)).

      In most cases, child support is awarded pursuant to a statewide

guideline as follows:

          § 4322. Support guideline

              (a) Statewide       guideline.―Child     and   spousal
          support shall be awarded pursuant to a Statewide
          guideline as established by general rule by the Supreme
          Court, so that persons similarly situated shall be treated
          similarly.   The guideline shall be based upon the
          reasonable needs of the child or spouse seeking support
          and the ability of the obligor to provide support. In
          determining the reasonable needs of the child or spouse
          seeking support and the ability of the obligor to provide
          support, the guideline shall place primary emphasis on the
          net incomes and earning capacities of the parties, with
          allowable deviations for unusual needs, extraordinary
          expenses and other factors, such as the parties’ assets, as
          warrant special attention. The guideline so developed shall
          be reviewed at least once every four years.

23 Pa.C.S.A. § 4322(a). Well-established law makes clear both parents are

responsible for the support of their children. Sammi, supra at 696 (citation


                                      -4-
J-S01037-15


omitted). Significantly, “[t]he determination of a parent’s ability to provide

child support is based upon the parent’s earning capacity rather than the

parent’s actual earnings.”   Id. (quoting Laws v. Laws, 758 A.2d 1226,

1229 (Pa.Super. 2000)). “Where a party voluntarily assumes a lower paying

job, there generally will be no effect on the support obligation.    Where a

party willfully fails to obtain appropriate employment, his…income will be

considered to be equal to his…earning capacity.”     Portugal v. Portugal,

798 A.2d 246, 250 (Pa.Super. 2002) (citing Kersey v. Jefferson, 791 A.2d

419 (Pa.Super. 2002)) (internal citations and quotation marks omitted).

Earning capacity is the amount that a person could realistically earn under

the circumstances, not the amount which a person could theoretically earn.

Gephart v. Gephart, 764 A.2d 613, 615 (Pa.Super. 2000).                 “Age,

education, training, health, work experience, earnings history and child care

responsibilities are factors which shall be considered in determining earning

capacity.” Pa.R.C.P. 1910.16-2(d)(4). Further, the trial court must conduct

a full inquiry before making a factual determination about a party’s earning

capacity. See Haselrig v. Haselrig, 840 A.2d 338 (Pa.Super. 2003).

      “When a party seeks to modify a child support order, the moving party

has the burden of proving by competent evidence that a material and

substantial change of circumstances has occurred since the entry of the

original or modified support order.”   Soncini v. Soncini, 612 A.2d 998,

1000 (Pa.Super. 1992) (citation omitted). “[C]hanged circumstances include


                                    -5-
J-S01037-15


proof of an increase in expenditures for litigants’ children, along with other

facts which could demonstrate that a previous support order should be

reconsidered.”   Farabaugh v. Killen, 648 A.2d 60, 62 (Pa.Super. 1994)

(citation omitted).   “The change in circumstances must be ‘permanent,’

meaning it is irreversible and indefinite in duration.”            Crawford v.

Crawford, 633 A.2d 155, 164 (Pa.Super. 1993) (citation omitted).

      “The lower court must consider all pertinent circumstances and base

its decision upon facts appearing in the record which indicate that the

moving party did or did not meet the burden of proof as to changed

conditions.” Sammi, supra at 695 (citation omitted). “[W]here the moving

party’s burden of proof has not been met, an abuse of discretion will be

found.”   Crawford, supra (citation omitted).    See Kimock v. Jones, 47

A.3d 850, 857 (Pa.Super. 2012) (holding father’s failure to provide trial

court with any variation in his finances or child’s needs, which would affect

his ability to pay support, did not constitute material and substantial change

in circumstances); Soncini, supra (holding father failed to show material

and substantial change of circumstances because record failed to support

father’s claims of decreased earnings and increased expenses).

      Compare     Farabaugh,     supra    (holding   substantial    increase   in

expenditures for children, including tutoring for learning disability and

substantial orthodontic work, along with necessary household expenses,

constituted   material   and    substantial   change     in   circumstances);


                                    -6-
J-S01037-15


Commonwealth ex rel. Sladek v. Sladek, 563 A.2d 172, 175 (Pa.Super.

1989) (holding specific increase in cost of living, which affects expenditures

on children, constituted change of circumstances under Rule 1910.19(a));

Hesidenz v. Carbin, 512 A.2d 707, 712 (Pa.Super. 1986) (holding

appellant produced sufficient evidence to demonstrate substantial change in

circumstances by introducing doctor’s deposition testimony, which detailed

Appellant’s deteriorating health due to symptoms of coronary artery disease

after birth of second child, and doctor’s recommendation led to appellant’s

decision to terminate part-time employment).

      Instantly, at the de novo hearing, Father testified that he was a self-

employed contractor from 2001 until February 2012, when he was suddenly

unable to get out of bed for two weeks. (N.T., 6/3/14, at 10-12). Father

testified he continues to suffer from severe pain in various parts of his body,

which prevents him from completing the daily functions of an employee or

general contractor. Id. at 14-15. Father also testified he has been treating

with several physicians since February 2012; however, he was forced to

obtain new physicians in January 2014, after a change in medical insurance.

Id. at 16-17. Father testified he attempted to perform contracting work in

the six months prior to the hearing, but he was able to work only twenty-five

percent of the time he used to work. Id. at 17-18, 19-20. Nevertheless,

Father testified he reached a point in October 2014, where he could no

longer work at all. Id. at 21. Additionally, Mother testified at the hearing


                                     -7-
J-S01037-15


that she saw Father working in the yard of his home one week prior to the

hearing.   Id. at 36-38.   Mother also introduced three photographs of an

individual she claimed was Father performing various contracting work in the

yard. Id. at 36-41.

      Father’s testimony was his only evidence.       There is nothing in the

record to prove Father’s total disability except his testimony. Father did not

present any medical or other documentary evidence, any witnesses, or any

physical evidence of his total disability. Therefore, Father failed to introduce

any substantiating evidence to support his self-proclaimed total disability.

Notwithstanding Father’s testimony, Father did not meet his burden of proof

to show a material and substantial change of circumstances. See Soncini,

supra.     Thus, the court’s decision to suspend Father’s child support

payments was in error. See Crawford, supra; Silver, supra. Accordingly,

we vacate the trial court’s order and remand for a new hearing so Father can

present admissible corroborating evidence of a change in circumstances

regarding earning capacity to justify relief from child support.

      Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.



Judgment Entered.




                                     -8-
J-S01037-15


Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2015




                          -9-
