J-A02032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MAUREEN HORESH                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DAVID A. GARRISON

                            Appellee                  No. 1946 EDA 2014


                  Appeal from the Order Entered June 11, 2014
                In the Court of Common Pleas of Chester County
                    Domestic Relations at No(s): 00764N2013
                                                 PACES NO. 328113980


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 28, 2015

        Appellant, Maureen Horesh (“Mother”), proceeding pro se, seeks

review of the trial court’s child support order, and challenges the trial court’s

determination of her earning capacity. We affirm.

        Mother and Appellee, David A. Garrison (“Father”), married on October

16, 1993. They have two children, one born in 1998 and the other in 1995.

The parties separated in May 2012. The children live with Mother; Father has

occasional contact with the children.

        Mother has an undergraduate degree in English from the University of

Pennsylvania, a certificate in Real Estate Development from New York

University, a Six Sigma certification,1 and a certificate in horticulture.
____________________________________________


1
    Six Sigma is a set of techniques and tools for process improvement.
(Footnote Continued Next Page)
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During the marriage, she owned and managed five real estate properties

containing many rental units. In addition, Mother was employed full-time

throughout the marriage until 2008. Father is an attorney with a solo

environmental law practice.

      On May 20, 2013, Mother filed a counseled complaint seeking support

for herself and the children. On July 1, 2013, the court ordered Father to pay

interim child support for $1,184.00 per month, effective June 20, 2013.2 No

support for Mother was ordered. Mother’s counsel was allowed to withdraw,

and Mother has proceeded pro se ever since.

      After   their     son’s   18th    birthday,   the   parties   stipulated   to   his

emancipation, and the court reduced the interim support order to $542.50

per month effective September 10, 2013. The court set arrears at

$1,624.55, and ordered that they be paid in full immediately.

      On April 8, 2014, the court held a hearing on Mother’s support

complaint. The parties’ joint 2012 tax return was admitted into evidence.

Mother testified that she works 30 to 45 hours per week managing her now

seven properties. She further testified that prior to 2008, she earned

$60,000 to $100,000 annually in salary, commissions, and bonuses from her

employment with GE Health Care and her other sales jobs. Mother did not
                       _______________________
(Footnote Continued)


2
  The interim support award was based on the court’s determination that
Mother’s monthly net income was $9,353.47 and Father’s monthly net
income was $10,006.13. Arrears were to be determined later.



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provide competent evidence of her 2013 or 2014 financial records, despite a

court order to do so. She also failed to provide adequate documentation of

the expenses of operating and maintaining her real estate holdings.3

       Denise Cordes, a vocational expert who had interviewed Mother at

defense counsel’s request, testified extensively with regard to Mother’s

earning capacity. She stated that Mother had informed her that, throughout

the marriage and up to 2008, she had worked in various full-time positions,

including as a mortgage lender, a rental agent, an agent for GE Fleet, and a

sales person of medical equipment for GE Healthcare. While at GE, Mother

obtained her Six Sigma certification. Mother managed five rental properties

at the same time that she was employed full-time. Ms. Cordes also testified

that GE Healthcare terminated Mother’s employment at the end of 2007.

With her severance payment, Mother purchased two more rental properties

and then decided to take time off from working full-time to tend to her

house and children. She attended horticulture school and became certified as

a horticulturalist. At the time of the interview, Mother was working part-time

and seasonally as a horticulture assistant at a garden center, earning $17.00

per hour at maximum 32 hours per week.4 Ms. Cordes opined that with
____________________________________________


3
   Mother did submit a log in which she recorded her activities and time
allegedly spent in managing her properties.
4
  Mother informed the court in April 2014 that she had resigned from her
horticulture job, allegedly to manage her properties and tend to the
children’s needs. See Appellant’s Brief at 12.




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Mother’s extensive background in mortgage lending, sales, and real estate

management, and considering her break in relevant employment, her

earning capacity was in the median range of $32,870 to $47,250 annually.

See Notes of Testimony (“N.T.”) Hearing, 4/8/14, at 64; Vocational Analysis,

dated 4/6/14, at 5-6.

      On June 11, 2014, the court concluded that Mother has an earning

capacity of $47,250 per year, in addition to the income she derives from her

rental properties. See Trial Court Opinion, dated 6/11/14, at 7. Using the

parties’ joint 2012 Federal tax return as a “baseline,” the court opined that

Mother’s gross income in 2013 was $192,532, and projected it to be

$216,157.00 in 2014. Id., at 3.     After consideration of Father’s profit and

loss statements for 2013 and the parties’ 2012 tax return, the court

concluded that Father’s gross income was $139,307.02, in 2013, and

projected that it would be the same for 2014. The court also determined that

an upward deviation of 30% from the support guidelines was warranted due

to Father’s lack of custodial time with the children. Thus, applying the child

support guidelines, Pa.R.C.P. 1910.16-2 and 1910.16-3, the court ordered

Father to pay $1,484.74/month ($1,142.11 + 30%) for two children for the

period May 20, 2013 to September 9, 2013, and $1,056.38 per month

($812.60 + 30%) for the period September 20, 2013 to December 31, 2013.

The court ordered Father to pay $1,030.72 per month ($792.86 + 30%) for

the support of one child, effective January 1, 2014, with “[a]rrears, if any, to

be paid at the rate of $50.00 per month.”          Trial Court Order, entered

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6/11/14. The court denied Mother’s request for spousal support. After the

denial of her post-hearing motion, Mother appealed to this Court.5

       Mother raises the following questions for our resolution.

       a. Whether the lower court abused its discretion and committed
          an error of law in calculating the mother’s earning capacity?

       b. Whether the lower court abused its discretion and committed
          an error in imputing additional income to the mother contrary
          to the overwhelming evidence before the court?

Appellant’s Brief at 7-8.

       Our standard of review of support orders is well-settled. A support

order will not be disturbed on appeal unless the trial court failed to consider

properly the requirements of the Rules of Civil Procedure governing actions

for support or abused its discretion in applying those rules. See Morgan v.

Morgan, 99 A.3d 554, 559 (Pa. Super. 2014), appeal denied, 113 A.3d 280

(Pa. 2015). “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.” Id. (citation omitted).

____________________________________________


5
  After Mother filed an appeal, this Court issued an order in which we
concluded that, in accordance with Pa.R.A.P. 341(b)(1), only issues
regarding the child support portion of the order were immediately appealable
because a divorce decree has not been entered and all economic claims have
not been resolved. See Order, 8/20/14 (citing Fried v. Fried, 501 A.2d 211
(Pa. 1985) (holding that issues are reviewable after entry of a divorce
decree and resoluation of all economic issues); Hrinkevich v. Hrinkevich,
676 A.2d 237 (Pa. Super. 1996) (holding that notwithstanding a pending
divorce action, child support orders are immediately reviewable)).



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      “Both parents have an equal obligation to support their children in

accordance with the capacity and ability of each to do so.” Sutliff v. Sutliff,

489 A.2d 764, 771 (1985) (citations omitted).

      [A] person’s support obligation is determined primarily by the
      parties’ actual financial resources and their earning capacity.
      Although a person’s actual earnings usually reflect his earning
      capacity, where there is a divergence, the obligation is
      determined more by earning capacity than actual earnings.
      Earning capacity is defined as the amount that a person
      realistically could earn under the circumstances, considering his
      age, health, mental and physical condition, training, and
      earnings history.

Baehr v. Baehr, 889 A.2d 1240, 1244-45 (Pa.Super. 2005 (citation

omitted). See also Pa.R.C.P. 1910.16-2(d)(4) (setting forth factors for

consideration so that the trier of fact may impute an income equal to the

party’s earning capacity if it determines that the party has willfully failed to

obtain or maintain appropriate employment). “Where a party assumes a

lower paying job or willfully fails to obtain appropriate employment, the

support obligation is determined by his [or her] assessed earning capacity. ”

Baehr, 889 A.2d at 1245 (citation omitted).

      Mother avers that the trial court abused its discretion in determining

her annual earning capacity to be $47,250, in addition to the income she

receives from her rental properties. She argues that because she manages

seven properties containing 55 rental units, she does not have time to obtain

and hold a full-time job, manage the home, and care for the children. See

Appellant’s Brief at 24.


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J-A02032-15


     The trial court made the following observations with respect to

Mother’s earning capacity.

     The objective evidence is that [Mother] was gainfully employed
     outside the marital residence during 1995-2008[.] … She had
     child care and household duties to meet in addition to the work
     requirements of her employers. Additionally, she found/made
     time to manage her rental properties. Clearly, [Mother] is an
     accomplished multi-tasker.

     Now that she is separated, has an emancipated son and a 16-
     year-old daughter, she asserts that she should not be required
     to revert to her former multi-tasking self. In fact, she recently
     quit her part-time job on the ground that she could not work and
     meet her other obligations to the household, etc.

     [Mother] was evaluated by vocational specialist, Ms. Cordes.
     When afforded the opportunity to reveal her current involvement
     in leasing and managing real estate, she failed to do so.
     Accordingly, Ms. Cordes’s report … was flawed as she envisioned
     [Mother] as needing some degree of job retooling. Once Ms.
     Cordes was made aware of [Mother’s] extensive background,
     she opined that the wage estimates she had given were wrong
     and should be much higher.

     Pursuant to Pa.R.C.P. 1910.16-2(d)(4), I find that [Mother] has
     additional earning capacity at least equal to the median amount
     set by Ms. Cordes, to wit, $47,250.00. [citing Vocational
     Analysis, dated April 5, 2014, at 6]. I so conclude as:

         a) [Mother] is 50 years old, appears to be in good health and
            functions at a high level intellectually;

         b) She has specialized and hands on training in real estate
            development;

         c) She has hands on experience in leasing and managing real
            estate;

         d) She has a history of full[-]time employment while
            overseeing her personal real estate investments and the
            needs of her household and children;


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           e) Her 16[-]year[-]old daughter does not, in my view,
              present any child care issues that preclude full[-]time
              employment; [and]

           f) She has chosen not to work solely for personal reasons.

       I see no reason why [Mother] should exert less effort in
       maximizing her income for the benefit of her children post
       separation than she did pre separation.

Trial Court Opinion, entered 6/11/14 at 3-4.

       Our review of the certified record indicates that the trial court did not

abuse its discretion in setting Mother’s earning capacity at $47,250 annually.

The court considered the factors of age, education, training, health, work

experience, earnings history, and child care responsibilities as set forth in

Pa.R.C.P. 1910-16-2(d)(4). Based on Mother’s prior experience, the court

rejected Mother’s testimony and other evidence that she could not work at a

full-time job as long as she was managing her rental properties. Because the

trial court properly considered the requirements of Rule 1910.16-2(d), we

may not disturb its determination. See Morgan, 99 A.3d at 559 (declining

to reverse a support order because the trial court had properly consider the

requirements of Rule 1910.1 et seq.).6

____________________________________________


6
  In its Rule 1925(a) opinion, the trial court stated that arrears had not been
set at the time of its June 11, 2014 order and requested that we remand so
that it could adjust the payment of arrears from $50.00 per month to “a
more reasonable recoupment amount.” Trial Court Opinion, entered
8/11/14, at 2. Mother identified the issue of arrears in her Rule 1925(b)
statement, see Rule 1915(b) statement, 8/5/14, at ¶ 3 but did not raise this
issue in her appellate brief. See Appellant’s Brief at 7 n.1 (“Mother will not
(Footnote Continued Next Page)


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J-A02032-15


      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




                       _______________________
(Footnote Continued)

presently address this issue in this brief….”). Mother is under the impression
that the trial court’s statement about the arrears in its opinion resolves the
issue in her favor. See id. That is a mistaken impression. See, e.g.,
Durning v. Balent/Kurdilla, 19 A.3d 1125, 1127 n.2 (Pa. Super. 2011)
(finding issues raised in Rule 1925(b) statement, but not raised in appellate
brief waived); Branch Banking and Trust v. Gesiorski, 904 A.2d 939,
942 (Pa. Super. 2006) (“As our supreme court has explained, any layperson
choosing to represent herself in a legal proceeding must, to some reasonable
extent, assume the risk that her lack of expertise and legal training will
prove her undoing.”). As Mother did not raise an issue about arrears, nor
even present any argument on this issue, it is not before us. We therefore
cannot comply with the trial court’s request.




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