J-A13008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.M.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

T.M.,

                            Appellant                No. 905 WDA 2015


                   Appeal from the Order Dated May 12, 2015
               In the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD10-00620-016


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                               FILED JULY 11, 2016

        Appellant, T.M. (“Father”), appeals pro se from the order entered on

May 12, 2015, modifying his child support obligation and denying his

exceptions to the hearing officer’s recommendation. We affirm.

        The factual background and procedural history of this case are as

follows. Father and C.M. (“Mother”) have one minor child, H.M. (“Child”).1

Mother has primary custody of Child.


        The parties had a child support hearing before Hearing Officer
        Bach on October 15, 2012. Father was assigned an earning
        capacity of $1,822.00 per month based on his income from
        employment in car sales. The [h]earing [o]fficer recommended
        that Father pay $453.26 per month in child support. . . . Father
____________________________________________


1
  So as to protect the identity of Child, we refer to the parties by their
initials. We amended the caption accordingly.
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       filed exceptions to Hearing Officer Bach’s recommendations and
       argued that he was improperly assigned an earning capacity.
       Father’s exceptions were dismissed by the [c]ourt and the
       [h]earing [o]fficer’s recommendations were adopted as a final
       order of the[c]ourt. . . .

       Father filed a [p]etition to [m]odify [c]hild [s]upport and a
       hearing was held in front of Hearing Officer Bach on November
       21, 2014. Father claimed that he was entitled to a reduction in
       child support due to a reduction in his income. Following the
       hearing, the [trial c]ourt [twice ordered] Father to produce his
       income information from his recent employer, Day Toyota. On
       January 28, 2015, the [h]earing [o]fficer issued a
       recommendation that assigned Father an earning capacity of
       $3,432.00 per month and recommended that Father pay
       $597.08 per month in child support. Father’s earning capacity
       was based on one year of Father’s actual income during his
       employment with Day Toyota.

       Father   filed  [e]xceptions   to   the   [h]earing   [o]fficer’s
       [r]ecommendations dated January 28, 2015. Oral argument []
       was held on May 4, 2015. At [oral argument], Father argued
       that he was improperly assigned an earning capacity and that his
       earning capacity was miscalculated. On May 12, 2015, Father’s
       exceptions were denied and the [h]earing [o]fficer’s
       [r]ecommendations were adopted[.]

Trial Court Opinion, 8/10/2015, at 2-3. This timely appeal followed.2

       Appellant presents three issues for our review:

       1. Was the trial court biased against Father?

       2. Did the trial court abuse its discretion in setting Father’s
       earning capacity at $3,432.00 per month and requiring him to
       pay $597.08 per month in child support?

____________________________________________


2
 On June 10, 2015, Father filed a concise statement of errors complained of
on appeal contemporaneously with his notice of appeal. See Pa.R.A.P.
1925(b). On August 10, 2015, the trial court issued its Rule 1925(a)
opinion.



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      3. Does setting an earning capacity violate the Pennsylvania
      Constitution?

See generally Appellant’s Brief at 13-17.

      In his first issue, Father argues that the trial court showed unfair bias

in Mother’s favor.   A party seeking disqualification of the trial court must

raise the objection “at the earliest moment.” Lomas v. Kravitz, 130 A.3d

107, 120 (Pa. Super. 2015).     In this case, Father failed to seek the trial

court’s recusal and the actions that he complains of were known to him prior

to filing his notice of appeal. Accordingly, Father has waived any argument

that the trial court was biased by failing to seek the trial court’s recusal.

See Pa.R.A.P. 302(a).

      In his second issue, Father argues that the trial court erred in

awarding Mother $597.08 per month in child support.          We review child

support awards for an abuse of discretion. Spahr v. Spahr, 869 A.2d 548,

551 (Pa. Super. 2005). We may only reverse the trial court’s determination

when it cannot be sustained on any valid ground. Id. Finding an abuse of

discretion “requires proof of more than a mere error in judgment but rather

evidence that the law was misapplied or overridden, or that the judgment

was manifestly unreasonable or based on bias, ill will, prejudice, or

partiality.” Id.

      Child support payments are awarded based on guidelines using the

parties’ monthly net income.     Pa.R.C.P. 1910.16-2.     If a party “willfully

fail[s] to obtain or maintain appropriate employment,” support payments

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can be set based upon the party’s earning capacity.       Pa.R.C.P. 1910.16-

2(d)(4). An earning capacity is the amount a party could realistically earn

under the circumstances.    Haselrig v. Haselrig, 840 A.2d 338, 340 (Pa.

Super. 2003), citing Myers v. Myers, 592 A.2d 339, 343 (Pa. Super. 1991).

Among the factors that must be considered when determining a party’s

earning capacity are age, education, training, work experience, health, and

earning history.   Pa.R.C.P. 1910.16-2(d)(4).    A court may also consider

other factors, such as jobs available within a certain occupation and the

effort a party has exerted to find employment.      Id.   Generally, a party’s

earning capacity will not be altered if he or she “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.” Pa.R.C.P.

1910.16-2(d)(1).

     Father argues that his earning capacity should be based on his current

income as a paralegal and his earning capacity was improperly calculated

based on his prior employment.       However, when a party’s reduction in

income is voluntary and the party does not attempt to mitigate their loss of

income, the earning capacity of that party is unchanged.      Hearing Officer

Bach found that Father earned an average of $3,348.00 per month while




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employed at Day Toyota from April 2013 to April 2014.3 Father, however,

only earns $15.00 per hour, or approximately $2,600.00 per month, in his

current job as a paralegal.              Father testified that despite his prior

employment in car sales for several years earlier, only two out of the 260

positions he applied for were car sales positions. N.T., 11/21/2014, at 30-

31. Thus, Hearing Officer Bach concluded that he did not make reasonable

efforts to mitigate his loss of income.          She therefore assigned him an

earning capacity, as he was capable of earning a higher income in car sales.

Because Father failed to produce complete income documentation from Day

Toyota, Hearing Officer Bach used a full year of his actual earnings from Day

Toyota to calculate a monthly average earning capacity.

       This Court’s decision in Baehr v. Baehr, 889 A.2d 1240 (Pa. Super.

2005) presented a similar situation. In that case, a father was assigned an

earning capacity based on his 12-year work history in the information

technology field, instead of his current job as an independent contractor,

making significantly less. The court assigned the father this earning capacity

after finding he did not make a reasonable effort to find a job within the

information technology field. Id. at 1245. We affirmed assignment of an

earning capacity under these circumstances.


____________________________________________


3
 The record supports this determination. N.T., 11/21/2014, at 15-16, 26-
27.



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      Here, Father only applied to            two car sales jobs, despite        his

employment in the business for several years prior.         N.T., 11/21/2014, at

30-31. This does not constitute a reasonable effort to find employment in

his field. When a party assumes a lower paying job or willfully fails to obtain

appropriate   employment,    his   or    her    support   payment   obligation    is

determined based on an earning capacity, not actual income.           Woskob v.

Woskob, 843 A.2d 1247, 1254 (Pa. Super. 2003).              Further, after Father

accepted the paralegal job, he stopped looking for jobs in car sales

altogether. Trial Court Opinion 8/10/2015, at 6. This shows Father’s willful

failure to obtain proper employment consistent with his abilities.           Thus,

although Father contends that the trial court abused its discretion in basing

his earning capacity on his employment at Day Toyota, his earning capacity

was correctly set based on the hearing officer’s finding that Father did not

make a reasonable effort to find work based on his abilities and prior work

history.

      Father also argues that the trial court erred in not considering

unemployment     compensation      when    calculating    his   earning   capacity.

However, unemployment compensation calculations are not binding on trial

courts in child support proceedings. See Ewing v. Ewing, 843 A.2d 1282,

1286-1287 (Pa. Super. 2004). Therefore, the trial court was not required to

accept findings related to Father’s unemployment compensation to calculate

his earning capacity.


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J-A13008-16


       In his third issue, Father argues that the calculation of his earning

capacity based on his previous employment in car sales is a violation of the

Pennsylvania Constitution. He argues that it violates his right to pursue his

own happiness by only allowing him to seek employment at a car dealership.

Appellant’s Brief at 15.      This issue is waived. Failure to include an issue in

the concise statement waives the issue for appellate review. Karn v. Quick

& Reilly, 912 A.2d 329, 335 (Pa. Super. 2006), citing Commonwealth v.

Lord, 719 A.2d 306 (1998). Father filed a concise statement which listed

three issues.4 Father did not mention the constitutional issue in his concise

statement. Thus, the issue is waived.5 Accordingly, Appellant is not entitled

to relief on any of his three claims of error.

       Order affirmed.




____________________________________________


4
  Specifically, Father’s concise statement raised the following issues:
whether the trial court erred in denying his request for a reduction in
support, whether the trial court considered all the facts of the case, and
whether the trial court was biased against Father.        Father’s Concise
Statement, 6/10/15, at 1.
5
  Even if we were to reach the merits of this issue, Father would not be
entitled to relief. Father is free to take any job he wishes, but he must also
support his child. Despite his apparent desire to leave the car sales field, to
receive a modification in support based on actual earnings, he must
“establish he attempted to mitigate his income loss.” Grimes v. Grimes,
596 A.2d 240, 243 (Pa. Super. 1991). He did not do so here. With a child
to support, he cannot seek a job with a salary that meets his personal needs
alone. Id.



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J-A13008-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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