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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SHARON L. BUCHANAN                          :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                       Appellant                :
                                                :
                                                :
                v.                              :
                                                :
                                                :
    HARRY W. BUCHANAN IV                        :   No. 2186 EDA 2019

                  Appeal from the Order Entered July 9, 2019
     In the Court of Common Pleas of Lehigh County Domestic Relations at
                       No(s): Docket No. DR-00-00546,
                            PACSES No. 400102086


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                                    FILED MAY 26, 2020

       Sharon L. Buchanan (“Mother”) appeals the July 9, 2019 order

sustaining the exceptions filed by Harry W. Buchanan (“Father”) to the

recommended support order directing him to make monthly support payments

for his nineteen-year-old daughter, Bonnie Buchanan. After careful review,

we affirm.

       This contentious support litigation precedes the April 2000 birth of

Bonnie, who was added to Mother’s then-pending petition for support for

herself and Bonnie’s older sibling.1           During 2014, Bonnie contracted the

Epstein-Barr virus and a streptococcal infection that caused a cascading array

____________________________________________


1 The spousal support obligation terminated effective October 1, 2008. The
sibling was removed from the support order effective November 10, 2016,
having attained the age of majority.
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of symptoms and neurological conditions that were not diagnosed properly for

several years. Her most recent diagnoses revealed the contraction of Lyme

disease and postural orthostatic tachycardia syndrome.

      Bonnie attained the age of majority in April 2018 and graduated from

high school two months later. On December 13, 2018, and January 24, 2019,

a domestic relations hearing officer heard evidence concerning Mother’s

position that her daughter’s mental and physical health conditions permitted

her to rebut the presumption of emancipation embodied in 23 Pa.C.S.

§ 4321(3), which provides, “Parents may be liable for the support of their

children who are 18 years of age or older.” Specifically, the hearing officer

considered testimony from Bonnie and her psychiatrist, Lantie Elisabeth

Jordanby, M.D., who has treated Bonnie since April 2018.           Dr. Jordanby

testified that Bonnie suffers from, inter alia, headaches, light sensitivity, low

blood pressure, and neurocognitive symptoms such as depression, anxiety,

and attention deficit. These conditions impact Bonnie’s executive functioning

and ability to complete everyday tasks. Dr. Jordanby explained, “she’s not

able to really maintain good short-term memory. She has periods where . . .

she’ll have brain fog where she just has difficulty clearing her head, thinking

clearly, being able to focus well . . . [and] difficulty maintaining concentration

on projects.” N.T., 12/13/18, at 24. Dr. Jordanby continued that Bonnie has

tolerated treatments and made modest improvements “with her overall

status.” Id. at 33. She opined, “it’s going to take a while for her to really


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beat all. In fact, I’d imagine probably by April of next year [(2019)] we’ll see

significant improvement.” Id.

      Bonnie testified about her problems with fatigue, dizzy spells, chest

pain, and gastrointestinal complications. N.T., 1/24/19, 10-11. As it relates

to the reasons that she has never sought employment, Bonnie stated that she

cannot look at screens or read print for more than ten minutes. Id. at 19.

She also indicated that she cannot stand in one place for longer than a couple

minutes without getting dizzy, suffering migraines, or experiencing chest

pains.   Id.   Notwithstanding these impediments to employment, Bonnie

declined to file for disability insurance, stating “my mom and I just have an

understanding that I’m too sick to work and that’s as far as our discussions

go.” Id. at 35. Nevertheless, she stated a desire to work fulltime after she

attains her college degree “and maybe even more school after that.” Id. 37.

      Father   did   not   present   any   evidence,   ostensibly,   because   the

presumption favored terminating the child support obligation. On March 1,

2019, the hearing officer issued a report finding in favor of Mother, and on

March 7, 2019, the trial court entered a child support order that, inter alia,

directed Father to pay $4,181.66 per month in child support and $420.00 for

arrears. Father filed timely exceptions, and after argument and the filing of

briefs, the trial court sustained Father’s exceptions, vacated the March 7, 2019

child support order, and terminated Father’s support obligation effective June

14, 2018.


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      This timely appeal followed. As Mother and the trial court both complied

with Pa.R.A.P. 1925, the appeal is ripe for our review. Mother presents one

compound issue on appeal:

            Did the trial court commit an error of law and abuse its
      discretion in its order of court entered on July 9, 2019, by failing
      to place sufficient weight on the findings of the domestic relations
      support hearing officer, . . . and did the trial court commit an error
      of law and abuse its discretion in its order of court originally
      entered on July 9, 2019, by failing to place sufficient weight on
      the testimony of [Mother’s] witness, the child’s doctor, Lantie
      Jorandby M.D.[?]

Mother’s brief at 6 (unnecessary capitalization omitted).

      We review child support matters for an abuse of discretion, which occurs

if the law is 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. T.M.W. v. N.J.W., --- A.3d ---- (Pa.Super, 2020), 2020 PA Super

17, 2020 WL 502527, *2. The issue of a child’s “[e]mancipation is a question

of fact to be determined by the circumstances presented in each case.”

Kotzbauer v. Kotzbauer, 937 A.2d 487, 493 (Pa.Super.2007) (citation

omitted). “[T]he test is whether the child is physically and mentally able to

engage in profitable employment and whether employment is available to that

child at a supporting wage.” Id. at 490 (quoting Hanson v. Hanson, 625

A.2d 1212, 1214 (Pa.Super. 1993)).

      While the principal goal in child support matters is to serve the best

interests of the children through the provision of reasonable expenses,




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      the duty to support a child ends when the child turns eighteen or
      graduates from high school. However, pursuant to 23 Pa.C.S.
      § 4321(3), a parent may be required to support a child who, upon
      reaching the age of majority, has a mental or physical condition
      that prevents the child from being self-supporting.

Id. at 489-90 (Pa.Super. 2007) (cleaned up). As we have stated, “The adult

child . . . bears the burden of proving the conditions that make it impossible

for her . . . to be employed.” Heitzman-Nolte v. Nolte, 837 A.2d 1182,

1184 (Pa. Super. 2003). Furthermore, “a parent is only called upon to support

an adult child to the extent the child cannot aid him or herself.” Crawford v.

Crawford, 633 A.2d. 155, 161 (Pa.Super. 1993).

      Mother asserts that the trial court “cavalierly disregard[ed]” the hearing

officer’s factual findings and conclusions and discounted the testimony

presented by Dr. Jordanby, who testified as an expert in psychiatry. Mother’s

brief at 11. Mother’s argument is founded on the proposition that the trial

court could not disturb the determination of the child support hearing officer

absent an abuse of discretion. While Mother cites Johnson v. Johnson, 529

A.2d 1123 (Pa.Super 1987) to support this argument, her reliance upon

Johnson, is inapt because that equitable distribution case does not address

a trial court’s reverence for a hearing officer’s determination. To the contrary,

that case simply reiterated the well-ensconced standard of review that this

Court applies to the trial court as the ultimate arbiter of fact. Id. at 412.

(“Under this standard, we do not usurp the hearing court’s duty as factfinder.




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Rather, we apply the legislative guidelines of the Divorce Code to the record

to determine whether or not the hearing court has abused its discretion.”).

      In actuality, the findings of a child support hearing officer are “only

advisory and not in any way binding on the trial court.” Ewing v. Ewing, 843

A.2d 1282, 1286 (Pa.Super. 2004) (quoting Goodman v. Goodman, 544

A.2d 1033, 1035 (Pa.Super. 1988)). Rather, “it is the sole province and the

responsibility of the court to set an award of support and even if the evidence

before   the   Support   Hearing    Officer   is   adequate   to   support   her

recommendation, the trial court need not adopt it.” Id. (cleaned up). Stated

another way, the trial court is required to make an independent assessment

of the hearing officer’s report and recommendations. Kohl v. Kohl, 564 A.2d

222, 224 (Pa.Super. 1989). “The reviewing court must consider the evidence,

its weight and the credibility of the witnesses, de novo. The . . . report is not

controlling, either on the lower court or on the appellate court.” Rothrock v.

Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000).            The one often-stated

exception to this rule, which relates to credibility determinations, is best

described as follows: “not to say that the master’s conclusions regarding

credibility are binding on the reviewing court, but where the record alone does

not indicate which party’s testimony should be credited, the determination of

the master can tip the balance.” Id.

      Instantly, the trial court accepted the hearing officer’s factual findings

in performing its independent assessment of the hearing officer’s report and


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recommendations. Indeed, while the trial court reached a different outcome

as to the question of emancipation, a non-deferential legal question, the trial

court    did   not   make   any   independent     factual   findings   or   credibility

determinations. As outlined below, the trial court adopted the hearing officer’s

factual summary.       Thus, we reject Mother’s contention that the trial court

abused its discretion by ruling contrary to the hearing officer’s ultimate

conclusion.

        We also reject Mother’s assertion that the trial court disregarded Dr.

Jordanby’s testimony because she did not specifically opine about Bonnie’s

ability to work. Mother’s brief at 17. The trial court considered all of Mother’s

evidence, including Dr. Jordanby’s description of Bonnie’s numerous ailments

and their effect on her ability to perform daily tasks. Specifically, the trial

court noted,

        the Domestic Relations Hearing Officer relied on the testimony of
        Bonnie’s psychiatrist regarding symptoms of chronic fatigue,
        cluster headaches, chronic immune deficiency, depression,
        anxiety and poor executive function. The psychiatrist testified
        regarding the diagnosis of Lyme disease.               While Bonnie’s
        psychiatrist testified that Bonnie’s treatment plan is complex and
        she has difficulties with day-to-day activities, the psychiatrist did
        not opine that any of these issues prevent Bonnie from being self-
        supporting or make it impossible for her to be employed. In fact,
        while the psychiatrist testified that Bonnie has difficulty with day-
        to-day activities, difficulty getting to school, difficulty maintaining
        a level of energy she went on to offer “[i]t isn’t that she isn’t able
        to do these things, but it takes significant effort.” At many points
        in the psychologist’s testimony she referred to the “difficulty”
        Bonnie experiences with things like clearing her head, thinking
        clearly, being able to focus well, maintaining focus, and
        maintaining concentration on projects.           However, while the
        psychiatrist opined that Bonnie has “difficulties,” none of the

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      psychiatrist’s testimony amounts to evidence that it is impossible
      for Bonnie to maintain employment. In fact, the psychiatrist went
      on to express some of the medicines and treatments administered
      and that Bonnie has had some modest improvement with her
      overall status. The psychiatrist offered “[i]n fact, I’d imagine
      probably by April of next year we’ll see significant improvement.”

      Further reliance by the Domestic Relations Hearing Officer was
      given to Bonnie’s testimony that she suffers from blurry vision,
      light sensitivity, has a hard time reading for more than a few
      minutes at a time, feels discomfort after looking at a computer
      screen for any appreciable amount of time, gets dizzy and vomits.
      While Bonnie testified that it is hard for her to focus or read a book
      for more than ten minutes and that lights bother her, she did not
      indicate that it was impossible or that she was unable to do such
      tasks.

Trial Court Opinion, 7/9/19, at 3-4 (citations to record omitted).

      In addition, the trial court considered Bonnie’s testimony that, while she

never attempted to work, she was “a really good college student[, who does

not] miss classes,” even enduring lighting that bothers her vision.            N.T.,

1/24/19, 24, 29. It also noted Mother’s explanation for neglecting to apply

for disability benefits for her daughter, i.e., “Bonnie won’t allow [it because

she] does not want to be labeled.” N.T., 12/13/18, at 45.

      While Mother was not required to present expert testimony regarding

her employability, she was required to demonstrate that Bonnie could not

support herself with the available employment opportunities.         The obvious

implication of Dr. Jordanby’s testimony regarding Bonnie’s difficulties was that

Bonnie’s conditions would impact her ability to complete potential work-

related tasks. Contrary to Mother’s protestations, however, the testimony did




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not establish that the health disorders prevented Bonnie from earning a

supporting wage.

      Our decision in Kotzbauer supra, which both parties cite in their

respective briefs, informs our review. In that case, we upheld the trial court’s

determination   that   Kaitlin,   a   nineteen-year   old   woman   with   brain

malformations, was not emancipated even though she was cable of attending

college, maintaining employment, and engaging in certain leisure activities.

At the time of the hearing in Kotzbauer, Kaitlin was a full-time student at a

local community college, in part, so that she could remain on her father’s

health insurance. She suffered three to four debilitating headaches per week,

including migraines, and the headaches got significantly worse in the six

months preceding the evidentiary hearing. Kaitlin’s condition made it difficult

to complete school work, and she struggled to maintain the minimum of

twelve credit hours that full-time students were expected to complete. She

resided with her mother, who provided food, clothing, shelter, and medication.

She was anxious about living independently because she required supervision

and assistance with her medical treatment.

      In addition to attending community college, Kaitlin worked part-time at

a retail store earning $7.38 per hour. Her employer did not offer her a full-

time position, and it suggested that she take a leave of absence due to her

health concerns.    While Kaitlin declined that offer, she applied for social

security disability benefits, but had not received a decision as of the hearing.


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The treating physician in Kotzbauer testified that Kaitlin’s continued ability

to work was dependent on the frequency and severity of her headaches and

observed that Kaitlin remains at risk for seizures, which is consistent with

patients who suffer from her condition.

      In light of the forgoing facts, the trial court determined that the nineteen

year-old was not an emancipated child. We affirmed, reasoning, in part,

      it was undisputed that [Kaitlin] underwent brain surgery after
      developing seizures, and three lay witnesses, Kaitlin, Mother, and
      [her work supervisor], testified that Kaitlin cannot maintain full-
      time employment because she suffers from acute migraine
      headaches that frequently interfere with her existing work
      schedule.

Kotzbauer, supra at 491.

      The facts of the case at bar do not align with the facts that drove our

rationale in Kotzbauer. Unlike the adult child in that case, who struggled to

maintain the minimum level of college credits and was totally dependent on

her mother, Bonnie is capable of exceling at college, albeit with substantial

effort. She lives independently in a dormitory, and although her numerous

health problems encumber her daily routine, those conditions are improving.

Moreover, while the adult child in Kotzbauer attempted employment and

failed, which is confirmation of her lack of self-sufficiency, Mother neglected

to present similar evidence that Bonnie was incapable of self-support. In sum,

while the clear implication of Dr. Jordanby’s testimony is that employment

would be physically and mentally demanding, Mother did not adduce evidence

that Bonnie was incapable of engaging in profitable employment, nor did she

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establish that employment was not available to Bonnie at a supporting wage.

Hence, she did not rebut the presumption of emancipation.        Id. at 490;

Hanson, supra at 1214 (“test is whether the child is physically and mentally

able to engage in profitable employment and whether employment is available

to that child at a supporting wage.”).

      Accordingly, we see no reason to disturb the order in question.

      Order affirmed.

      Judge Murray joins the memorandum.

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2020




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