J-S22033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.M.B.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

B.S.W.

                            Appellant                 No. 1248 MDA 2016


                  Appeal from the Order Entered June 29, 2016
                in the Court of Common Pleas of Dauphin County
                    Domestic Relations at Nos.: 1280 DR 2009
                             PACSES No. 817110975


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JUNE 08, 2017

        Appellant, B.S.W. (Father), appeals from the trial court’s child support

order assigning T.M.B. (Mother) a part-time earning capacity for the period

of August 26, 2015 through January 3, 2016, and giving her a credit for the

cost of child care. We modify in part, vacate in part, and remand.

        The parties are familiar with the complex history of this case, and

therefore, we will not exhaustively repeat it here. However, for the ease of

the reader’s review, we provide the following relevant background, which we

take from the trial court’s September 29, 2016 opinion and our independent

review of the certified record.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Father and Mother married in 2009 and separated in 2012.            The

parties have two children (Children), born in July 2006 and September 2008,

of whom they share fifty/fifty custody.    Mother filed a complaint seeking

child and spousal support in 2009, which she subsequently withdrew. She

again filed the complaint in 2012.     On August 19, 2013, the trial court

ordered that Father pay child and spousal support, and arrears effective April

1, 2013. Spousal support was terminated effective October 1, 2013.

      On September 4, 2014, Mother filed a petition for modification because

her diagnosis with stage four metastatic breast cancer rendered her unable

to work. At the December 2014 support conference, the parties agreed that

Mother’s earning capacity should be set at $25,000.00 annual gross salary

for the period of time when she was not suffering from health issues.

Therefore, Mother was assigned an earning capacity of zero from September

through December 2014, and then the agreed-upon $25,000.00 for the

period after that.

      On August 26, 2015, Mother filed another petition for modification on

the bases that: (1) Father was no longer entitled to a child care credit

because the youngest child was no longer in daycare; (2) Mother was now

providing health insurance for the Children; (3) there was no child support

order for Father’s child from a different marriage; (4) Father’s tax returns

were inaccurate; (5) Mother’s earning capacity should be zero because of

her medical condition; and (6) Father’s failure to pay child support pursuant




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to the December 23, 2014 order’s terms. (See Petition for Modification of

Support Order, 8/26/15, at attachment).

        At a December 23, 2015 office conference, Mother submitted a letter

from her employer stating that she began working twelve hours per week on

December 8, 2015, and was earning fifteen dollars per hour.             Mother

produced current year-to-date pay stubs and 2014 tax return information.

However, although she presented a letter from her doctor stating that she

only could work four hours per day, she did not submit a physician

verification form.1 Father provided Mother with 2013 and 2014 tax returns,

estimates of 2015 earnings, and receipts for expenditures. On February 16,

2016, Mother was assigned a gross annual earning capacity of $9,385.68,

and Father was ordered to pay child support and arrears.



____________________________________________


1
    Pennsylvania Rule of Civil Procedure 1910.29 provides, in pertinent part:

        In a non-record hearing, if a physician has determined that a
        medical condition affects a party’s ability to earn income and
        that party obtains a Physician Verification Form from the
        domestic relations section, has it completed by the party’s
        physician and submits it at the conference, it may be considered
        by the conference officer. . . .

        . . . If the matter proceeds to a record hearing and the party
        wishes to introduce the completed Physician Verification Form
        into evidence, he or she must serve the form on the other party
        not later than [twenty] days after the conference. . . .

Pa.R.C.P. 1910.29(b)(1)-(2).



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     The same day, Mother filed for a de novo review of the domestic

relations hearing on the basis of a lack of documentation to support Father’s

income. (See Trial Court Opinion, 9/29/16, at 3). The court held de novo

hearings on April 5, 2016 and May 27, 2016.      (See id.).   At the May 27,

2016 hearing, Father provided Mother with a Schedule C that he filed with

his 2015 state and local tax returns as evidence of his income. (See id.).

He argued that Mother should be held to a full-time earning capacity at the

agreed upon yearly gross rate of $25,000.00 for August 26, 2015 through

January 3, 2016, because she failed to provide a physician verification form

evidencing that her continued medical issues precluded her from working,

(see id. at 4), and because her paystubs reflect that she was earning more

than the income assigned.      (See N.T. Hearing, 4/05/16, at 17).    Mother

testified that there is no longer any medical reason rendering her unable to

work full-time, and has been employed part-time since January 4, 2016,

from approximately 10:00 a.m. to 2:00 p.m., five days per week. (See id.

at 37-38, 50).   She did not request a credit for child care or provide any

evidence in support of same.

     On June 29, 2016, the trial court entered an order that, in pertinent

part, assigned to Mother a gross yearly earning capacity of $9,385.68 from

August 25, 2015 through January 3, 2016. Beginning on January 4, 2016,

Mother was held to a full-time earning capacity of $31,200.00, which is

fifteen dollars ($15.00) per hour at forty hours per week. The court gave

the parties equal credit for child care costs because they share fifty/fifty

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custody of the Children, and both were assigned full-time earning capacties

as of January 4, 2016.2 Father timely appealed on July 28, 2016.3

       Father raises the following issues for this Court’s review:

       1.    Did the [trial] court err when it calculated [Mother’s]
       earning capacity from August 26, 2015 through January 3,
       2016?

       2.    Did the [trial] court err when it gave Mother credit for child
       care expenses beginning January 4, 2016 when no evidence was
       presented of child care expenses by Mother?

(Father’s Brief, at 4) (unnecessary capitalization omitted).

       Our standard of review in child support cases is well-settled:

             Appellate review of support matters is governed by an
       abuse of discretion standard. 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. An abuse of
       discretion is [n]ot merely an error of judgment, but if in reaching
       a conclusion the law is overridden or misapplied, or the
       judgment exercised is manifestly unreasonable, or the result of
       partiality, prejudice, bias or ill-will, as shown by the evidence of
       record. The principal goal in child support matters is to serve
       the best interests of the children through the provision of
       reasonable expenses.



____________________________________________


2
  Also in the June 29, 2016 order, Father was directed to pay child support.
In a July 18, 2016 order, the court amended the payment amount.
However, the June 29, 2016 order remained the same in all other respects
and the change is not pertinent to our review.
3
  On September 6, 2016, Father filed a timely statement of errors
complained of on appeal, pursuant to the trial court’s order. On September
29, 2016, the court filed an opinion. See Pa.R.A.P. 1925.



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J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015), appeal denied, 130

A.3d 1290 (Pa. 2015) (citation omitted).    An abuse of discretion “will be

found where there is insufficient evidence to sustain the award or where the

law is overridden or misapplied.” Lampa v. Lampa, 537 A.2d 350, 352 (Pa.

Super. 1988) (citation omitted).

     Here, in his first issue, Father argues that the trial court erred in

calculating Mother’s yearly earning capacity for the period of August 26,

2015 through January 3, 2016, where it should have been set at the agreed-

upon amount of $25,000.00 gross per year.       (See Father’s Brief, at 12).

Both the trial court and Mother agree.    (See Trial Ct. Op., at 9; Mother’s

Brief, at 3-4).   The record supports this understanding.      Therefore, as

requested by the trial court, (see Trial Ct. Op., at 11), we modify its child

support order to set Mother’s yearly gross earning capacity for the period of

August 26, 2015 through January 3, 2016, at $25,000.00.

     In Father’s second issue, he argues that “the [trial] court erred when it

gave Mother credit for child care expenses beginning January 4, 2016 when

no evidence was presented of child care expenses by Mother.”        (Father’s

Brief, at 12) (emphasis and unnecessary capitalization omitted).      We are

constrained to agree.

     An award of support, once in effect, may be modified via petition
     at any time, provided that the petitioning party demonstrates a
     material and substantial change in their circumstances
     warranting a modification. See 23 Pa.C.S.A. § 4352(a); see
     also Pa.R.C.P. 1910.19.      The burden of demonstrating a
     material and substantial change rests with the moving party, and

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      the determination of whether such change has occurred in the
      circumstances of the moving party rests within the trial court’s
      discretion.

Plunkard v. McConnell, 962 A.2d 1227, 1229 (Pa. Super. 2008), appeal

denied, 980 A.2d 111 (Pa. 2009) (case citation and quotation marks

omitted).

      Here, the trial court modified the support order by awarding Mother a

credit for child care expenses equal to the amount granted to Father on the

basis that it was assigning her a full time earning capacity and “it is a

general assumption that a parent who is employed full-time will incur child

care costs.” (Trial Ct. Op., at 10). We are constrained to conclude that this

was an abuse of discretion.

      Mother requested the de novo hearing because of the insufficient

evidence of income Father provided at the support conference. She did not,

and indeed could not, assert that there was a material change in her

employment circumstances warranting a modification in the form of a credit

for child care because no such situation existed.     At the hearing, Mother

testified that there was no longer any medical reason rendering her unable

to work full-time, but she only had been working approximately four hours

per day since January 4, 2016. (See N.T. Hearing, 4/05/16, at 37-38, 50).

Mother did not testify or provide any evidence that she is working full-time,

is actively attempting to work full-time, is incurring any child care costs, or

that she will be sustaining them. (See id. at 31-45).


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       Hence, “there is insufficient evidence to sustain the award.” Lampa,

supra at 352 (citation omitted).               The trial court abused it discretion in

modifying the support order to provide Mother with a child care credit where

there was no material change in circumstance to justify doing so. 4               See

J.P.D., supra at 889.

       Accordingly, we vacate that portion of the order that credits Mother for

child care costs, and remand for the recalculation of the child support order

consistent with our decision; and we modify the court’s order to reflect

Mother’s gross yearly earning capacity of $25,000.00 for the period of

August 26, 2015 through January 3, 2016.

       Order modified in part, vacated in part, and remanded.              Jurisdiction

relinquished.

       Judge Moulton joins the Memorandum.

       Judge Shogan files a Concurring and Dissenting Memorandum.




____________________________________________


4
  The trial court’s assumption that Mother will incur child care costs if she
returns to work full-time is merely speculative at this time. Only should a
material and substantial change in circumstances occur wherein Mother
realizes child care costs because of her employment would she then be
entitled to file a petition for modification on those grounds. See Plunkard,
supra at 1229.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




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