J-A23027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIC J. PIKIEWICZ,                              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

MICHELE L. TIMMERS,

                          Appellee                   No. 1867 WDA 2013


              Appeal from the Order entered October 29, 2013,
                in the Court of Common Pleas of Erie County,
              Domestic Relations, at No(s): No. NS201300791


BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED AUGUST 26, 2014




affirm.

      The parties are the parents of one minor child, born in October of

2002. The trial court summarized the case history as follows:

             On December 18, 2002, [Mother] filed a Complaint for
          Support [in which she requested spousal and child
          support]. Following a de novo hearing, the [trial court]
          issued a November 3, 2003 Order assessing Mother with a
          monthly net income/earning capacity of $1,982.40, Father
          with a net income/earning capacity of $4,079.30[,] and

          month and his spousal obligation at $411.42 per month.

            Throughout the pendency of this proceeding, there were
          multiple petitions for modification of support, resulting in


          recent order was a February 25, 2010 Order of Court
J-A23027-14


       which assessed Mother with a monthly net income of
       $2,724.05, Father with a monthly net income of

       $589.77 plus arrears.

          On May 29, 2013, Father filed a Petition for Modification
       of an existing Support Order requesting that his support


       29, 2013, Father filed a Complaint for Support against
       Mother.

         Following a June 27, 2013 support conference, a July 1,
       2013 Order [was entered] assessing Mother with a
       monthly net income of $2,849.89, Father with a monthly

       child support obligation at $450.00 plus arrears.        As

       Fact, the order assessed Father with an earning capacity
       based upon his 2012 wages, rather than his monthly

       decrease in income. Moreover, as stated in the order, the
       order allows a downward deviation from the guideline
       amount due to the shared custody by the parties of the
       child. A July 1, 2013 Order was also issued dismissing

                           ome/earning    capacity   greater   than




          Father filed a Demand for Court Hearing with regard to
       both orders. [With regard to his modification petition,]


       current retirement income which would result in an award
       of child support for [Father]. [With regard to his complaint




          Following an October 29, 2013 de novo hearing, this
       Court issued orders of the same date making each of the
       July 1, 2013 Orders final orders.



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J-A23027-14



Trial Court Opinion, 1/17/14, at 1-3 (citations omitted). This timely appeal

followed. Both Father and the trial court have complied with Pa.R.A.P. 1925.

      Father filed his modification petition and his complaint for support

against Mother at different docket numbers.       As noted by the trial court,

Father filed a notice of appeal from only the docket number listing his

complaint for support against Mother. The trial court opined:

                                  is Pa.R.A.P. 1925(b) statement]
         do not make sense in terms of the order dismissing his
         Complaint, it appears that Father intended to appeal this

         an earning capacity of $5,343.39[,] and setting his
         monthly [child] support obligation at $450.00 plus arrears.

         allegations of error.

Trial Court Opinion, 1/17/14, at 4 (citations omitted).

                                                                    retirement

income was at issue in both dockets, we find no jurisdictional impediment to

appellate review. See Guy M. Cooper, Inc. v. East Penn School District,

894 A.2d 179, 181-82 (Pa. Cmwlth. 2006) (discussing Pennsylvania

                                 ssue of whether an incorrect date or incorrect

                                                                           see

also Pa.R.A.P. 105(a) (providing that rules of appellate procedure should be

construed liberally).

      Father raises the following issues:

         I. The Trial Court erred and abused its discretion in
         ordering [Father] to pay more than 50% of the minor


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J-A23027-14



        2013 when it declared the Order of July 1, 2013 as final.

        II. The Trial Court erred and abused its discretion by failing

        incomes and the needs of the child in calculating support in
        its Order of October 29, 2013 when it declared the Order
        of July 1, 2013 as final.




earning capacity rather than his actual retirement income to determine his

child support obligation, we address them together.

     Our standard of review is well-settled:

        When evaluating a support order, this Court may only

        cannot be sustained on any valid ground. We will not
        interfere with the broad discretion afforded the trial court
        absent an abuse of 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


        interests.


Sirio v. Sirio, 951 A.2d 1188, 1192-93 (Pa. Super. 2008) (citation omitted).

     When a party petitions for modification of an existing support order, he



                                                             . 1910.19(a). It



of circumstances has occurred since the entry of the previous support order.

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J-A23027-14



Plunkard v. McConnell

determination of whether such a change occurred in the circumstances of

                                                            Id.



                                 Berry v. Berry, 898 A.2d 1100, 1104 (Pa.




actual earnings. Reinert v. Reinert, 926 A.2d 539 (Pa. Super. 2007). Rule

1910.16-2(d)(4) of the Pennsylvania Rules of Civil Procedure provides the

domestic relations hearing officer and/or trial court with the methodology to

determine whether a party should be assessed an earning capacity.         The

subsection provides:


        (d) Reduced or Fluctuating Income.

            (1) Voluntary Reduction of Income. When either party
        voluntarily assumes a lower paying job, quits a job, leaves
        employment, changes occupations or changes employment
        status to pursue an education, or is fired for cause, there
        will be generally no effect on the support obligation.

           (2) Involuntary Reduction of, and Fluctuation in,
        Income. No adjustments in support payments will be
        made for normal fluctuations in earnings.            However,
        appropriate adjustments will be made for substantial
        continuing involuntary decreases in income, including but
        not limited to the result of illness, lay-off, termination, job
        elimination or some other employment situation over
        which the party has no control unless the trier of fact finds
        that such a reduction in income was willfully undertaken in
        an attempt to avoid or reduce the support obligation.

           (3) Seasonal Employees. Support orders for seasonal
        employees, such as construction workers, shall ordinarily
        be based upon a yearly average.


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J-A23027-14


            (4) Earning Capacity. If the trier of fact determines
         that a party to a support action has willfully failed to obtain
         or maintain employment, the trier of fact may impute to

         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).     Following a voluntary reduction in income, a

parent seeking a support modification must establish that the change in

income was not made in order to avoid child support and that a reduction in



mitigate the lost income.     Ney v. Ney, 917 A.2d 863, 866 (Pa. Super.

2007).



obligation due to his retirement, the trial court reasoned as follows:

            Voluntary retirement does not entitle a support obligor
         to a reduction in his support obligation; it merely allows
         him the opportunity to demonstrate a need for reduction.
         See Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super.
         2010).

                                     ***




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J-A23027-14


          Father testified that he was laid off from his job on
       February 28, 2012. The February 28, 2012 letter provided
       by Father in support of his position provides:

          Key Lakes, Inc. and American Maritime Officers have
          agreed upon a new contract that will take effect
          March 1, 2012. This new contract eliminates the
          seniority provision and reduces the employee roster
          to those who are permanently assigned to a specific
          vessel. Regretfully, you could not be retained in a
          permanent position at this initial fit out. You should
          consider yourself eligible for employment at Key
          Lakes, Inc., and we urge you to register to [a] ship
          as jobs will become available.

          The permanent assignments were made through a
          process that was discussed with the union and the
          final appointment list was approved by the AMO.

       See February 28, 2012 Letter from Captain William C.
       Peterson, General Manager, to Eric Pikiewicz. In reality,
       Father did not lose his employment. To the contrary,
       Father was simply unable to maintain a permanent
       assignment on a ship in the Great Lakes. Work remained
       available to Father through his contract with American
       Maritime Officers. In fact, after February of 2012, Father
       worked vessels that took him off of the Great Lakes.
       Father did not, however, want to work jobs that took him
       off of the Great Lakes and, therefore, on June 1, 2013,
       Father, at 44 years of age, retired. Accordingly, this Court
       determined that Father voluntarily retired to avoid having
       to take jobs which took him off of the Great Lakes.

          Prior to retirement, Father worked in the maritime
       transportation industry in excess of twenty years. When
       Father retired, he received a $1,660.84 monthly pension, a
       substantial reduction from his $5,343.39 monthly net
       income in 2012.      As a result, it is clear that Father
       voluntarily reduced his income.

         Finding that Father voluntarily reduced his income, the
       Court considered whether the change in income was made

       mitigation efforts warranted a reduction in his [child
       support obligation]. See Kersey v. Jefferson, 791 A.2d
       419 (Pa. Super. 2002); see also Grimes v. Grimes, 596

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J-A23027-14


         A.2d 240 (Pa. Super. 1991). As discussed above, Father
         retired in order to avoid working off of the Great Lakes,
         not to avoid child support. Father has not, however,
         engaged in any mitigation efforts to minimize the impact of
         his reduction in income. To the contrary, Father testified
         that he has no plans to obtain steady employment;

         and make a living on the farm.

            Considering that Father is only 44 years old, that there
         is no evidence that Father has any health problems, that
         he has in excess of 20 years [of] experience in the
         maritime transportation industry, and that jobs were
         available in his line of work, although he voluntarily chose
         not to continue working them, the Court assessed Father
         with an earning capacity reflecting his work in maritime

         custody arrangement, the Court allowed a downward
         deviation in


         are without merit.

Trial Court Opinion, 1/17/14, at 4-6.

      Our review of the record and pertinent case law supports the trial

                          Smedley v. Lowman, 2 A.3d 1226 (Pa. Super.

2010), this Court held that the trial court did not abuse its discretion by

assigning a father an earning capacity greater than his pension for child

support purposes, when the father voluntarily retired two years after

accumulating his fully vested pension benefits, while in good health and

fifty-two years of age.   Id. at 1227.    In so holding, we stated that the

                                                 -two and receive a pension

representing only half of his former salary is a voluntary reduction of income

as indicated in Rule 1910.16-           Id. at 1229.   Additionally, we opined


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J-A23027-14




service in the Waynesboro Police Department, he also had the interests of

his seven-year-old child to consider. As stated by this Court in [Grimes v.

Grimes

                                  Id.

      The facts in Smedley are similar to the facts before us. In both cases,

neither father indicated a willingness to supplement his retirement income.

While the trial court in Smedley affirmed the assignment of an earning

capacity equivalent to a part-time job, id., our review of the record supports

the trial co

so that he could retire and spend more time with his son. Thus, the trial



earnings.

                                        ary are unavailing.   He first asserts

that the trial court abused its discretion by ordering him to pay child support



                                                              support the trial



economic analysis or need based reasoning why said support order should

be maintained in light of the new equal custody order . . . and subsequent

schooling order     Id.

      Our review of the record indicates that the support guidelines were

properly applied in this case, and that the trial court deviated downward in

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J-A23027-14




                      claim.



determination that he has not continued to seek employment after retiring,

we note that issues of credibility which are supported by the record cannot

be disturbed on appeal. See Doherty v. Doherty, 859 A.2d 811, 812 (Pa.

Super. 2004) (explaining that matters of credibility are solely within the




10.

      Finally, Father argues that the trial court abused its discretion by



                                                                      ther,

                                                                Id. Father




                Id. at 11.




divorce proceedings in 2005, see N.T., 10/2



                                                          Grimes, supra.

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J-A23027-14




earning capacity to Father given his voluntary retirement, as well as the

deviation downward from the applicable guideline amount given the current



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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