J-S76022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINA L. PILEWSKI                          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GARY L. LEMON

                        Appellant                    No. 952 WDA 2014


                    Appeal from the Order May 13, 2014
                In the Court of Common Pleas of Erie County
                 Domestic Relations at No(s): NS200301197


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                       FILED FEBRUARY 11, 2015

      Appellant, Gary L. Lemon, appeals from the order entered by the

Honorable Elizabeth K. Kelly, Court of Common Pleas of Erie County, which

denied his petition to modify an existing child support order, finding that he

did not meet his burden to establish that he attempted to mitigate his lost

income after his termination for cause. We affirm.

      Father has a 28-year-old disabled son to whom he is under an

obligation to provide monthly support. Father worked as a track inspector

for CSX Corporation for many years. On March 25, 2013, CSX terminated

Father’s employment for cause. In April 2013, Father moved to decrease his

monthly child support obligation based on his job loss. After a hearing, the

trial court issued an order assessing Father’s monthly net income for support
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purposes at $5,283.72 and keeping the monthly support obligation at

$804.16, plus arrears.

       On   December       24,   2013,    Father   filed   another   petition   seeking

modification of his child support obligation, reasoning that he was employed

in a minimum wage, part-time position and that he had gone to jail for a

period of eight months1 (a result of a DUI conviction). Following a support

conference, an interim order was entered assessing Father’s monthly income

at $4,938.84 per month and keeping the monthly support obligation at

$804.16, plus arrears. Father filed a demand for a de novo hearing. The

trial court held a hearing at which time it permitted Father to argue once

again his termination for cause as the primary reason to reduce his assessed

earning capacity and his monthly support obligation. After the hearing, the

trial court entered an order making the interim order final.               This timely

appeal followed.

       On appeal, Father argues that the trial court erred in finding that he

did not meet his burden to establish that he attempted to mitigate his lost

income and, as a result, incorrectly assessed his earned income.

       We review the propriety of a support order for an abuse of discretion.

See Ewing v. Ewing, 843 A.2d 1282, 1285 (Pa. Super. 2004).

____________________________________________


1
  Courts will not reward criminal behavior by modifying an existing support
order because of imprisonment. See Novinger v. Smith, 880 A.2d 1255,
1257 (Pa. Super. 2005).



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      “[W]here a parent is fired for cause, in order for the court to consider

reducing the parent’s child support obligation under Rule 1910.16-2(d)(1),

the parent must establish that he or she attempted to mitigate lost income.”

Id., at 1288. A panel of this Court has explained the assessment of earning

capacity:

      Pa.R.C.P. 1910.16–2(d) 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 generally will be no effect on the support
            obligation.

            ....

            (4) Earning Capacity. Ordinarily, either party to a support
            action who willfully fails to obtain appropriate
            employment will be considered to have 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.

      Under Rule 1910.16–2(d)(1), if a party voluntarily accepts a
      lower paying job, there generally will be no effect on the support
      obligation. A party may not voluntarily reduce his or her income
      in an attempt to circumvent his support obligation. Where a
      parent is fired for cause, however, the court can consider
      reducing the parent’s child support obligation under Rule
      1910.16(2)(d)(1) if the parent establishes that he or she
      attempted to mitigate lost income.

Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006) (internal case

citations omitted).


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      At the hearing, Father testified that he has attempted to secure other

employment “numerous times” and offered into evidence a handwritten

sheet with twenty employers’ names, some with the type of position applied

for, and the date of application. N.T., Hearing, 5/12/14, at 7; Exhibit “A.”

Only one was with a railroad. Father applied for jobs in August, September,

and December 2013 and in February, March, and April of 2014.           Father

described the list as

      a copy that I made that – of the different searches I’ve done,
      different on-line applications I’ve done, a couple different job
      fairs I’ve gone to. Just every attempt. There’s probably some
      more in there that I don’t have that I, you know, just plain
      forgot, because I wasn’t documenting it at the time.

N.T., Hearing, 5/12/14, at 7. Father provided no further detail as to his job

search.

      The trial court found that Father did not meet his burden of

establishing that he attempted to mitigate his lost income. The trial court

explains as follows:

      Prior to his termination, Father, for more than 36 years, worked
      a full-time job as a foreman at a company where he made
      $29.01 per hour, plus overtime. Now, he does janitorial work for
      twelve and a half hours each week, making only $7.25 per hour.
      Father indicated that he is pursuing full-time employment
      opportunities.    Specifically, he testified to doing numerous
      searches, submitting on-line applications, and attending job
      fairs. In support of his testimony, he submitted a hand-written
      document listing 20 items purportedly showing his efforts. The
      [c]ourt questions, however, the sincerity of Father’s efforts.
      Father’s employment search list does nothing more than provide
      the court with company names, a few of which include job titles
      for which Father presumably applied. The list does not, for the
      most part, detail the type of employment sought, list the salaries

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       for the positions, or even whether or not the employers actually
       had open positions for which father was qualified. …
       Accordingly, Father did not sufficiently satisfy his burden of
       establishing that a reduction is warranted based on his efforts to
       mitigate the lost income.

Trial Court Opinion, 8/7/14, at 6-7.

       Based on the handwritten exhibit and the rather scant testimony

provided by Father we cannot find that the trial court abused its discretion.

Only eleven of the jobs listed in the exhibit have positions identified; the

remaining simply have the names of companies. Father applied to only one

railroad.2    As the trial court notes in its opinion, we have no concrete

information about the positions or the salaries. Father had the opportunity

to provide the trial court with this information at the hearing, but, for

whatever reason, failed to elaborate on his job search. Compare Baehr v.

Baehr, 889 A.2d 1240 (Pa. Super. 2005) (finding father did not make a

reasonable effort to find employment commensurate with his ability where

his job search consisted of simply contacting various companies to inquire

about employment opportunities and posting his resume on Monster.com.),

with Grigoruk (finding mother acted responsibly and in good faith to



____________________________________________


2
  In his brief, Father makes much of the fact that he lost his driver’s license
and how that effectively forecloses his working for a railroad as a track
inspector. See Appellant’s Brief, at 5-6. It was simply noted at the hearing
that he lost his license; Father did not offer any explanation about how that
affected his job search.



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mitigate her earning loss where she conducted, albeit unsuccessfully, a six

month job search for positions exclusively within her experience level).

      Essentially, the trial court did not believe Father’s testimony.     We

cannot disturb this finding. See Doherty v. Doherty, 859 A.2d 811, (Pa.

Super. 2004) (“[A] reviewing court does not weigh the evidence or

determine credibility as these are functions of the trial court.”).

      There is no bar to Father filing at some future date another petition

seeking a modification of his earning capacity and monthly support

obligation.   “The person should not have to pay forever for losing

employment. At some point, the courts should take another look at his or

her true earning capacity.” Novinger v. Smith, 880 A.2d 1255, 1257 (Pa.

Super. 2005).    Here, Father filed the instant petition 275 days after his

termination and woefully failed to meet his burden that he attempted to

mitigate his lost income.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2015




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