J-S52024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 N.A.S.                                 :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 K.F.S.                                 :      No. 435 MDA 2018

             Appeal from the Order Entered January 30, 2018
 In the Court of Common Pleas of Lancaster County Domestic Relations at
                          No(s): 2011-01412,
                          PACSES: 036112476

 K.F.S.                                 :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 N.A.S.                                 :
                                        :
                   Appellant            :      No. 436 MDA 2018

             Appeal from the Order Entered January 30, 2018
 In the Court of Common Pleas of Lancaster County Domestic Relations at
                          No(s): 2017-02851,
                          PACSES: 253116782


BEFORE:   BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                   FILED DECEMBER 13, 2018

     N.A.S. (“Mother”) appeals from the support order entered on January

30, 2018. Mother alleges an abuse of discretion by the trial court when it

assigned her an earning capacity and by ordering Mother to repay an

overpayment to K.F.S. (“Father”). We affirm.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      The trial court aptly summarized the factual and procedural history of

this case as follows:

            On November 3, 2015, following a complex support hearing,
      the court ordered [Father], to pay $2,326.96 per month in support
      of the parties’ three children. On July 25, 2017, [Father] filed a
      request for modification, alleging that he now had full legal and
      physical custody of these children. After being continued once, the
      Domestic Relations Officer held a support modification conference
      on September 22, 2017. Following this conference, the court
      entered an order on September 27, 2017, terminating the support
      order in the 2011 [c]ase without prejudice, as it determined the
      children were no longer in the custody of [Mother]. The court
      further ordered [Mother] to reimburse [Father] the child support
      overpayment of $9,428.59 within sixty days. [Mother] filed a
      demand for a hearing on October 17, 2017. After being continued
      once, this hearing was held on January 25, 2018.

            [Father] filed a complaint for support on October 26, 2017.
      A recommended order was issued on December 6, 2017. This
      order required [Mother], to pay $390.78/month in support of the
      parties’ three children, as well as $39.00/month on arrears.
      [Mother] filed a petition of special relief requesting a hearing on
      the support order and the court granted this request by order
      dated January 9, 2018.

            The court . . . consolidated the two cases [and held a hearing
      on both cases on January 25, 2018.] It entered an order on
      January 30, 2018. This order was effective October 26, 2017, and
      required [Mother] to pay $556.99 in support of the parties’ three
      children and to pay $108 per month on arrears. It further ordered
      that the $9,428.59 overpayment in the 2011 [c]ase be added to
      the 2017 [c]ase as an arrearage.

                                      ***

             Prior to 2005, [Mother] worked in a variety of professional
      positions, earning as much as $80,000 per year. She worked as a
      clinical auditor and a sales representative for Johnson & Johnson.
      She has a college education. In 2005[,] she voluntarily left
      employment in order to care for the couples’ children. Since that
      time, she was a fulltime mother and homemaker. During their

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      marriage, she started her own business, but this was not a
      financial success. Following the parties’ separation, [Mother] lived
      in New Jersey and had primary physical custody of the children.
      Father lived in Lancaster, Pennsylvania, and saw the children for
      only a few hours on the weekends. [Mother] also attempted to
      find employment following the parties’ separation. She obtained
      her real estate license in 2013 but was unable to generate income
      with this certificate. She testified that this was due largely to
      health issues suffered by one of the parties’ children. Although
      [Mother] testified that she hopes one day to return to work, she
      presented a Physician’s Verification Form completed by Edward M.
      Franzoni, Ph.D. [Father] did not object to the introduction of the
      Form. On the Verification Form, Dr. Franzoni noted that [Mother]
      was currently unable to work due to her adjustment disorder with
      anxiety. [Mother] admitted that she had no physical limitations
      preventing her from working, but she suffered mental limitations
      stemming from the removal of the children from her custody. This
      occurred in July of 2017.

Trial Court Opinion (“TCO”), filed 4/9/18, at 1-3 (citations to record omitted).

   On appeal, Mother raises the following issues:

      I.     Did the trial court err by assigning Mother an income when
             the only evidence regarding her ability to work was her
             uncontested Doctor’s Verification form stating she was not
             able to earn income?

      II.    Did the trial court err in assigning Mother an earning
             capacity of $15 an hour for 40 hours a week, when no
             evidence was presented regarding any employment
             anywhere that Mother she [sic] was qualified to obtain for
             any number of hours or paying any hourly rate?

      III.   Did the trial court err in sua sponte requiring Mother to
             repay Father an overpayment because of the termination of
             her support where Father did not petition for repayment
             under the statute?

Mother’s Br. at 5.

      “Appellate review of support matters is governed by an abuse of

discretion standard.” J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa.Super. 2015)

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(quoting R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013)). An abuse of

discretion is where the judgment is “manifestly unreasonable or the result of

partiality, prejudice, bias, or ill-will as shown by the evidence of record.”

Hanrahan v. Bakker, 186 A.3d 958, 966 (Pa. 2018). Absent an abuse of

discretion or insufficient evidence to sustain the order, we will not interfere

with the court’s discretion. Sirio v. Sirio, 951 A.2d 1188, 1192 (Pa.Super.

2008).

      First, Mother contends that the trial court committed error when it

assigned her an earning capacity despite her inability to work. See Mother’s

Br. at 13. Mother argues that the trial court “should have relied on the properly

admitted [f]orm of Dr. Franzoni and his determination that Mother’s

adjustment disorder with anxiety made it so she was currently unable to

work.” Id. at 17.

      The Physician’s Verification Form submitted into evidence by Mother,

with no objection from Father, read that Dr. Franzoni diagnosed Mother with

Adjustment Disorder with Anxiety; that it affected her ability to earn income;

but that Dr. Franzoni could not determine if Mother had the ability to return

to work because “[t]here may be future limitations.” See Physicians

Verification Form. When the court asked Mother how her diagnosis affected

her ability to work, Mother replied:

      Your Honor, my children were removed, screaming out of my arms
      in July. I’ve been fighting false allegations that are coming from –
      directly from my ex-husband since July. I am not doing well. So
      I’ve been out almost every single night since July, since my kids

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      were taken, I can barely sleep. During the holidays, I wasn’t able
      to celebrate Christmas. The holidays, I had a very difficult time,
      you know, walking into stores seeing the holiday decorations. I
      can’t go into the same stores I used to go into, seeing people we
      used to know asking about the children, everyone asking about
      the children. There are already tears, and it only helps that I can
      only be around people who know what’s going on so they can help
      me redirect the conversation.

Notes of Testimony (“N.T.”), 1/25/18, at 62. Mother also testified that her

disorder was a mental rather than a physical issue. Id. at 63. While the court

accepted the Physician’s Form into evidence, it did not find Mother credible

“when she testified that her mental health diagnosis prevented her from

finding some form of employment.” TCO, at 6.

      Since “we are bound by the trial court’s credibility determinations,” no

relief is due. K.A.R. v. T.G.L., 107 A.3d 770, 775 (Pa.Super. 2014). It was

within the court’s discretion to accept the form into evidence but it was not

required   to   believe    that   evidence    or   Mother’s    testimony.    See

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa.Super. 2018) (stating

fact finder is “free to believe, all, part, or none of the evidence presented when

making credibility determinations.”). The trial court concluded that despite her

disorder, Mother had the ability to obtain employment and therefore

determined that it could assign her an earning capacity. See TCO, at 6. The

trial court’s finding that Mother has the present ability to work is supported by

the record. Indeed, even Dr. Franzoni stated in the form that he could not

determine whether Mother was unable to work. No relief is due.




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      Next, Mother contends that even if the court did not commit error in

finding that she was capable of working, it erred when it assigned her an

earning capacity of $15 per hour at 40 hours per week, “a figure pulled from

thin air.” Mother’s Br. at 19. However, the record supports the trial court’s

contrary conclusion.

      “The 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.”

Laws v. Laws, 758 A.2d 1226, 1229 (Pa.Super. 2000). Earning capacity is

“the amount that a person realistically could earn under the circumstances,

considering [their] age, health, mental and physical condition, training, and

earnings history.” Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa.Super.

2004).

      When calculating Mother’s earning capacity, the court based the amount

on her education, training, and experience. See TCO, at 6-7. Moreover, it

factored in that Mother had been out of the workforce for a significant period

of time. Id. at 7. The Support Hearing record contained evidence regarding

Mother’s work history and on that basis the trial court assigned her a modest

“earning capacity of $15 per hour and forty hours per week which calculates

to approximately $30,000 per year. . . .” Id. Thus, it assigned her an earning

capacity moderately higher than minimum wage but significantly lower than

the $80,000 salary she received when she was in the workforce. There was

no abuse of discretion by the court.


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      Last, Mother maintains that the trial court erred by allegedly “sua sponte

ordering Mother to repay Father an overpayment that existed upon the

termination of her support award.” Mother’s Br. at 20. The procedure for

obtaining repayment of an overpayment of support is covered by Pennsylvania

Rule of Civil Procedure 1910.19(g)(2), which provides:

      (2) Order Terminated. If there is an overpayment in any amount
      and there is no charging order in effect, within one year of the
      termination of the charging order, the former obligor may file a
      petition with the domestic relations section seeking recovery of
      the overpayment. A copy shall be served upon the former obligee
      as original process. The domestic relations section shall schedule
      a conference on the petition, which shall be conducted consistent
      with the rules governing support actions. The domestic relations
      section shall have the authority to enter an order against the
      former obligee for the amount of the overpayment in a monthly
      amount to be determined by the trier of fact after consideration
      of the former obligee’s ability to pay.

Pa.R.C.P. § 1910.19(g)(2) (emphasis added). Accordingly, Rule 1910.19

provides procedural steps to be taken when there is an overpayment including

filing a petition.

      On November 22, 2017, Mother was ordered to “reimburse [Father] the

child support overpayment of $9,428.59 within 60 days.” N.T., Support

Hearing at 6. Mother’s counsel requested that “given the respective incomes”

of Mother and Father, the trial court not order Mother to pay the overpayment.

Id. at 30. In response, Father stated, “I object to this. I mean, it’s clearly an

overpayment.” Id. at 30-31. Mother’s counsel responded by citing Colonna




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v. Colonna, 855 A.2d 648 (Pa. 2004),1 in support of his contention that

because of the disparity in finances between the parties, Mother should not

have to repay Father. Id. at 31-32. Father again stated, “It’s a clear

overpayment.” Id. at 32. The court concluded that it would review the case

law that counsel referenced before making its decision. Id. at 34. In its

1925(a) opinion, the trial court acknowledged that while Father did not file a

petition, it treated Father’s assertion that Mother should repay his

overpayment as a “petition,” because Father was proceeding pro se. TCO, at

7.

       We conclude that it was not an abuse of discretion for the court to rectify

Father’s overpayment. While Father did not file a written petition, the domestic

relations department added the overpayment to the case and the court acted

within its discretion to remit his accrued support arrearages. See N.T., at 6;

see also Support Order, filed 1/30/18; see also Portugal v. Portugal, 798

A.2d 246, 255 (Pa.Super. 2002) (concluding trial court did not abuse its

discretion by remedying Husband’s overpayment of spousal support with a

monthly credit towards child support); cf. Kessler v. Helmick, 672 A.2d



____________________________________________


1 In Colonna, the issue was whether the trial court erred in requiring Father
to pay child support even though he had primary custody of the children and
Mother had partial custody. Colonna, 855 A.2d at 648. The Court held that
Father was required to pay child support to Mother even though he had
primary custody of the parties children. Id. at 654. This case is inapposite to
the instant case since here, Father has sole legal and physical custody of the
parties’ children. See N.T., Support Hearing, at 15.

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1380, 1384-85 (Pa.Super. 1996) (holding trial court has discretion in setting

method of payment for arrearages where court ordered weekly installments

rather than lump sum payment of arrearages of child support and alimony

pendente lite).

      Furthermore, Mother has not claimed that she suffered any prejudice

from the court’s actions. Essentially, Mother argues that since Father did not

file a written petition, his failure to do so deprived her of notice that the court

was treating Father’s oral statement as a petition to repay the overage.

However, Mother was on notice of the repayment when the Domestic Relations

Section ordered the repayment on November 22, 2017. Moreover, Mother

conceded both the overpayment and the amount at the support hearing. N.T.,

Support Hearing, at 33. She thus sustained no prejudice from the oral motion

made by Father. We therefore affirm the order of the trial court.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2018




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