J-A28027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEVIN ROSCIOLI,                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

JILL ROSCIOLI,

                            Appellee                 No. 802 EDA 2016


                    Appeal from the Order February 24, 2016
            In the Court of Common Pleas of Montgomery County
           Civil Division at No(s): 2014-21134, PACSES 562114721


BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 05, 2017

       This is an appeal by Kevin Roscioli (“Father”) from a child support

order for his three children, son K.R., age nineteen,1 son B.R., age fifteen,

and daughter S.R., age thirteen, with his wife, Jill Roscioli (“Mother”). We

affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   K.R. is now an emancipated adult. Any order of support does not apply to
him and is moot. See Kotzbauer v. Kotzbauer, 937 A.2d 487, 489 (Pa.
Super. 2007) (“[A]s a general rule, the duty to support a child ends when
the child turns eighteen or graduates from high school.”). The trial court per
curiam entered an order on August 15, 2016, stating that K.R. “is
administratively emancipated effective June 13, 2016, the date of his high
school graduation[,]” and such emancipation “does not change the amount
of the monthly support obligation.” Order, 8/15/16.
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       Mother filed a complaint in support on June 24, 2014, and the common

pleas court entered an interim support order on July 24, 2014. Following an

October 15, 2014 hearing before a support master (“Master”), the trial court

approved the support order recommended by the Master and entered an

order of support on October 20, 2014.2           On November 24, 2014, the trial

court entered an addendum to the support order by agreement of the

parties. The ensuing procedural history as summarized by the trial court is

as follows:

             On 3/6/2015, the parties entered into a Stipulation in
       Support that was entered as a Court Order by Judge R. Stephen
       Barrett. This Stipulation provided that the 10/20/2014 Support
       Order, as amended by the 11/24/2014 Support Order, shall
       constitute a Final Order in Support.

             The 10/20/14 Support Order approved the Support
       Master’s Recommendation.        The Support Master found
       Defendant-Mother’s and Plaintiff-Father’s monthly net earning
       capacity to be $2,448.11 and $3,190.52, respectively. The
       Order of 10/20/2014 directed Plaintiff-Father to pay monthly
       child support of $1,099.70 (this amount includes an offset of
       $154.81 for medical insurance). The 10/20/2014 Support Order
       was effective 6/24/2014.

              The 11/24/2014 Support Order increased Plaintiff-Father’s
       child support obligation to $1,126.70/month.

            Plaintiff-Father filed a Petition for Modification of Support
       on 6/30/2015. On 9/17/2015, Defendant-Mother filed Support
       Exceptions to the Support Master’s Recommendation.


____________________________________________


2
  The notes of testimony from this hearing are not in the record, and this
Court’s attempt to obtain them was unsuccessful.



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             On 2/24/2016, the undersigned held a hearing regarding
       Defendant-Mother’s Support Exceptions. At the conclusion of
       the hearing, the Court sustained Defendant-Mother’s Support
       Exceptions and dismissed Plaintiff-Father’s Petition to Modify
       Support filed on 6/30/2015 on the basis that he had failed to
       meet his burden of demonstrating a substantial change in
       circumstances from the entry of the 3/6/2015 Order to his filing
       the Petition to Modify on 6/30/2015.

              Plaintiff-Father filed a timely appeal on 3/17/2016. By
       Order dated 3/24/2016, we directed Plaintiff-Father to file a
       Concise Statement of Matters Complained of on Appeal.
       Plaintiff-Father filed his Concise Statement on 4/11/2016.

Trial Court Opinion, 6/1/16, at 1–2.

       In its findings of fact, the trial court noted that Father, age fifty,

resides with his eighty-nine-year-old mother, and Mother resides with the

children and her mother.3 Trial Court Opinion, 6/1/16, at 2; N.T., 2/24/16,

at 9. Father stopped working as a real estate agent on June 4, 2014, the

date of the parties’ nineteenth wedding anniversary. Trial Court Opinion,

6/1/16, at 2; N.T., 2/24/16, at 8. Due to an incident that night, a protection

from abuse (“PFA”) order was entered for Mother and the children against

Father, and criminal charges, which included aggravated assault against a

police officer, were filed against Father.4      N.T., 2/24/16, at 11.   Father

claims he suffered a nervous breakdown on June 4, 2014, and his mental
____________________________________________


3
  It is unclear from the record and the briefs whether Mother moved in with
her mother or her grandmother.
4
   The PFA order expires on January 26, 2018. It provides that Father may
not have contact with the children unless Mother gives written agreement.
Trial Court Opinion, 6/1/16, at 2; N.T., 2/24/16, at 11.



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condition has continued to deteriorate since that time. Id. at 10; Father’s

Brief at 10.

       Father raises the following issues on appeal:

              1. Did the Court below commit reversible error and abuse
       its discretion in sustaining [Mother’s] Exceptions from the Order
       of Court dated September 10, 2015, based upon the
       recommendation of the Conference Officer in Support?

               a.   Did the Trial Court abuse its discretion and
               commit error of law in ordering [Father] to pay Child
               Support in the sum of One Thousand One Hundred
               Twenty Six Dollars Seventy Cents ($1,126.70) per
               month because [Father] has no earning capacity, is
               unable to pay, has no known income or assets, and
               there is no reasonable prospect that [Father] will be
               able to pay in the foreseeable future as found by the
               Support Conference Officer, Patricia A. Coacher,
               Esquire[?]

               b. Did the Trial Court commit an abuse of discretion
               and commit an error of law in ordering [Father] to
               pay One Thousand One Hundred Twenty six Dollars
               Seventy Cents ($1,126.70) per month child support
               which violates the basic rule that an Order of
               Support must be fair and not confiscatory and must
               allow for the reasonable living expenses of the
               payor?

Father’s Brief at 3.5


____________________________________________


5
  Despite the breakdown of Father’s statement of the questions, he presents
his argument as a single issue in his brief, in violation of Pa.R.A.P. 2119(a)
(“The argument shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”).
Therefore, we will address Father’s argument in kind.



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      Our standard of review of a trial court’s decision in a support case is

well settled:

             “The principal goal in child support matters is to serve the
      best interests of the children through the provision of reasonable
      expenses.” R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013).
      Father has an absolute duty to provide for his three children
      financially even if it causes hardship or requires sacrifice.
      Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 638 (2003)
      (citation and internal quotations omitted) (“In a child support
      hearing, the main concern is for the welfare of the child. Each
      parent has a duty which is well nigh absolute to support his or
      her minor children and each may have to make sacrifices in
      order to meet this burden.”).

            We review a child support order for an abuse of discretion.
      J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015). “[T]his
      Court may only reverse the trial court’s determination where the
      order cannot be sustained on any valid ground.” R.K.J., supra.
      As this Court previously articulated, “An abuse of discretion is
      not merely an error of judgment, but if in reaching a conclusion
      the law is overridden or 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.” Id.

E.R.L. v. C.K.L., 126 A.3d 1004, 1006–1007 (Pa. Super. 2015).

      Furthermore:

      “Ordinarily, a party who willfully fails to obtain appropriate
      employment will be considered to have an income equal to the
      [party’s] earning capacity.” Pa.R.Civ.P. 1910.16-2(d)(4). The
      determination of a parent’s ability to provide child support is
      based upon the parent’s earning capacity rather than the
      parent’s actual earnings. See Kelly v. Kelly, 633 A.2d 218
      (1993).

Laws v. Laws, 758 A.2d 1226, 1229 (Pa. Super. 2000).

      The sole focus of Father’s argument is that, although he had a

substantial earning capacity in the past, particularly as of the date of


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separation and even thereafter on October 15, 2014, the date of the

Master’s hearing, he has been unable to work due to his mental condition

since that time. Father’s Brief at 13–14. Father maintains that the Master’s

findings failed to discuss Father’s mental and medical issues. Id. Pursuant

to a stipulation signed by the parties, the trial court entered an order on

March 6, 2015, stating that the October 20, 2014 support order, as

amended on November 24, 2014, “shall constitute a Final Order in Support.”

Father did not appeal the March 6, 2015 order.

      Father filed a counseled petition to modify support on June 30, 2015,

docketed on July 23, 2015. Apparently there was an evidentiary hearing on

September 9, 2015, but the notes of testimony are not in the record. There

was a support hearing before the court on February 24, 2015. Those notes

were added as a supplemental record. Father maintains that, as his counsel

argued to the court at that hearing, there must be some relation between

the support order and Father’s earning capacity.        Father’s Brief at 15.

Father claims that he should not have been limited to proving changed

circumstances dating from March 6, 2015, the date he signed the stipulation

of support and the court entered the concomitant order.            Rather, he

contends the court should have evaluated the changed circumstances before

that date. Father cites Commonwealth v. Vogelsong, 457 A.2d 1297 (Pa.

Super. 1983), in support of his claim that the court erred in failing to modify

his support obligation. Father’s Brief at 16.


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       Mother responds that because Father signed the stipulation on March

6, 2015, in light of the fact that he was not working then, the relevant date

to determine changed circumstances is after March 6, 2015. Mother points

out that the parties were scheduled for a support trial on her exceptions on

March 9, 2015, but they agreed to settle the matter by signing the March 6,

2015 agreed-upon order; thus, the March 9, 2015 trial was cancelled.

Mother’s Brief at 12–13. Regarding Father’s passing contention that the trial

court should have assigned him zero earning capacity, based on his

psychiatrist’s testimony,6 Mother maintains that the doctor’s testimony

actually supported the conclusion that Father’s mental state had not

deteriorated. Mother’s Brief at 14.

       The trial court held that Father did not sustain his burden of proving

that his circumstances had changed. The trial court pointed out that Father

was not working when he signed the stipulation and had not been working

for some time preceding March 6, 2015.           Thus, looking at the period

beginning when he signed the stipulation onward, there has not been a

change in circumstances. Specifically, the trial court stated:

              The parties voluntarily entered into the Stipulation in
       Support. The Notes of Testimony from 2/24/2016 reflect that
       Plaintiff-Father really has not worked since June, 2014, when
____________________________________________


6
   The deposition testimony of Dr. Daniel Hartman is in the reproduced
record but is not in the record certified to us on appeal. Although a
document is in a reproduced record, if it is not in the certified record, we will
not consider it. Interest of B.S., 923 A.2d 517 (Pa. Super. 2007).



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      Defendant-Mother informed Plaintiff-Father that she was taking
      the parties’ children and moving in with her grandmother. (N.T.,
      2/24/2016, pp. 32-34).

            Plaintiff-Father has failed to show any change in
      circumstances from the time of the Stipulation in Support
      (3/6/2015) or the 10/20/2014 Order to the filing of his Petition
      to Modify on 6/30/2015. Just as Plaintiff-Father was not working
      on 10/20/2014, he was not working on 3/6/2015.

            It appears that Plaintiff-Father is attempting a second bite
      at the apple. He did not have to enter the Stipulation in Support
      on 3/6/2015. He voluntarily did so. He must live with that
      agreement.

            Plaintiff-Father has failed to meet his burden             of
      demonstrating      a  material  and substantial change           in
      circumstances.

Trial Court Opinion, 6/1/16, at 5–6 (emphasis in original).

      We concur with the trial court and disagree with Father’s suggestion

that the trial court erred in failing to hold a hearing “as to what [Father’s]

earning capacity was” when it entered the March 6, 2015 order by

stipulation of the parties. Father’s Brief at 14. The parties entered into the

stipulation of support on March 6, 2015, and the court entered it as an order

the same day. The stipulation provided that the October 20, 2014 support

order, as amended by the November 24, 2014 support order, “shall

constitute a Final Order in Support.”     Order, 3/6/15.      The order further

provides that the stipulation “resolves the pending support litigation and the

hearing scheduled for March 9, 2015[,] shall be cancelled.” Id. Mother had

filed exceptions to the October 20, 2014 order, the parties were scheduled

for a support trial on the exceptions on March 9, 2015, but they agreed to

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settle the matter by signing the March 6, 2015 stipulation. Therefore, the

March 9, 2015 trial was cancelled. Father did not and cannot now challenge

the validity of the earning capacity he was ascribed in the October 20, 2014

order. As the trial court stated:

             Plaintiff-Father agreed to the Stipulation in Support dated
      3/6/2015. He filed his Petition to Modify Support on 6/30/2015.
      It is incumbent upon him to prove a change of circumstances
      between those two dates, which he has failed to do. Plaintiff-
      Father was not forced to sign the Stipulation in Support. Once
      he signed it, he is bound by it.

Trial Court Opinion, 6/1/16, at 10.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




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