J-A29013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    E.J.A.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    L.A.D.                                     :
                                               :
                       Appellant               :   No. 384 WDA 2019

                Appeal from the Order Entered February 6, 2019
       In the Court of Common Pleas of Erie County Domestic Relations at
                             No(s): NS200901183


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED FEBRUARY 26, 2020

        L.A.D. (Mother) appeals pro se from the February 6, 2019 order that

denied her petition for modification of an existing child support order, dated

October 11, 2016, for the benefit of her and E.J.A.’s (Father) child, who was

born in October of 2004. After review, we affirm.1

        The trial court provided the following overview of the facts and

procedural history that led to the present appeal.

             In place at the time of the present [p]etition for
        [m]odification was an October 11, 2016 [o]rder of [c]ourt which
        set Mother’s monthly support obligation at $610.63, plus arrears.
        The [o]rder assessed [Father] with a monthly net income of
        $5,050.73[,] and Mother with a monthly earning capacity of
        $3,827.30[,] based on her long-standing position with [General

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 This present appeal is at least the third one filed by Mother with this Court
that relates to her payment of child support.
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      Electric (GE)]. The [c]ourt entered the October of 2016 [o]rder
      following a de novo hearing on Mother’s June 30, 2016 [p]etition
      for [m]odification of an [e]xisting [s]upport [o]rder. At the 2016
      de novo hearing, Mother repeated previous claims that she was
      medically unable to work due to a February of 2015 motor vehicle
      accident, which was allegedly aggravated by a January of 2016
      accident. She further asserted that, even if medically able to
      work, she no longer had a job with GE. As further detailed in this
      [c]ourt’s December 19, 2016 [o]pinion, the undersigned did not
      find Mother credible on her disability claims and further
      determined that her loss of employment was voluntary and that
      she failed to offer evidence of attempts to mitigate her lost
      income. The Honorable Superior Court affirmed the decision. See
      Superior Court 1695 WDA 2016. Accordingly, as of the filing of
      the present petition, Mother had voluntarily reduced her income
      and, as of October of 2016, she failed to mitigate the loss. Eight
      months later, Mother filed the [p]etition for [m]odification
      presently before the [c]ourt.

Trial Court Opinion (TCO), 2/6/2019, at 1-2.

      The court further discussed the testimony provided at the February

2019 hearing in its opinion, setting forth the evidence and its credibility

determinations, stating:

            At the February 4, 2019 de novo hearing, Mother repeated
      her prior claims that her reduction in income from $30.08 hourly
      at GE was involuntary due to injuries from the 2015 and 2016
      automobile accidents[,] and the fact that GE told her that there
      would be no job for her once she was released medically to return
      to work. The issue of the voluntary reduction of Mother’s income
      was already finally litigated. See November 9, 2017 Memorandum
      Opinion at Superior Court Docket 1695 WDA 2016.

            In an attempt to support her claim of inability to work,
      presumably between the entry of the October of 2016 [o]rder and
      the June 9, 2017 filing of her [p]etition for [m]odification, Mother
      presented a document, purportedly signed by a chiropractor. See
      Exhibit B. The document is not dated, does not appear on any
      sort of official or otherwise identifying letterhead, and appears to
      rely heavily on old information and accounts of Mother discredited
      in prior support proceedings. Accordingly, the [c]ourt was not

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     swayed from its prior determination; Mother’s reduction in income
     was voluntary.

                                   ...

            Considering Mother’s repeated efforts to reduce or eliminate
     her support obligation on the basis of unsupported medical
     claims[,2] her motive is questionable. Even giving Mother the
     benefit of doubt, however, her efforts to mitigate the lost income
     are severely deficient. At the de novo hearing, Mother presented
     no evidence of any attempts to mitigate her lost income between
     entry of the October 2016 [o]rder and the filing of her June 2017
     [p]etition for [m]odification. Instead, she asserted that, once she
     was released to work as of May 26, 2017[,3]she gained steady
     employment as a server for the Concourse earning hourly wages
     of $7.50. Mother’s pay stubs indicate that she commenced her
     employment in June of 2017, after the filing date of her [p]etition
     for [m]odification. See Exhibit A. Even considering this effort of
     Mother[] to mitigate her lost income, calculations from her
     Chrisbritt Company, LLC Earnings Statements, indicate that from
     June 18, 2017 through December 30, 2017, Mother worked only
     235.25 hours, for an average of 8 hours per week. The only other
     employment that Mother attempted in 2017 was 54 hours working
     for Sara’s Ice Cream Pub in July of 2017 where she earned $7.25
     hourly. See Exhibit A. Mother quit her job at Sara’s as she did
     not feel that it paid enough. Accordingly, even giving Mother the
     benefit of looking at all of 2017, the entirety of her mitigation
     efforts consisted of two minimum wage food service jobs with an
     average of only 10 working hours per week.4 While assessment
     of an earning capacity is not necessarily warranted for the life of
     the support obligation, Mother’s deceit regarding her reasons for
     reduction in income coupled with her very minimal mitigation
     efforts simply do not warrant modification of her support
     obligation. Simply stated, the evidence indicates that Mother has
     put forth minimal effort to find jobs paying more than $22.00 less
     than her earning capacity and then worked at those low[-]wage
     jobs for only 1/5 of the time devoted to an average work week.
     Such meager effort is consistent with a willful failure to obtain
     appropriate employment, continuing the need for the assessed
     earning capacity. See Pa.R.C.P. 1910.16-2(d).

         2 Not only have her claims been unsupported but
         evidence has shown that Mother simply is not credible.
         See for example, November 26, 2014, December 10,

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            2015 and December 19, 2016 [o]pinions of the
            undersigned finding that Mother failed to return to work
            despite release by her physician, she was consistently
            denied disability payments, Mother testified that she
            “forgot” to see a doctor following the alleged debilitating
            accident, and photographs documented Mother hopping,
            kicking and crawling at Tae Kwon Do while allegedly
            disabled.

            3 As previously detailed, Mother is not credible on her
            claims of inability to work.

            4  The only evidence of additional attempts at
            employment is far beyond the scope of Mother’s June 9,
            2016 [p]etition. Specifically, Mother’s testimony and pay
            stubs indicate that she left her employment at the
            Concourse in May of 2018 to work for Erie Homes for
            Children and Adults where she earns $11.40 per hour.
            Even these pay stubs show only inconsistent part-time
            hours resulting in a 2018 W-2 Statement of only
            $6,533.64 for the entire year.

Id. at 2-4. Additionally, the court responded to Mother’s assertion that her

support obligation should be reduced because she has custody of the child

fifty percent of the time in the summer. Despite the summer schedule, the

court explained that over a period of a year, Father exercises custody 67% of

the time.       Moreover, with reliance on Pa.R.C.P. 1910.16-4(c), the court

concluded that “a reduction in the basic support obligation does not ordinarily

occur unless the child spends 40% or more of his time during the year with

the obligor parent.” Id. at 4. Accordingly, the trial court denied Mother’s

request for modification of the child support order.




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       Mother now appeals to this Court and raises the following issues for our

review, which we reproduce verbatim:2

          1. Did the court err in determining that the defendant’s claim
             was without merit?

          2. Did the court err in holding defendant by law at an erning
             capacity of wages from a prior employment ending in 2015
             (General Electric) that has not and is not obtainable at this
             point in time. In conjunction to the orders dated from
             9/02/15 andde novo hearing held on 10/22/15 and
             continued consistently in 2016, 2017, 2018, and to current
             (2019). When by law Erie County Court had the capability
             to review and change it to reasonable and more appropriate
             earning capacity that is obtainable in Erie County?

          3. Did the court err in affirming and holding a decision based
             of biasness granted from the court itself and past conference
             officier’s belief differences and non-correlating past and
             present experiences.

          4. Did the court err in not reviewing the calculating of the
             support and adjusting appropriate modification in reduction
             in the support order with the 50/50 custody?

Mother’s brief at 3-5 (unnumbered).

       When addressing these types of issues, we are guided by the following:

              [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
              the 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
____________________________________________


2 Mother is identified as the defendant in the trial court’s caption because
Father had initially filed the complaint for child support in December of 2011.
Mother continues to identify herself in her brief as the defendant.

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           manifestly unreasonable or the product of partiality,
           prejudice, bias or ill will, discretion has been abused.

     Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations
     omitted). Furthermore, this Court:

           must accept findings of the trial court that are
           supported by competent evidence of record, as our
           role does not include making independent factual
           determinations. In addition, with regard to issues of
           credibility and weight of the evidence, this Court must
           defer to the trial judge who presided over the
           proceedings and thus viewed the witnesses first hand.

     Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008).
     “When the trial court sits as fact finder, the weight to be assigned
     the testimony of the witnesses is within its exclusive province, as
     are credibility determinations, [and] the court is free to choose to
     believe all, part, or none of the evidence presented.” Stokes v.
     Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super.
     2001), appeal denied, … 797 A.2d 915 (Pa. 2002). “[T]his Court
     is not free to usurp the trial court’s duty as the finder of fact.”
     Isralsky v. Isralsky, 824 A.2d 1178, 1190 (Pa. Super. 2003)
     (quoting Nemoto v. Nemoto, … 620 A.2d 1216, 1219 (Pa. Super.
     1993)).

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009).

     Specifically relating to modification of child support obligations, we rely

on Ney v. Ney, 917 A.2d 863 (Pa. Super. 2017), wherein this Court stated:

     “Where a party voluntarily accepts a lower paying job, there
     generally will be no effect on the support obligation.” Pa.R.C.P.
     1910-16-2(d)(1). “To modify a support obligation based upon the
     reduced income, a petitioner must first establish that the
     voluntary change in employment which resulted in a reduction of
     income was not made for the purpose of avoiding a child support
     obligation and secondly, that a reduction in support is warranted
     based on petitioner’s efforts to mitigate any income loss.” Grimes
     v. Grimes, … 596 A.2d 240, 242 ([Pa. Super.]1991); accord
     Dennis v. Whitney, 844 A.2d 1267, 1269 (Pa. Super. 2004).




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              Effectively, [an] [a]ppellant “must present evidence
              as to why he or she voluntarily left the prior
              employment and also as to why the acceptance of a
              lower paying job was necessary.” Id. Where a party
              willfully fails to obtain appropriate employment, his or
              her income will be considered to be equal to his or her
              earning capacity.        Pa.R.C.P. 1910.16-2(d)(4).    A
              determination of earning capacity must consider the
              party’s age, education, training, health, work
              experience, earnings history, and child care
              responsibilities.

Ney, 917 A.2d at 866 (quoting Dennis, 844 A.2d at 1269).

        We begin our discussion relating to the issues Mother has raised, noting

that Mother has failed in issues 1, 3 and 4 to provide sufficient argument that

is understandable and Mother’s brief does not contain any case citations

and/or citations to the record. See Pa.R.A.P. 2119. As for Mother’s first issue,

her argument consists of two sentences, essentially alleging that the trial court

allowed no rebuttal and did not correctly determine the truth of the evidence.

        Mother’s second issue relies on the language contained in Pa.R.C.P.

1910.16-2(d)(4),3 and then appears to simply argue that due to her medical

____________________________________________


3   Rule 1910.16-2(d)(4) states:

        (4) Earning Capacity. If the trier of fact determines that a party
        to a support action has willfully failed to obtain or maintain
        appropriate employment, the trier of fact may impute to that party
        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. In order for an earning capacity to
        be assessed, the trier of fact must state the reasons for the
        assessment in writing or on the record. Generally, the trier of fact



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restrictions she has not been able to find appropriate employment equal to

her earning capacity. To support this assertion, Mother cites the Ney case,

wherein the trial court considered and relied on its own internet job search for

appropriate employment for the father, who it found failed to seek such

employment. In Ney, this Court reversed the trial court’s order, concluding

that other than the court’s own internet search, no evidence appeared in the

record that supported a finding that the father had failed to make reasonable

efforts to find appropriate employment. Id. at 868. Here, as found by the

trial court, Mother relied on the continuation of questionable medical claims

and failed to present any evidence of her attempts to mitigate her lost income.

Most telling is the trial court’s finding that “even giving Mother the benefit of

looking at all of 2017, the entirety of her mitigation efforts consisted of two

minimum wage food service jobs with an average of only 10 working hours

per week.” TCO at 3.

       Turning to Mother’s third issue, the following contains the entirety of her

argument, which states verbatim:

       The Honorable lower Court had set a tone to already had her mind
       made up to the outcome of the Hearing proceedings. The Actual
       Facts speaks for itself and if properly recalculated with the 50/50
____________________________________________


       should not impute an earning capacity that is greater than the
       amount the party would earn from one full-time position.
       Determination of what constitutes a reasonable work regimen
       depends upon all relevant circumstances including the choice of
       jobs available within a particular occupation, working hours,
       working conditions and whether a party has exerted substantial
       good faith efforts to find employment.

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      custody the decision would have been over              turned   and
      modification in reduction will be the outcome.

Mother’s brief 21-22 (unnumbered).

      Lastly, Mother argues the following with regard to issue 4, stating

verbatim:

      The Honorable lower Court had the ability to calculate with the
      New employment current lower wages and chose to keep the
      calculation of the higher past employer (General Electric) wages
      as the current earning capacity, that is not valid, as then added in
      the other information, in the Trier of Fact, of the correct lower
      wages at that said time, see attached hereto as Exhibit “D”. The
      Honorable lower Court has the right and responsibility to adjust,
      modify, suspend, and terminate an Order. The Honorable lower
      Court had all the opportunity to look into what was needed to be
      done to bring the appropriate calculation of the facts presented
      and make the adjustment as needed.

Id. at 22-23 (unnumbered).

      It appears that Mother is simply arguing that the trial court’s findings of

fact and credibility determinations are incorrect. In other words, Mother is

essentially arguing that the court should have found credible her testimony

relating to her alleged medical problems, which the court found had not

continued to the essential period of time in question. Specifically, the court

mentioned the questionable document from a chiropractor, the fact that

Mother was given a medical release to work, and the pictures evidencing her

participation in a Tae Kwon class that were submitted into evidence. Mother

overlooks this Court’s standard of review that compels us to defer to the trial

court’s factual findings so long as they are supported by the record.        See

Mackay, 984 A.2d at 533 (stating that this Court “must accept findings of the

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trial court that are supported by competent evidence of record” and that we

are “not free to usurp the trial court’s duty as the finder of fact”). Our review

of the record reveals that the trial court’s findings are supported by the record.

Additionally, we rely on the court’s explanation relating to Mother’s assertion

that the summer 50/50 custody schedule does not overcome the 67% time in

Father’s custody versus Mother’s 33% custody time. See Pa.R.C.P. 1910.16-

4(c)(1) (stating that “[w]hen the children spend 40% or more of their time

during the year with the obligor, a rebuttable presumption arises that the

obligor is entitled to a reduction in the basic support obligation to reflect this

time”). Therefore, we conclude there is no basis upon which to reverse the

trial court’s decision and Mother has not convinced us otherwise.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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