J-S40001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.K.A.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

M.B.Y.,

                          Appellee                   No. 2298 MDA 2013


               Appeal from the Order Dated November 27, 2013
              In the Court of Common Pleas of Lancaster County
                   Domestic Relations at No(s): 2005-00046
                           PACSES NO. 152103633


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 23, 2014

      J.K.A. (Mother) appeals from the order dated November 27, 2013, and

entered on December 6, 2013, that directed M.B.Y. (Father) to pay to



review, we affirm.




                                      Id. at 10. When addressing such issues,

we are guided by the following:
J-S40001-14


           [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 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).

     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
                  Stokes v. Gary Barbera Enterprises, Inc., 783
     A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723,

                                           Isralsky v. Isralsky,
     824 A.2d 1178, 1190 (Pa. Super. 2003) (quoting Nemoto v.
     Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1219 (Pa. Super.
     1993)).

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

     We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough opinion authored by the Honorable Leslie


                                    -2-
J-S40001-14


Gorbey of the Court of Common Pleas of Lancaster County, dated February

                                               -reasoned opinion properly

disposes of the issue(s) that have been raised by Mother. Accordingly, we

                                                         upport order on

that basis.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




                                  -3-
                                                                                 Circulated 08/29/2014 12:20 PM




  IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
       J.
       j(. tj-.     . DOMESTIC RELATIONS DIVISION

                       Plaintiff
                                                        Docket No. 2005-00046
           vs.
   i'I\ . 13' .   y.     ......                         PACSES Case No.    1521036i~...,
                                                                                   :-.
                                                                                                    <;:3
                                                                                                        Jr'
                                                                                                              l.::;
                                                                                                               ".:..::1"
                                                                                      co
                                                                                      .~                ~
                                                                                                                rn
                                                                                                                -'"\
                       Defendant                        SUPER. CT. NO.: 2298 MDA 2Q13 ~                          ;l~
                                                                                       ;::               01
                                                                                       '-'.-                       S.C:
                                                                                       8 ::::;:..
                                                                                       --:.,
                                                                                             ;. .- .                '.;J
                                                                                           :/;
. BY: LESLIE GORBEY, J.
                                      ORDERSU'R APPEAL
                                                                                               "   .-
                                       Procedural history
                                                                                      ;J.~.It •.
           This support matter was Initiated on January 6, 2005 when Plaintiff tll_ _lIInn.
                          '.            ..          .         .           m.~·Y

 ,.    7 (Mother) filed a supp.ort complaint against Defendant _ _• • • •
                                  .          m,~.~...
 (Father) fQr support of one child,                        , born '/In July. 2001. Over the

 intervening years, Mother filed a number of petitions for modification of support and the

 order was either modified or not modified by the court pursuant to the information

 presented. The instant Order resulted from the filing of a petition to modify On July 19,

 2013.

          A conference on the instant petition was held August 15, 2013 and the

 recommended Order was issued by the court on September 12, 2013, directing that

 Defendant was to pay $390.73 monthly in child support. The order contained an upward

deviation. Mother appealed this decision and a hearing de novo was held before the

 Court on November 27,2013. The Court entered a two tier order sustaining mother's

appeal, directing that the recommended order would be in effect through December 5,

2013. On December 6, 2013, a new order would become effective, obligating


                                      8         1
                                                                             Circulated 08/29/2014 12:20 PM




Defendant to pay $309.23 monthly for the support of• • • • • • This order was

calculated pursuant to the Guidelines and was based on earning capacities of $8.25/hr

for 25 hours per week for Plaintiff ($790.54 monthly net) and income for the defendant

of $400 per week gross ($1301.67 monthly !jet.)

       On December 26, 2013, Mother filed an appeal to the Pennsylvania Superior

Court, pursuant to which appeal this opinion sur appeal is being prepared.



                                     Factual history
                                                  ('11:5,11.
       Mother and Father are the parents'of                      , age 13. (N:T. 8)

Father exercises none of his custodial rights to the child, and hasn't seen him in three

years. (N.T. 11) Mother also has two other YOl,lnger children, but they have a different

father, who pays child support to Mother. (N.T. 10) At the time of the hearing, Mother

had no employment income. She had last been employed in 2007 at J. C. Penney as a

salesperson for a period of five to six months, making an hourly wage of $8.25. (N.T.

12). She left the job because she had no one to care for her youngest two children.

She has recently been looking for work, because her children are now all in school.

She is a high school graduate. (N.T. 9-11) Mother agreed that she should be given an

earning capacity of $8.25 per hour. (N.T. 15)

      Father worked for Jack Trier Moving for eight years at a seasonal job, getting

unemployment income in the off-season. (N.T. 23) Extrapolating over a year, he made

$11.75 per hour, averaging thirty hours per week when he worked. He left the position

in March of 2013 because new management had taken away certain benefits, reduced

his insurance, and had increased the amount of travel he would have to do, but offered

                               (3)          2
                                                                                Circulated 08/29/2014 12:20 PM




 him no increase in pay. (N.T. 20) Between March of 2013 and the conference, he

 engaged in three episodes of temporary eniployment cleaning debris, for which he

 received between $600 and $700. (N.T. 24) Since October 21,2013, he has been the

 sole employee of George Grove Delivery Service, delivering new furniture. (N.T. 21) He

 works between thirty and forty hours per week for $10 per hour. (N.T. 19) He did not go

 beyond tenth grade. He has recently married. (N.T. 25, 29)

                                            Issue

        Whether a child support figure derived from the Guidelines is appropriate in a

 situation where Father has quit his job paying $11.75 per hour for an average of thirty

 h.ours per week and repl,aced it with another job paying $10 per hour for thirty to forty

 hours per week and when Father has spent no custodial time whatsoever with the child

for a period of three years.

                                          Analysis

        As a general rule, child support Is to be calculated pursuant to the Support

Guidelines authorized by statute and promulgated as a Rule of Civil Procedure by the

Pennsylvania Supreme Court. 23 Pa.C.SA 4322(a); Pa.R.C.P. 1910.16. There is a

presumption that the amount is correct, but that presumptlon can be rebutted, alloWing

. the Court to deviate from the Guideline amount if it finds that the application of the

Guidelines would be inappropriate or unjust in a particular case. 23 Pa.C.SA 4322(b);

Pa. R.C.P. 1910.16-5. If the obligor has employment which provides him or her with a

regular monthly income, the support obligation can be determined according to the

applicable State Guidelines. If there is no regular income, then the Court is charged



                                              3
                                                                               Circulated 08/29/2014 12:20 PM




with the task of determining a reasQnable earning capacity fDr the unemplQyed Dr

underemplDyed indIvidual .. An earning capacity is defined "nQt as an amDunt which the·

persDn cDuld theoretically earn, but thai amDunt which the persQn cDuld realistically

earn under the circumstances, cDnsidering his Dr her age, health, mental and physkal

cDndition and training." Strawn v. Strawn, 664 A.2d 129 (Pa. Super. 1995)

       At the time .of the hearing in this malter, Father was emplQyed as a delivery

persDn .IDr a cQmparJY which delivered new furniture tQ consumers. H,is rate .of pay was

$10.00·p'er hour Dr $400 per week grQSs. He had been making $11.75 per hQur at Jack

TrierMDving which he left in March .of 2013 when new management changed his

benefits and his job descriptiQn tQ his disadvantage. Between March .of 2013 and the'

cQnference, he had made additiDnal mDney in the amDunt .of $600 tQ $700 in return fQr

three instances .of cleaning up debris. Father has nQ educatiDn past tenth grade.

       MDther's 1925(b) statement cDntains a number .of cDmplaints conceming

Father's emplDyment. She complains first that he left his emplDyment at which he was

making a higher wage and failed tD take an apprepriate replacement jeb. Mether alse

believes that Father ShDUld be wDrking mere heurs a week, should have mitigated his

less .of income caused by his voluntary quit and did net make any reasDnable effert te

find werk. The CQurt believes that Father's quit was reasQnable in light .of a

disadvantageeus change te his benefits and his duties. At Trier, Father was wDrking an

average .of 30 h.ours per week when he is w.orking. At his current j.ob, he is w.orking

between 30 and 40 hrs a week. Additi.onally, he d.oes n.ot get laid .off in the Dff-seasen,

The C.ourt has directly addressed M.other's pr.oblem c.oncerning h.ours in assessing



                                   o
Father fer the high part .of his h.ourly estimate - 40 hDUrs per week-- believing it tQ be

                                              4          ..
                                                                               Circulated 08/29/2014 12:20 PM




reasonable for Father to have ac'cepted a job at a lower hourly rate for more hours

rather than continue with unemployment until he finds a job that will pay him the money

that Mother believes to be appropriate. Therefore, the Court does not accept Mother's

arguments; Father quite clearly sought a new job and through that search mitigated

any loss occasioned by the loss of his Trier income. The Court thus finds that it Is

unnecessary to attribute a higher earning capacity to Father as Mother suggests and

finds that Father's monthly income is what . now earns at Grove Delivery for a forty
      .              .   -.        . " . he      .'                    .

hour week.

       Mother complains next that the Court failed to consider that Father takes no
                 lI1;B,)4 •.
custodial time with'    I Sf thereby increasing her financial obligation for the child.

The Explanatory Comments·to Pennsylvania Rule of Civil Procedure 1910.6-4 assert

that if the obligor spends little or no time with the child and therefore incurs no

expenditures that such time would entail, the Court should consider an upward

deviation in support. The conference officer did indeed recommend an upward

deviation. The Court has considered this possibility and has decided that no upward

deviation is to be included .. Mother is receiving support for her other two children and is

actively looking for work which will provide her with additional income. While Father's

obligation is calculated using a forty hour work week, Father's testimony is that he

worked between thirty and forty hours. Should he experience a shorter week than forty

hours, his net income would be reduced for that week, and an upward deviation would

be unjust. There are no other variables in the matter which commend this idea to the

Court. The Guideline figure will therefore be utilized as the appropriate amount.
                                                                              Circulated 08/29/2014 12:20 PM




          Mother also points out, with some justification, that Father's income should

... include all moneys he received from all sources other than his employment. The Court

   understands that she is referring to the $600 to $700 that Father earned from a

   temporary job when he was unemployed. The Court agrees with Mother in theory, but

  . points out that for the purposes of this de.cision; those earnings, when extrapolated over

   his entire seven months of unemployment amounts to at most approximately $100 per

   month, a' de minimus amount in this support calculation,. That being said, however, the

   Court's order under appeal permitted the highe'r support obligation setout in the

   recommended order to remain in effect from July 19, 2013 until December 6,2013,

   thus giving Mother an additional $81.50 per month for more than four months,

   effectively providing her with the major part of Father's.extra income.

                                          Conclusion

          Based on the above, the Court dismisses Mother's appeal and affirms al\

   prOVisions of its order of November 27, 2013,


                                                    BYTH~

   DATED: February 24,2014                          LESLIE GORBEY, JUDGE

   ATTEST:

   COPIES TO:
        Michael V. Marinaro, Esquire
        Lorraine Russell Hagy, Esquire
