J-A06018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.O. A/K/A C.G.                               IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

N.G.

                         Appellant                 No. 808 MDA 2015


                 Appeal from the Order Entered April 8, 2015
              In the Court of Common Pleas of Dauphin County
                  Domestic Relations at No(s): 824 DR 2011


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                         FILED APRIL 26, 2016

       N.G. (Father) appeals pro se from the order, entered in the Court of

Common Pleas of Dauphin County, dismissing his petition for modification of

child support which sought a reduction in his support obligation due to his

chronic medical condition which makes him unable to work full-time. After

careful review, we affirm based on the opinion authored by the Honorable

Jeannine Turgeon.

       The parties were married in 2007 and separated in 2011; one child

was born of the marriage (born 9/10).      C.O. (Mother) filed a complaint

seeking child support in May 2011.     Mother maintained primary physical

custody of Child.   On July 11, 2011, the court entered an order requiring

Father to pay $780/month in child support, plus $2,086.18 in arrears. The

court’s order was based on a determination that Father’s monthly net
J-A06018-16



income was $2,248.35.          On January 13, 2012, the court entered an order

decreasing Father’s support payment to $670.80/month, plus $64/month in

arrears.    Finally, on May 21, 2013, the court further decreased Father’s

support payments to $642.82/month, plus $64.28 in arrears/month,

effective April 24, 2013.

       On August 15, 2014, Father filed a petition to modify his support

obligation, claiming that he is unemployed and unable to work full time due

to a medical condition, Thalassemia Major,1 that makes him transfusion

dependent.      A conference on the petition was held on October 20, 2014,

after which an officer denied Father’s petition, and determined that Father’s

earning capacity is $50,000/year.

       On November 5, 2014, Father filed a de novo appeal from the

conference officer’s determination. On April 8, 2015, the trial court held a

hearing, after which it dismissed Father’s appeal, noting that based on the

evidence of record the court found him to be “certainly capable of working

from home . . . to earn money” and that he could “do tax returns from home

while [he is] getting transfusions.”           Id. at 19.   The court also noted that
____________________________________________


1
  Thalassemia is an inherited blood disorder in which the body makes an
abnormal form of hemoglobin, the protein in red blood cells that carries
oxygen. The disorder results in large numbers of red blood cells being
destroyed,       which       leads       to      anemia.             See
https://www.nlm.nih.gov/medlineplus/ency/article/000587.htm (last visited
March 28, 2016).     Father testified that both of his parents carry the
Thalassemia trait which gave him a 25% chance of being born with the
disease. N.T. Appeal De Novo, 4/8/15, at 8.



                                           -2-
J-A06018-16



when, and if, Father becomes unable to work, he can file for social security

disability benefits which would go towards his support obligation. Id.

      Father filed the instant pro se appeal which raises the following issues

for our consideration:

      (1)   Did the trial court correctly deny the appeal even after
            hearing credible testimony from the Appellant and viewing
            Exhibits presented by Appellant’s counsel including but not
            limited to the duly completed and signed Physician
            Verification Form?

      (2)   Did the trial court judge correctly hold Appellant to a full
            time earning capacity of $50,000 ignoring the assertion by
            Appellant’s Hematologist on the Physician Verification Form
            that Appellant is unable to work and that it was
            undetermined when his health condition would allow him
            to return to work?

      (3)   Did the trial judge correctly hold Appellant to a full time
            earning capacity of $50,000 ignoring Appellant’s credible
            testimony that he was unable to work full time?

      (4)   Did the trial judge correctly hold Appellant to a full time
            earning capacity of $50,000 ignoring credible testimony
            that the Defendant was currently unemployed, was not
            receiving unemployment compensation and yet was being
            assessed    child  support    based    on   unemployment
            compensation that he last received in 2012?

      (5)   Was the trial judge correct in ignoring credible testimony
            that Appellant was sustaining himself with the help of
            programs such as Supplemental Nutrition Assistance,
            LIHEAP and Medical Assistance, on a monthly pension of
            $189 per month and by parents, family and friend, and yet
            he was [sic] being assessed child support based on a
            national net monthly income of $2,200 (approximate)
            derived from unemployment compensation he last received
            in the year 2012?

      (6)   Was the trial court correct in assessing child support on
            the Appellant given that child support laws and regulations
            were created to ensure that the custodial parent does not

                                    -3-
J-A06018-16


            become a ward of the state yet in this case the custodial
            parent (obligee) who earns an income of $60,000 per year
            is awarded child support of $7,713.84 per year from a
            non-custodial parent (obligor) whose only income is
            $2,268 per year from a pension and who is dependent on
            federal and state benefits to sustain himself?

      (7)   Did the trial court correctly ignore credible testimony from
            Defendant and Plaintiff exhibits identified 12, 13, and 14
            which show that he was looking for ways to generate
            whatever income he could given his medical condition and
            instead assessed him a full-time earning capacity of
            $50,000?

      (8)   Was the trial court correct in not reducing Appellant’s child
            support burden based on his actual earnings until he
            applied for and was approved for Social Security Disability?

      (9)   Was the trial court judge correct in ignoring the trier of
            fact [sic] compiled by the conference officer and presented
            at the hearing by Kim Robinson, Director of the Domestic
            Relations Office?

      The amount of a child support order is largely within the discretion of

the trial court, whose judgment should not be disturbed on appeal absent a

clear abuse of discretion. Isralsky v. Isralsky, 824 A.2d 1178, 1187 (Pa.

Super. 2003) (citation omitted).    An abuse of discretion is not merely an

error of judgment, but rather a misapplication of the law or an unreasonable

exercise of judgment. Id. A finding that the trial court abused its discretion

must rest upon a showing by clear and convincing evidence, and the trial

court will be upheld on any valid ground. Id.

      While Father’s brief lists nine separate issues, the essence of his claims

boils down to the single contention that the court improperly attributed him

a $50,000 earning capacity and failed to reduce his support obligation where

his medical condition prevents him from working full-time.

                                     -4-
J-A06018-16



      A person’s support obligation is determined primarily by the parties’

actual financial resources and their earning capacity. Baehr v. Baehr, 889

A.2d 1240 (Pa. Super. 2005). Earning capacity is the amount that a person

realistically could earn under the circumstances, considering his age, health,

mental and physical condition, training, earnings history, and child care

responsibilities.   Woskob v. Woskob, 843 A.2d 1247 (Pa. Super. 2004).

See Pa.R.C.P. 1910.16-2(d)(4).

      “A provision of an agreement regarding child support, visitation or

custody shall be subject to modification by the court upon a showing of

changed circumstances.” 23 Pa.C.S. § 3105(b).      When a party petitions to

modify support, due to a substantial change in circumstances, a court may

modify the amount, as follows:

      (c) Pursuant to a petition for modification, the trier of fact may
      modify or terminate the existing support order in any
      appropriate manner based upon the evidence presented without
      regard to which party filed the petition for modification. If the
      trier of fact finds that there has been a material and substantial
      change in circumstances, the order may be increased or
      decreased depending upon the respective incomes of the parties,
      consistent with the support guidelines and existing law, and each
      party's custodial time with the child at the time the modification
      petition is heard.

Pa.R.C.P. 1910.19(c) (emphasis added).      Father’s claim that a downward

deviation of his support obligation and earning capacity is appropriate and

necessary is based on the following provision:

      Involuntary Reduction of, and Fluctuations in, Income. No
      adjustments in support payments will be made for normal
      fluctuations in earnings. However, appropriate adjustments will


                                    -5-
J-A06018-16


       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.

Pa.R.C.P. 1910.16-2(d)(2) (emphasis added). It is the obligor’s burden to

prove that any income reduction was involuntary. Grimes v. Grimes, 596

A.2d 240, 242 (Pa. Super. 1991).

       Father has a master’s degree in business administration and is a

licensed, certified public accountant.    From August 2003 to 2009, Father

earned approximately $52,000 to $54,000/year. At the time of the de novo

appeal in April 2015, Father testified that he had been unemployed for the

past   eight   months.     Father   receives   medical   benefits   through   the

Department of Public Welfare, receives food stamps and carries secondary

insurance. At the hearing, Father presented a November 2014 physician’s

verification form, see Pa.R.C.P. 1910.29(b)(2), stating that he is unable to

work due to his medical condition and that the doctor could not determine

when he could return to work. N.T. Appeal De Novo, 4/8/15, at 7. At the

hearing, Mother’s attorney produced evidence that Father’s LinkedIn account

showed Father has been the owner of an accounting business from May

2011 to present, that he is also employed as a real estate agent with Keller

Williams, and that he advertises his services as a private credit counselor on

Facebook. Id. at 12-14. Mother’s counsel also pointed out that according to

records in the parties’ pending custody action, Father’s Twitter account



                                      -6-
J-A06018-16



indicates that he extensively traveled to India (12/2014 to 2/2015; 10/2013

to 3/2014; and 12/2012 to 2/2013).

       Instantly, the trial court concluded that Father is capable of working

from home and earning a full-time wage over the course of a seven-day

work week. Under such conditions, the court reasoned that Father would be

able to rest and accommodate his need for scheduled medical treatments,

required as a result of his blood condition.     In coming to its decision, the

court also took into account Father’s own testimony at the 2014 custody

hearing that his health was improving, as well as Mother’s testimony that

Father had extensively traveled internationally from December 2014 to

March 2015, again from October 2013 to March 2014, and finally again from

December 2012 to February 2013, without medical complications.             See

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (“[w]hen the trial

court sits as fact finder, the weight to be assigned the testimony of the

witnesses is within its exclusive province, as are credibility determinations,

[and] the court is free to choose to believe all, part of none of the evidence

presented.”).

       While Father produced a form from his physician attesting to his

medical condition and inability to work, the court found that information

stale, inadmissible under the rules of procedure,2 and contradicted based on

____________________________________________


2
 We note that under Rule 1910.29(b)(2), Father was required to serve the
physician verification form on Mother not later than 20 days after the
(Footnote Continued Next Page)


                                           -7-
J-A06018-16



the other evidence of record. Accordingly, the court concluded that Father

did not prove that his medical condition resulted in a substantial continuing

involuntary decrease in his income.              See Pa.R.C.P. 1910.16-2(d)(2).   Our

review of the hearing transcript supports the trial court's factual findings and

legal conclusions; therefore, the court properly denied his petition. Grimes,

supra.

      We rely upon Judge Turgeon’s opinion to affirm the court’s underlying

order. We advise the parties to attach a copy of that decision in the event of

further proceedings in the matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




                       _______________________
(Footnote Continued)

conference with the conference officer. This, in turn, would have given
Mother the opportunity to file and serve an objection to the introduction of
the form within 10 days. Instantly, Father did not comply with the service
requirements under the rule, thus preventing Mother from objecting to or
rebutting his medical testimony. For this reason, the trial court did not
permit the form to be formally admitted into evidence at the hearing.



                                            -8-
                                                                                         Circulated 03/29/2016 03:33 PM



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                                     MEMORANDUM OPINION                                             ::! ~           oo
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          Before the court is the appeal filed by Niilil9 ·1<.._./       from an order directffig him~
. pay child support, This opinion is written in support of the order, pursuant to Pa.R.A.P. I 925(a).

                                             Background
          The parties, mother Cllli I'm and father N......-0· J I        I, were married in 2007 and
 separated in 2011.    Following their separation, mother maintained primary physical custody of
 the parties' daughter, currently foul' years old (DOB 9/10). Mother flied a complaint                     seeking
 child support under this docket in 2011 ultimately resulting in an order requiring father pay child
 support of $665 per month plus $66 per month on arrears.' The order was decreased to $642 per
 month plus $64 per month on arrears, effective April 24, 2013. On August 15, 2014, father filed
 a petition to decrease his support obligation claiming he had no source of income and was unable
 to pay any support. (N.T. 3-4) Following an office conference> I issued an order denying his
petition October 20, 2014, upon the conference officer's recommendation, Father filed a timely
request for de novo review which hearing was eventually held April 8, 201 S, due to requests for
continuances by the parties.

         In determining    father's child support obligation, the conference officer assigned him a
gross yearly earning capacity of $50,000. (N.T. 5) This earning capacity was assigned based

I
  Father also initiated his own action at the time seeking spousal support. l denied father's request
following a hearing December I, 20 JI. ~....._.)' v. c. G1 _....:, 850 DR 2011 (Mem, Opn. March I,
2012). Father appealed my ruling on that issue and on child support, The Superior Court quashed father's
child support appeal Rs interlocutory because I had directed the case be remanded to collect income and
day care cost information from mother. C. Gl...-, v. N. Glisl 1!1P6 MDA 2012 (Feb, 24, 2012).
rather later tiled to discontinue his spousal support appeal. N. G· ·   _:. ,;. C. Gr_~    4 MDA 2012
(June 5, 2012).                                                    .              ·.7..-,
                                                                                        q--/ 0
                                                              ~.,y,-r. t'.'JI • • ~
                                                              .ftr\'£.RED ·BY ..
    (   \




    upon father's educational background and earnings history. Father, currently 41 years of age, has
    a Master's Degree in Business Administration       and has been licensed as a CPA. (N.T. 5, 9) He ·
    was employed between 2003 and 2009 as an auditor manager with the Commonwealth earning
    approximately $52,000 to $54,000. (N.T. 6) This court also takes judicial notice from the 2011
    hearing in this matter, that as recently as 2011, father had been employed by the Navy where he
    had been making more than $80,000 per year, N. Gc~:.[.i,::_-,   v. C. 0,,:~1.:1,,·::,   850 DR 201 l (Mem.
    Opn, March l , 2012). He was later laid off from that job and was unemployed much of 2013
    during which he collected unemployment compensation. That source of income has since been
    exhausted. (N.T. 4-5) Father was last employed with Algomod Technologies between May and
    August 2014. (N.T. 5)

            Father testified at the hearing that he should be assigned a reduced earning capacity
    because he suffers from Thalassemia Major and is unable to work full time. (N.T. 7, 18) His
condition      causes anemia and requires blood transfusions every two to three weeks. The
transfusions have resulted in an iron overload which has resulted in Type 2 Diabetes and
Hepatitis C. (N.T. 8) He claimed his condition renders him weak and unable to work. (N.T. 9)
He submitted a physician's verification from November 2014 in which his physician indicated
that father is unable to work and that it was "undetermined" when he could return to work.2 (N.T.
7) He has been placed on a list to receive a bone marrow transplant                   but has been told there is
little chance for a match due to bis Indian ancestry, (N.T. 9-10) As of the de novo hearing, father
had not applied for Social Security disability benefits. (N.T. l 0)

            Mother presented evidence that at the parties' custody hearing before the Hon. Scott
Evans on September 24, 2014, father sought shared physical custody of the parties' daughter,
representing to the court that he was in «better physical health now." (N.T. 12-13) (citing N.
Gp' '         v. C. G ' I   \, No. 2011 CV 4775 CU (at N._T. 162-63)) Father testified at the current
hearing that he was able to take care of his young daughter but that he could not work the long
hours expected of auditors. (N. T. 11)

            Mother also presented evidence of father's work history as reflected on a number of
media sites used by father as of April 7, 2015. (Exbts. P-1 - P-4))                  In an entry posted on his

2
    The Physician Verification Form was presented at the hearing but not admitted into evidence.

                                                      2
                                                                   (



 Linkedln account, father includes a detailed work history since July 1994. (N.T. 12-13) His most
 recent work listing includes an entry that he has been the owner of "NWS. Gal I            /, CPN'
 since May 2011. (N.T. 12; Exbt. P-1) He summarizes his experience as "[fjourteen years of
 finance, accounting and audit experience. Eleven years of experience leading audit engagements
 and managing accounting function." (Exbt, P-1) Father also actively advertised and identified
 himself on his Facebook page as offering private credit counseling and other financial services.
 (N.T. 14; Exbt. P-4) In addition, father was listed as an agent on the website of the
 KellerWilliams, a global real estate firm. (N.T. 13; Exbt. P-2) Father also identified himself on
 his Twitter account as a realtor dealing global properties and offering advice on tax free sales.
 (N.T. 13-14; Bxbt, P-3)

        Mother also presented evidence that father has the resources to travel extensively, noting
he was in India from December 31, 2014 until March 9, 2015, from October I, 2013 until March
2014 and from December I, 2012 until sometime in February 2013. (N.T. 15, 17) Father
additionally planned to travel with the parties' child to Florida within a month following the de
novo hearing in this matter, (N.T. 15)

        Father's response to his social media postings were that they accurately reflected his
attempts to find employment. (N.T. 16) He further indicated that he had not made any income
from his real estate brokerage position. (N.T. 16)

        At the conclusion of the hearing, I held that father was capable of working from home
and earning a full time wage over the course of a seven-day work week, which he would need to
accommodate whatever limitations he claimed and his need for transfusions. (N.T. I 9) I .
additionally noted that the extent of father's health claims were questionable given his recent
statement in the custody action that his health was improving and given the evidence of his
extensive traveling, reflective of improved health and financial resources. (N.T. 19) I later issued
an order denying father's de novo appeal and directing that the order remain at $642 per month
plus $64 per month on arrears, which order was based upon father being assigned a $50,000
earning capacity. Father filed an appeal lo that ruling, currently pending.




                                                 3
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                                                                              i




                                                  Legal Discussion

               Father has filed a lengthy statement of errors raised on appeal, which this court
    necessarily distills to the following issue: the court erred by ignoring credible evidence that
    father is not capable of a foll-time earning capacity due to his medical condition. Father
    specifically complains that the court ignored evidence he presented from his physician
    concerning his inability to work, that he is currently unemployed and has been actively seeking
    part-time employment.' Father suggests that he is only capable of working twenty (20) hours per
    week making $15 per hour, or a yearly gross earning capacity of approximately $14,400.

               Generally, parents have an absolute obligation to support their children and this obligation
    "must be discharged by the parents even if it causes them some hardship." Mcneer v. Ruch, 928
    A.2d 294, 297 (Pa. Super. 2007) (citations and internal quotation marks omitted). "[IJn
    Pennsylvania, a person's income must include his earning capacity, and a voluntary reduction in
    earned income will not be countenanced].]"               Id. "Where a party willfully fails to obtain
    appropriate employment, his      01·   her income will be considered to be equal to his or her earning
    capacltyj.]" not equal to his or her actual earnings. Ney v. Ney, 917 A.2d 863, 866 (Pa. Super.
2007) (citation omitted).

               The applicable Support Guidelines addressing earning capacity are as follows:
               Ruic 1910.16-2. Support Guidelines. Calculation of Net Income.
                (d) Reduced or Fluctuating Income.
                                                     *            *
                 (4) Earning Capacity. If the trier of fact determines that a patty 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 patty 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
3
 Father also raised in his statement of errors issues concerning child care costs and mother's income.
However, none of these issues were raised at the de novo hearing are thus waived. See E.D. v, fvf.P,, 33
A.3d 73, 80 (Pa. Super. 2011) (citing Pn.R.A.P. 302).

                                                         4
                                                                                  (


                   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).4

             "[A) person's support obligation is determined primarily by the parties' actual financial
     resources and their earning capacity. Although 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." Baehr v. Baehr, 889 A.2d 1240, 1244-45 (Pa. Super, 2005) (citing
     Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004) (citations omittedj). 0[A] person's
    earning capacity is defined not as an 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." Haselrig v. Haselrig, 840 A.2d 338,
    340 (Pa. Super, 2003) (quoting Strawn v. Strawn, 664 A.2d 129, 132 (Pa. Super. 1995)).

            In deciding upon father's earning capacity, this court takes into consideration                 the totality
    of his circumstances,    including his age ( 41 ). health, work experience, earnings history and child
    care responsibilities.   Pa.R.C.P.      19 JO. I 6-2(d)(4). With regard to father's health, he claims this
    court erred by ignoring credible evidence presented from his physician, With regard to the
    physician 's verification     form, it asserted that father was unable to work. Father himself
    represented     to the court that he is at least capable of part-time                   employment.     (N.T. 18)
    Furthermore,     the form was submitted        in November 2014, five months prior to the de novo
    hearing. This evidence       was thus of limited value. Additional                evidence   revealed that father
    recently claimed in the custody action that his health was Improving and that he has not been
    limited by his condition from either the expense          01· exertion   of extensive traveling.

           The evidence         presented    otherwise   revealed father          has a significant        educational
background, including an MBA degree and is licensed as a CPA. He earned an average gross
annual income of around $50,000 during the 2000's, which increased to $80,000 as recently as
20 I I. This earnings history reflects that father is capable of working from home and earning a
foll-time wage over the course of a seven-day work week, taking rest breaks as needed to


4
 The Rules of Civil Procedure promulgated by the Supreme Court, have the force of statute. Maddas v.
Dehaas, 816 A.2d 234, 238 (Pa, Super. 2003), nppenl clcnied, 827 A.2cl 1202 (Pa. 2003).


                                                          5
.   .   ..




             accommodate his medical condition. Finally, father presented no evidence that child care
             responsibilities hinder his ability to work.

                     Accordingly, I denied father's request to reduce his child support obligation.



                       Jul)1 8, 2015
                             Date



             Distribution:
                        .                                           -
             Nik.hitS,oklaney-;     30 Snddk Ridge Drive, Harrisburg Pa. 17110
             Nichole M. Walters, Esq. - YWCA Legal Center, 112 Market St Fl. 4, Harrisburg, PA 17101-2024




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