J-S16015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINA M. TELISKI                                   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

LANCE A. THORNTON

                             Appellant                     No. 1405 WDA 2016


           Appeal from the Order Entered September 15, 2016
              In the Court of Common Pleas of Erie County
    Domestic Relations at No(s): NS201600393/PACSES No. 225115840


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

MEMORANDUM BY MOULTON, J.:                                  FILED JUNE 29, 2017

       Lance A. Thornton appeals from the September 15, 2016 order of the

Erie County Court of Common Pleas directing Thornton to pay Christina M.

Teliski1 $956.05 per month in spousal support effective March 28, 2016. We

affirm.

       On April 15, 2014, the trial court assessed Thornton with an earning

capacity of $115,000 in a separate child support action filed by Lorraine

McCall.2 Thornton appealed the April 15, 2014 assessment, and this Court
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       *
           Retired Senior Judge assigned to the Superior Court.
       1
           Teliski did not file a brief with this Court.
       2
           The trial court explained this assessment as follows:

            The assessment was based upon Mr. Thornton’s prior
            employment with STNA and was the same earning capacity
(Footnote Continued Next Page)
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affirmed. See McCall v. Thornton, No. 790 WDA 2014, unpublished mem.

(Pa.Super. filed Dec. 31, 2014).

      On January 14, 2016, following a support modification conference, the

Domestic Relations Section of the Erie County Court of Common Pleas

entered an interim order in McCall, assessing Thornton’s earning capacity at

$115,000. Thornton demanded a de novo hearing. At that hearing:

          Mr. Thornton presented evidence indicating that his
          business, RainEater, LLC, was restructured and is now Eric
          Automotive Aftermarkets Holdings, Inc. In addition, Mr.
          Thornton, asserting that his income is only around $50,000
          per year as an employee for Eric Automotive Aftermarket
          Holdings, Inc., testified that he no longer manages or
                       _______________________
(Footnote Continued)

          set for Father on January 8, 2013 . . .      As previously
          explained:

             [Mr. Thornton] did not challenge the $115,000.00
             earning capacity assessment in January of 2013.
             Furthermore, [Mr. Thornton’s] circumstances have
             not changed since January of 2013. He owns and
             operates RainEater now, as he did then. RainEater
             allegedly operated at a loss in excess of $100,000
             then as it allegedly does now. The only thing which
             has changed is that [Mr. Thornton], inconsistent with
             his position of lack of income, is now building a
             $328,105.00 home.       In sum, in early 2013 Mr.
             Thornton accepted an assessment of $115,000.00
             annual earning capacity, yet by the end of the year
             he wanted the Court to believe that he was incapable
             of such income, even though his circumstances had
             not changed and he was capable of building a
             $328,105.00 home.

      See Opinion, June 24, 2014 at 5-6.

Trial Ct. Op., 10/26/16, at 1-2 (“1925(a) Op.”).



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           leads the company, that he does not make executive
           decisions and that he only retained approximately a 45%
           interest in the company.

Trial Ct. Op., 10/26/16, at 2 (“1925(a) Op.”). On March 21, 2016, the trial

court entered an order finalizing the January 19, 2016 interim order.

Thornton appealed, and on December 22, 2016, this Court affirmed. 3 See

McCall v. Thornton, No. 535 WDA 2016, unpublished mem. (Pa.Super.

filed Dec. 22, 2016).

       On March 28, 2016, Teliski filed a support complaint against Thornton,

seeking spousal support and alimony pendente lite (“APL”). In its opinion,

the trial court set forth the factual and procedural history of this case:

           Following a May 31, 2016 conference, an Interim Order of
           Court issued setting Mr. Thornton’s monthly APL obligation
           as $956.05, plus $125 for arrears. The June 2, 2016
           Summary of Trier of Fact issued by the conference officer
           details that Mr. Thornton was assessed with a $115,000
           annual gross earning capability based upon the December
           3, 2014 Superior Court ruling and March 9, 2016 de novo
           hearing in McCall v. Thornton. Mr. Thornton filed a
           Demand for Court Hearing. Following the de novo hearing,
           the Court issued its August 23, 2016 Order making the
           June 2, 2016 interim order a final order. Mr. Thornton, on
           September 20, 2016 filed his Notice of Appeal from the
           Order.

Id.

       Thornton raises one issue on appeal:        “The trial court erred and

abused [its] discretion in assessing [his] income at $6,871.42 a month and
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       3
         Although Thornton’s brief acknowledges the importance of the
McCall case, he did not advise us that another panel of this Court rendered
a decision in that case adverse to him in December 2016.



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not assessing his income at a level consistent with income taxes and pay

records.”4    Thornton’s Br., Stmt. of Question Involved (suggested answer

omitted).5 Our standard of review in support matters is as follows:

           [T]his Court may only reverse the trial court’s
           determination where the order cannot be sustained on any
           valid ground.     We will not interfere with the broad
           discretion afforded the trial court absent an abuse of . . .
           discretion or insufficient evidence to sustain the support
           order. An abuse of discretion is not merely an error of
           judgment; if, in reaching a conclusion, the court overrides
           or misapplies the law, or the judgment exercised is shown
           by the record to be either manifestly unreasonable or the
           product of partiality, prejudice, bias or ill will, discretion
           has been abused.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (quoting Summers

v. Summers, 35 A.3d 786, 788 (Pa.Super. 2012)).

       Thornton argues that the trial court incorrectly calculated his earning

capacity. However, Thornton admits that “this identical issue [was] before

this Court regarding [his] earning capacity” in McCall, and that “the trial

court at the [de novo hearing] noted that it would consider the evidence

from the earlier case in arriving at a decision in this case.” Thornton’s Br.,



____________________________________________


       4
       In his Pennsylvania Rule of Appellate Procedure 1925(b) statement,
Thornton raised issues regarding collateral estoppel between the child
support matter with Ms. McCall and the instant appeal. However, Thornton
has expressly abandoned these issues on appeal. See Thornton’s Br. at 5.
       5
      Thornton’s brief contains a table of contents with incorrect page
numbers, and his brief is unpaginated.



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Stmt. of the Case, ¶ 3.    At the de novo hearing, Thornton admitted the

similarities between McCall and this case:

        [THORNTON’S COUNSEL]: . . . Right now, Mr. – in another
        case, Mr. Thornton’s income capability is on appeal to the
        Superior Court.

        THE COURT: That’s one of my cases, right?

        [THORNTON’S COUNSEL]: Yes, ma’am. I didn’t [k]now if
        – because the Superior Court is looking at that now,
        whether that’s something that should be stayed until that
        decision is made? And again, I just brought that – wanted
        to bring that to the Court’s attention, not normally dealing
        with an issue sort of like that, you know, back-to-back kind
        of issue.

        THE COURT: Yes, I understand what the position is. And
        our support conference officer in this case utilized the
        income capability from that previous case –

        [THORNTON’S COUNSEL]: Yes.

        THE COURT: -- that is currently up on appeal.

        [THORNTON’S COUNSEL]: Yes. So I don’t know if this
        should be stayed until the Superior Court makes a decision
        on that, Your Honor.

        THE COURT: I understand what the issue is with regard to
        that. And I understand that Mr. Thornton’s argument in
        this case is the same as the argument in the case
        that’s up on the Superior Court –

        [THORNTON’S COUNSEL]: Yes, Your Honor.

        THE COURT: -- and that is, what is his actual income.

        [THORNTON’S COUNSEL]: Yes, Your Honor.

                                    ...

        THE COURT: . . .       I understand what your issue is,
        [counsel], so really the reason we’re here today is Mr.
        Thornton’s income capability. And your argument is that
        this proceeding should be stayed pending the resolution –

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         [THORNTON’S COUNSEL]: Yes, Your Honor.

         THE COURT: -- of the Superior Court, and if the Superior
         Court deems that my determination in the prior case was
         incorrect, then it’ll be remanded for a rehearing on income
         calculations.

         [THORNTON’S COUNSEL]: Yes, Your Honor.

         THE COURT: And if I am upheld by the Superior
         Court, then, in fact, the income calculation that I
         establish from Mr. Thornton will be in place both for
         that case and then it would be in place for this case.

         [THORNTON’S COUNSEL]: Yes, Your Honor.

N.T., 8/5/16, at 3-5.

      In deciding Thornton’s prior appeal in McCall, this Court addressed

Thornton’s claims and the trial court’s rationale for setting Thornton’s

earning capacity at $115,000 as follows:

            [Thornton] complains that the trial court erred when it
         assessed his earning capacity based on a job that he held
         years ago and ignored all evidence that his current
         company is going through hard times and his income is
         diminished.     He concedes that when he worked for
         NASCAR and STNA, he made a high income. However,
         when he lost his job at STNA when his division was sold,
         he started his own company, RainEater.            [Thornton]
         further asserts that RainEater filed for bankruptcy. He was
         able to keep RainEater going but could not make it grow.
         He then transferred his shares to a group of investors and
         became an employee with a 45% ownership stake. At the
         hearing before the trial court, [Thornton] presented pay
         stubs to demonstrate that he earns a gross bi-weekly
         salary of $2,667.24. Brian Hickey, the controller for the
         new company, testified that [Thornton] does not have
         access to company funds and that the company was
         operating at a loss. According to [Thornton], the trial
         court abused its discretion when it determined that
         [Thornton] failed to show any material or substantial
         change of circumstances since the April 15, 2014 order.


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          The trial court explained its determination:

          The Court remains unconvinced, however, that
          [Thornton’s] reported earnings present an accurate
          picture of his actual income in connection with his
          business interests. As Brian Hickey testified, Erie
          Automotive Aftermarket Holdings, Inc. was created
          for the purpose of overtaking RainEater.          While
          RainEater was restructured, [Thornton] clearly
          remains more than just an employee.               First,
          inconsistent with [Thornton’s] testimony of a 45%
          interest in Erie Automotive Aftermarket Holdings,
          Inc., both the Form 2553 Election by a Small
          Business     Corporation     for    Erie    Automotive
          Aftermarket Holdings, Inc. and the minutes from the
          October 1, 2015 Organizational Meeting of
          Shareholders and Board of Directors indicate that
          [Thornton] is an 82% shareholder of Erie Automotive
          Aftermarket Holdings, Inc.            Moreover, while
          [Thornton] allegedly reports to Jeff Fatica, who is the
          CEO, Jeff Fatica holds only 4% ownership in the
          Company and he and all other officers of Erie
          Automotive Aftermarket Holdings, Inc. serve at the
          pleasure and under the direction and control of the
          Board of Directors. See Exhibit 7, Bylaws of Erie
          Automotive Aftermarket Holdings, Inc.; see also Erie
          Automotive       Aftermarket       Holdings,     Inc[.],
          Organizational Meeting minutes, October 1, 2015.
          Meanwhile, [Thornton] is one of only five voting
          members of the Board of Directors of Erie
          Automotive Aftermarket Holdings, Inc. See Erie
          Automotive       Aftermarket       Holdings,     Inc[.],
          Organizational Meeting minutes, October 1, 2015.
          Furthermore, [Thornton] admitted in his March 2016
          testimony that, despite his lack of a formal
          leadership role in Erie Automotive Aftermarket
          Holdings, Inc., the employees of the company look
          up to him for guidance. This is clear as Brian Hickey,
          who was [Thornton’s] only other witness and
          supposedly serves as the Controller for the new
          company, lacked any knowledge about ownership
          interests in the company. Mr. Hickey attempted to
          explain his lack of insight as his role serving more of
          the day to day operations and employee payroll type


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              of issues, yet [Thornton] even had to correct Mr.
              Hickey on how payment for employee insurance
              works. In that regard, the Court is not convinced
              that [Thornton] is merely an employee of Erie
              Automotive Aftermarket Holdings, Inc. with only
              $50,000 in income.

              Accordingly, while the structure of [Thornton’s]
              business may have changed, the Court is not
              convinced that it has changed in a manner which
              changed [Thornton’s] income. [Thornton] has not
              been forthright regarding his interest and role with
              the business, continuing the appearance that his
              actual income is sheltered.         In that regard,
              [appellant] failed to prove a material and substantial
              change of circumstances since entry of the April 15,
              2014 Order.

           Trial court opinion, 6/6/16 at 4-5.

              Essentially, the trial court failed to find appellant
           credible.     As fact-finder, that is the trial court’s
           prerogative. It is not the role of this court to reweigh the
           evidence and make its own credibility determinations. See
           Habjan v. Habjan, 73 A.3d 630, 644 (Pa.Super. 2013).
           Further, the trial court’s conclusion that appellant owned
           82% of Erie Aftermarket Holdings, Inc., was supported by
           the evidence in the record. Because appellant was not
           found credible, he failed to meet his burden of proof.
           Here, appellant has failed to establish that the trial court
           abused its discretion when it adopted the interim order as
           final.

No. 535 WDA 2016, unpublished mem. at 5-7.6


____________________________________________


       6
        Courts and parties ordinarily may not rely upon or cite an
unpublished memorandum from this Court. See 210 Pa. Code § 65.37.
However, we may do so here because Thornton, who was a party in the
McCall case, agreed during the trial court proceedings that the outcome of
this case would be controlled by this Court’s disposition of the McCall
appeal.



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       The calculation of earning capacity is based on the support guidelines

under Pennsylvania Rule of Civil Procedure 1910.16, which are used

regardless of whether the support ordered is paid to a child or a spouse.

See Strawn v. Strawn, 664 A.2d 129, 132 (Pa.Super. 1995) (“Spousal

(and child) support are to be awarded pursuant to a statewide guideline as

established by general rule by the Pennsylvania Supreme Court”); Pa.R.C.P.

1910.16-1 (“[T]he support guidelines determine the amount of support

which a spouse or parent should pay based on the parties’ combined

monthly net incomes as defined in Pa.R.C.P. No. 1910.16-2”).           In light of

Thornton’s admissions before the trial court and this Court, our decision on

the merits in McCall, and the support guidelines, we agree with our prior

reasoning in McCall and affirm the trial court’s order.7

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       7
        In its Rule 1925(a) opinion, the trial court found that the allegations
of error with respect to the calculation of Thornton’s earning capacity “are
without merit for the reasons set forth by the Court in its June 6, 2016
Opinion in McCall v. Thornton[,]” because:

           [a]ll of the . . . allegations relate to the assessment of Mr.
           Thornton’s income and are the same allegations made by
           Mr. Thornton regarding the same income assessment on
           appeal in McCall v. Thornton at 535 WDA 2016. This is
           consistent with the assertion of Mr. Thornton’s counsel at
           the August 5, 2016 de novo hearing in [this case] that his
           evidence and position regarding Mr. Thornton’s income
           was the same as that presented regarding his income in
           McCall v. Thornton.

1925(a) Op. at 4-5 (internal citations omitted).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




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