J-A14020-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

ANDREW KUNDRATIC                                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                Appellant/Cross-Appellee

                     v.

SOPHIA KUNDRATIC

               Appellee/Cross-Appellant             No. 1920 MDA 2013
                                                    No. 1998 MDA 2013


                    Appeal from the Order October 2, 2013
               In the Court of Common Pleas of Luzerne County
                    Domestic Relations at No(s): 946-2006

BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 08, 2014

       Appellant, Andrew Kundratic, appeals from the order entered on

                                                                       filed a

cross-appeal from this same order. We affirm in part, vacate in part, and

remand.

       Appellant and Ms. Kundratic married on May 9, 1992 and had one child

during the course of their marriage. On May 2, 2006, Appellant instituted

divorce proceedings against Ms. Kundratic. Shortly thereafter, Ms. Kundratic

filed a complaint for child and spousal support. On October 1, 2007, the trial



                                                 llocated $1,500.00 for and

toward the support of one minor child[,] $1,364.00 [for] spousal support[,]
*
    Retired Senior Judge assigned to the Superior Court.
J-A14020-14

                                                                              1
                               pro rata

Trial Court Order, 10/1/07, at 1-2.

      On May 19, 2008, Appellant filed a petition to modify the October 1,

2007 support order. As Appellant claimed, he was entitled to a reduction in

                                                                      per diem




modification petition occurred before a hearing officer. At the conclusion of

                                                                    -2008 gross

annual wages were $109,369.72,                        -2008 gross per diem

                                                  -




petition to modify the support order, the hearing officer determined that

Appellant had failed to demonstrate that a material and substantial change

in circumstances had occurred since the entry of the original support order.

Id. at 9-10. Therefore, the hearing officer recommended that the trial court

                                                       Id. at 11.



report and recommendation. On December 30, 2009, the trial court denied


1
 Although the original support order was dated September 27, 2007, the
order was entered on October 1, 2007.

                                      2
J-A14020-14


Appel

recommendation as an order of court. Trial Court Order, 12/30/09, at 1.

        Approximately two-and-a-half years later, the trial court entered a

modified support order in the case. Specifically, on May 18, 2011, the trial



per month for health insurance. Trial Court Order, 5/18/11, at 1.

        Appellant and Ms. Kundratic filed the instant cross-petitions to modify

the support order in 2011       or, over three years ago.   Appellant filed his



petition, Appellant claimed that his income had decreased since the entry of

the last support order.    Therefore, Appellant requested that the trial court

                                                                              -

2. Ms. Kundratic filed her cross-petition to modify the support order on July

                                                                      hild and

spousal support obligations because she no longer had health insurance



since the entry of the last support order.2

7/29/11, at 1-2.




2
  The Pennsylvania Rules of Civil Procedure establish two competing
procedures for support
[support] action shall proceed as prescribed by Rule 1910.11 unless the
court by local rule adopts the alternative hearing procedure of Rule
                                                                      e
procedure delineated in Rule 1910.12. See Pa.R.C.P. 1910.10 note.
                                       3
J-A14020-14


     In August 2011, one or both of the parties appeared at an office

conference before a conference officer and the conference officer rendered

his support recommendations.3 On August 29, 2011, the trial court entered

an interim order, wherein the trial court ad

recommendations as an interim order of court. Interim Order, 8/29/11, at

1-



was determined to be $8,161.54. Interim Order, 8/29/11, at 1-2; see also

Pa.R.C.P. 1910.12(b)(1) and (2). Based upon these determinations, the trial

court ordered Appellant to pay $1,680.00 per month in spousal support and

$1,340.00 per month in child support, for a total support obligation of

$3,022.00 per month. Interim Order, 8/29/11, at 1-2.

     Following entry of the interim support order, Appellant filed a written

request for a support hearing before a hearing officer. On September 15,




scheduled, continued, and rescheduled multiple times during the ensuing



Therefore, by order entered September 28, 2012, the trial court modified


3
   There is no record of whether both parties appeared at the office
conference. However, the case proceeded as though one of the parties
failed to attend the conference. See Pa.R.C.P. 1910.12(b)(2).
                                    4
J-A14020-14




support. Trial Court Order, 9/28/12, at 1.

     On October 22, 2012, the support hearing was finally convened before

the hearing officer.   The hearing officer explained the evidence that was

presented during the hearing, as well as the conclusions that she generated

from the evidence:

        [Appellant and Ms. Kundratic both] reside in Luzerne
        County, Pennsylvania. The parties were married on May 9,
        1992 [and the parties had one child during the course of the
        marriage. The child] reached the age of majority [in 2012].

        [On May 2, 2006, Appellant filed a complaint in divorce
        against Ms. Kundratic, seeking a decree in divorce and an
        order equitably dividing the marital property. Complaint in
        Divorce, 5/2/06, at 1-4. At the time of the October 22,
        2012 support hearing, the divorce and equitable distribution
        matter had proceeded in the following manner: after a

        divorce decree on September 21, 2011; the decree stated
        that Appellant and Ms. Kundratic were divorced and that the

        distribution reports and recommendations into the decree;
        Appellant filed a notice of appeal from the divorce decree
        and raised a number of claims on appeal, including that the
        trial court erred in valuing the marital residence; and, at the

        appeal from the divorce decree was still pending before the
        Superior Court.4]

4
  We note that, on October 22, 2012, this Court affirmed in part and vacated
in part the equitable distribution award. We then remanded the case to the

. . . and determine the fair market value [of] the marital residence for
                               Kundratic v. Kundratic, 62 A.3d 463 (Pa.
Super. 2012) (unpublished memorandum) at 4. The trial court rendered its
decision on October 1, 2013 and Appellant again appealed the equitable

distribution award was decided by this Court in a memorandum filed on July
                                      5
J-A14020-14



       [During the October 22, 2012 support hearing, Appellant
       claimed] that his income decreased in 2011 and that he was
       laid off from his employment as of January 1, 2012. He
       ask[ed] that his support be recalculated and that his actual
       2011 and 2012 income be used . . . for computing his
       support obligations.

       [Appellant] also claim[ed] that [Ms. Kundratic,] who has
       been unemployed since 2009[,] be assigned an earning
       capacity equal to her earning capacity in 2009. [Appellant
       claimed] that [Ms. Kundratic] failed to mitigate her []
       income [loss after her employment was terminated in
       2009].

       [Ms. Kundratic] claim[ed] that [Appellant] was laid off for
       cause or[,] in the alternative[,] that he [] failed to mitigate
       his [] income [loss] since his 2012 job lay off.            She
       [requested] that [Appellant] be assigned an earning
       capacity equal to his 2011 earnings.


       eligible for support until her emancipation [in September]
       2012.

       The parties were separated but married until September 20,
       [2011]. By . . . [d]ecree entered on September 21, [2011],
       the parties were divorced from the bonds of marriage.
       [Appellant,] however, appealed the economic issues of the
       divorce[. As such, the hearing officer concluded that Ms.
       Kundratic] has a right to [receive alimony pendente lite
                        economic issues are resolved].

       [At the time of the October 22, 2012 support hearing,
       Appellant was] 51 years old and [possessed] an

       [on-the-job] career training. . . .

       On December 30, 2009, an order was entered affirming [a]
       [r]eport and [r]ecommendation [of] the [h]earing [o]fficer.

9, 2014. On or about August 12, 2014, Appellant filed a petition for
allowance of appeal with our Supreme Court which, as of the date of this
memorandum, was still pending.
                                      6
J-A14020-14




       annual wages were $109,369.72, that his gross per diem
       allowance was $40,067.00[,] and that his mileage, meals[,]
       and entertainment reimbursement totaled $12,203.00.

       was [thus] determined to be $161,639.72.

                                   ...

                                        ]ax [r]eturn lists an annual

       relayed to the [h]earing [o]fficer that [Appellant] had
       received a [tax-free] per diem allowance of $40,067.00 and
       $12,203.00 for mileage, meals[,] and entertainment. His
       total 2011 annual income from his employer equaled
       $141,809.00.

       [As the hearing officer concluded, Appellant] proved that a
       material and substantial change in circumstances []
       occurred[,] which warrant[ed] a recalculation of his support
       obligations effective July 21, 2011. [Specifically, a] review


       [h]earing [o]fficer indicate that [Appellant] ha[d] a gross
       annual income of $144,757.00 [in 2011]. After appropriate
       deductions of $13,554.00[, Appellant] ha[d a 2011] net
       annual income of $131,193.00. Pursuant to [Pa.R.C.P.]
       1910.16-2(a)(1) [and] (c), in 2011[, Appellant] ha[d] a
       [2011] net monthly income of $10,929.58.

       [Appellant claimed that, on December 31, 2011,] he was
       laid off from his employment and [he] immediately applied
       for unemployment compensation.         [During the support
       hearing, Appellant introduced] into evidence [] his [b]enefit
       [d]etermination from [the] New Jersey Department of Labor
       and Unemployment Insurance Office to substantiate his
       testimony that he is receiving [$611.00] gross per week or
       $2,267.30 gross per month. According to the [m]ember
       [d]ata [i]ncome [s]creen on PACSES, for [Appellant], he
       received additional compensation from his employer during
       the first quarter of 2012 that totaled a gross amount of
       $3,891.00 or $324.00 gross [per] month. Based on the


                                    7
J-A14020-14


       $2,971.72.    After appropriate deductions pursuant to
       [Pa.R.C.P.] 1910.16-
       monthly income is $2,524.16.

       [Ms. Kundratic] allege[d] that [Appellant] lost his job for
       cause or[,] in the alternative, [that] he [had] not mitigated
       his [] income [loss. Ms. Kundratic requested that the
       hearing officer assign Appellant] an earning capacity equal
       to his 2011 income.

       [Appellant] testified that he was employed as a software
       consultant by Quorum Consulting for 10 years and[,
       beginning in 2005, Quorum Consulting assigned Appellant
       to work in a New York State bank. Appellant] testified that
       his termination on December 2011 was a surprise. [The
       evidence demonstrates] that Quorum had a one year
       contract with the [b]ank that ended [on] March 31, 2012[,]
       but [the contract provisions declared that the contract]
       could be terminated earlier pursuant to a separate
       agreement.     [Appellant] allege[d] that he was laid off
       without cause by Quorum and that the receipt of
       unemployment compensation proves [that he was laid off
       without cause]. Although case law [holds] that an official
       action by an agency [is not] binding on the [c]ourt[,] it is
       the obligation of the challenger to prove it was otherwise. . .
       . [As the hearing officer concluded, Ms. Kundratic] did not
       meet this burden. [Appellant] was [cross-examined] as to
       his software training and [as to whether his training] was


       [h]uman     [r]esources     [d]epartment     submitted   to
                                     s] claim that [Appellant] was
       terminated for cause.

       [Ms. Kundratic] also claim[ed] that [Appellant] ha[d] not
       mitigated his [wage loss] and that work is available for
       [Appellant]. Again, [the hearing officer concluded that Ms.
       Kundratic] failed to prove this allegation. [Appellant] was
       [cross-examined] by [Ms. Kundratic] as to [the efforts
       Appellant undertook to find employment,] but no evidence
       was submitted to substantiate that work was available to
                                                           2, 2012
       hearing, Appellant had] only been unemployed [for ten]
       months.      The [h]earing [o]fficer [concluded] that

                                     8
J-A14020-14



       due to the economic conditions in Northeast Pennsylvania,
       not [to a] lack of trying by [Appellant].

       [The hearing officer concluded that, in 2012,] Appellant
       ha[d] an income equal to the amount of unemployment
       compensation he [was] receiving plus the additional income

       $2,524.16 pursuant to [Pa.R.C.P.] 1910.16-2(a)(6) and (c).

       [At the time of the October 22, 2012 hearing, Ms. Kundratic
       was] 45 years old, and [] a high school graduate. [Ms.
       Kundratic] is attractive, articulate[,] and has no physical
       disabilities nor does she have any child care responsibilities.
       [Ms. Kundratic] testified that she worked at Lord & Taylor
       [department store] in a non-managerial [full-time] job for
       [17] years. Her pay increased from $14.00 [per] hour to
       $37.00 [per] hour over the course of her employment. She
       was laid off in January 2009 and applied for and collected
       unemployment benefits through 2009. She testified that
       she [had not] worked full time since her lay-off. She
       [testified] that she [] looked for [full-time] work at K-Mart,
       Wal-Mart[,] a
       Taylor but was told that all [non-managerial] jobs were part
       time. [Ms. Kundratic] testified that she has been working at
       Bath & Body Works since 2011. She entered her 2011
       [i]ncome [t]ax [r]eturn to substantiate her income. [At the
       time of the October 22, 2012 hearing, Ms. Kundratic]
       receive[d] $7.62 [per] hour and work[ed] about 24 hours
       [per] week. She testified that Bath [& Body Works was]
       unable to give her more hours.

       [The hearing officer concluded that, although Ms. Kundratic
       had] been diligent in applying for employment, a more
       discipline[d] approach [was] required to demonstrate that
       [Ms. Kundratic was] trying to mitigate her [] income [loss].
       [At the time of the hearing, Ms. Kundratic had] been
       unemployed for four years [and Ms. Kundratic claimed that]
       her only sources of income [were] her spousal support and
       her wages from [Bath & Body Works]. When it was clear to
       [Ms. Kundratic] that only [part-time] work was available to
       her based on her credentials, she should have developed a
       plan to improve her chances, perhaps considering additional


                                     9
J-A14020-14


       schooling, training[,] or at [] least taking on two [part-time]
       jobs.

       [The hearing officer concluded that Ms. Kundratic] failed to
       prove that she [] attempted to mitigate her lost wages since
       her layoff in 2009.     Pursuant to [Pa.R.C.P.] 1910.16-
       2(d)(4), [Ms. Kundratic] [was] given an earning capacity
       equal to a [full-time] minimum wage job[, which is]
       $15,080.00 [per] year[,] or $1,256.67 [per] month. After
       appropr
       income for 2011 and 2012 [was] $1,121.45. . . .

       In calculating support for the period beginning July 21, 2011
       through December 31, 2011, [the hearing officer concluded
                                                 as] $10,929.58 and

       The amount of child support and spousal support [was]
       determined in accordance with the support guidelines which
       consist of the guidelines expressed as the child support
       schedule set forth in [Pa.R.C.P.] 1910.16-3, the formula in
       Rule 1910.16-4[,] and the operation of the guidelines as set
       forth in these rules. . . .

       In calculating the support for the period beginning January
       1, 2012 through September [26], 2012[, the hearing officer


       $1,121.45.     The amount of child support and spousal
       support [was] determined in accordance with the support
       guidelines which consist of the guidelines expressed as the
       child support schedule set forth in [Pa.R.C.P.] 1910.16-3,
       the formula set forth in Rule 1910.16-4[,] and the operation
       of the guidelines as set forth in these rules. . . .

       In calculating   the   support     for   the   period   beginning
       Septemb

       monthly income [was] set at $1,121.45. The amount of
       spousal support [was] determined in accordance with the
       support guidelines which consist of the guidelines expressed
       as the [] support schedule set forth in [Pa.R.C.P.] 1910.16-
       3, the formula set forth in Rule 1910.16-4[,] and the
       operation of the guidelines as set forth in these rules. . . .


                                     10
J-A14020-14


          [Ms. Kundratic] lives in the marital home and she is
          responsible for the mortgage payment, the real estate

          She is responsible for a total of $1,761.61 [per] month for
          the items listed above. Since the house expenses exceed
                                      ncome, taking into account the
          spousal support/APL       [and] child     support of this
          recommendation, [the hearing officer determined that Ms.
          Kundratic] [was] entitled to a contribution from [Appellant]
          of up to 50% of the excess amount as part of her total
          award.

          [The hearing officer concluded that, p]ursuant to [Pa.R.C.P.]
          1910.16-6(e)[, Ms. Kundratic] [was] entitled to a mortgage
          deviation. In applying the mortgage deviation[,] the total
          amount of expenses paid by [Ms. Kundratic] [was]
          $1,761.61.      Utilizing the formula set forth [in] the
          [g]uidelines, [the hearing officer determined that Ms.
          Kundratic was entitled to] receive a contribution from
          [Appellant] of $248.07 from July 21, 2011 through
          December 31, 2011.         From January 1, 2012 through
          September [26], 2012, [Ms. Kundratic] [was to] receive a
          contribution from [Appellant] of $638.65. From September
          [27], 2012 forward, [Ms. Kundratic] [was to] receive a
          contribution from [Appellant] of $670.49 [per] month.

                                                      /13/12, at 6-9; Hearing

                                                        -11.

         On January 3, 2013, the trial court entered an interim order that was
                                                                   5
                                                                       Amended

Recommendation and Interim Order, 1/3/13, at 1-4; see Pa.R.C.P.

1910.12(e). In relevant part, the interim order read:

          1. From July 21, 2011 through December 31, 2011:




5
    The interim order was dated January 2, 2013.

                                       11
J-A14020-14


              [Appellant] is obligated to pay $1,425.71 [per] month
              for the support of the minor child, $2,514.73 [per]
              month for [the] support of the spouse and $248.07
              [per] month towards the mortgage expenses of the
              marital home.

                                        ...

           2. From January 1, 2012 through September 26, 2012:

              [Appellant] is obligated to pay $564.21 [per] month for
              the support of the minor child, $251.53 [per] month for
              [the] support of the spouse and $638.65 [per] month
              towards the mortgage expenses of the marital home
              until September 20, 2012. From September 21, 2012,
              [Appellant] is obligated to pay $564.29 [per] month for
              the support of the minor child, $251.53 [per] month as
              APL and $638.65 [per] month towards the mortgage
              expenses of the marital home.

                                        ...

           3. From September 27, 2012 forward:

              [Appellant] is obligated to pay $561.08 [per] month for
              APL and $670.49 [per] month towards the mortgage
              expenses of the marital home. . . .

Amended Recommendation and Interim Order, 1/3/13, at 1-2.



                                                   6
                                                       On January 16, 2013, Ms.


6
    Appellant raised the following exceptions to the trial court:

                                                             income was
           incorrect.

           2. The hearing officer failed to give any consideration to


           income in previous years.
                                         12
J-A14020-14



                    7




          3. Inclusion of mortgage deviation was improper.


          was incorrect.

          5. The hearing officer failed to terminate alimony pendente
          lite, effective July 10, 2012, the date litigation concluded on
          the divorce appeal.

          6. The hearing officer failed to consider the duration of the
          marriage in determining the duration of the award for
          alimony pendente lite.



7
    Ms. Kundratic raised the following exceptions to the trial court:

          1. The [hearing officer] erred in finding that [Ms. Kundratic]
          has an earning capacity when she has been actively seeking
          employment after her unemployment benefits ran out.

          2. The [hearing officer] erred in finding that [Ms. Kundratic]
          has an earning capacity when she has attempted to mitigate
          her circumstances with no results in the economy in
          Luzerne County with unemployment over 9%.

          3. The [hearing officer] erred in finding that [Appellant]
          mitigated his circumstances and setting his income at his
          unemployment compensation benefits amount.

          4. The [hearing officer] erred in finding that [Appellant]
          actively sought employment when he testified that he has
          not sent any resumes out and has not posted any updated
          resumes and has only contacted two friends.




                                        13
J-A14020-14




exceptions.    By order entered October 2, 2013, the trial court denied Ms.



                              8
                                  Trial Court Order, 10/2/13, at 1. Specifically,



Appel

                                                            Id.

        Appellant and Ms. Kundratic filed timely notices of appeal from the trial

                                                   ims on appeal:9

          [1.] Whether the trial court erred by failing to address the

          extent that the trial court affirmed the calculation of the
          hearing [officer], it committed error.

          6. The [hearing officer] erred in not finding that [Appellant]
          testified that he did not update his required skills in order to
          keep his job.

          7. The
          at [unemployment compensation] level instead of keeping
          him at an earning capacity of his last job of $10,929[.00]
          net per month.



8
  But see Pa.R.C.P. 1910.             If exceptions are filed, the interim order
shall continue in effect. The court shall hear argument on the exceptions
and enter an appropriate final order substantially in the form set
forth in Rule 1910.27(e) within sixty days from the date of the filing of
exceptions to the interim order. . . .

9
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).      Appellant complied and, within his Rule 1925(b)
statement, Appellant listed the claims he currently raises on appeal.
                                        14
J-A14020-14



        [2.] Whether the trial [court] erred by failing to address the

        the extent that the trial court affirmed the calculation of the
        hearing [officer], it committed error.

        [3.] Whether the trial court erred by failing to consider [Ms.

        order to calculate her net monthly income[?]

        [4.] Whether the trial [court] erred by failing to address the
        inclusion of a mortgage deviation[?] To the extent that the

        mortgage deviation, it committed error.

        [5.] Whether the trial court erred by not terminating
        alimony pendente lite, effective July 10, 2012, the date
        litigation concluded on the divorce appeal[?]

        [6.] Whether the trial court erred by failing to consider the
        duration of the marriage in determining the duration of the
        award for alimony pendente lite[?]

                        -8 (some internal capitalization and italicization

omitted).

      Withi                           -appeal, Ms. Kundratic raises eight

claims.10

        [1.] Did the trial court err in deciding the exceptions without
        a record or transcripts of the hearing before the [hearing
        officer]?

                                                              odify
        the support order be dismissed due to a lack of a change in
        material circumstances?




10
  The trial court did not order Ms. Kundratic to file a Rule 1925(b) statement
and Ms. Kundratic did not file a Rule 1925(b) statement in this case.
                                      15
J-A14020-14



       be used to determine support rather than an earning
       capacity?

       [4.] Did the [trial court] err in terminatin
       spousal support/APL effective February 1, 2013?

       [5.] Was [Ms. Kundratic] eligible for a mortgage deviation?

       [6.] Should [Appellant] be placed at an earning capacity
       rather than unemployment compensation?

       [7.] Were the circumstances                                   -
       off voluntary?

       [8.] Does [] Appellant have a duty to mitigate his
       circumstances after a lay-off from his company?

                         -14 (some internal capitalization omitted).11

                                          aims and then we will consider Ms.



     As we have held:

       When evaluating a support order, this Court may only

       cannot be sustained on any valid ground. 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. 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. In addition, we note

       p
       interests.

11
  For ease of discussion, we have re-
appeal.

                                     16
J-A14020-14



Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (internal

citations omitted).

                          modify an existing support award when the party

requesting the modification shows a material and substantial change in

                                                               Crawford v.

Crawford, 633 A.2d 155, 164 (Pa. Super. 1993) (internal quotations and



mean                                                    Id.

most recent [support] order is the one that is pertinent to the determination

                                                       Samii v. Samii, 847

A.2d 691, 695 (Pa. Super. 2004).



with the [requesting] party, and the determination of whether such change

has occurred in the circumstances of the [requesting] party rests within the

                         Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super.

2012) (internal quotations and citations omitted).      Moreover, although

Pennsylvania Rule of Civil Procedure 1910.19(a) declares that a petition to

                                                                   ubstantial




modify or terminate the existing support order in any appropriate manner

based upon the evidence presented without regard to which party filed the

                                     17
J-A14020-14


                                                            see also Brickus

v. Dent, 5 A.3d 1281 (Pa. Super. 2010) (father filed a petition to decrease

his support obligations; this Court held that the hearing officer had the



not even filed a cross-petition to modify the support order).

      Appellant first claims that the trial court erred when it adopted the




his year-2011 net monthly income was incorrect because the calculation

                                                           d because the trial

                                                                Id. at 12-13.



      According to Appellant, the hearing officer incorrectly attributed

                               -2011 income. Appellant claims that the only

                                                                -2011 income

was $92,554.00

year-2011 income was greater than $140,000.00. Id.

      As the hearing officer explained, it calcul                      -2011

income in the following manner:



        relayed to the [h]earing [o]fficer that [Appellant] had
        received a [tax-free] per diem allowance of $40,067.00 and
        $12,203.00 for mileage, meals[,] and entertainment. His
        total 2011 annual income from his employer equaled

                                      18
J-A14020-14


        $141,809.00. . . .  [When other sources of income are
                                   -2011] gross income [is]
        $144,757.00. After appropriate deductions of $13,554.00,
        [Appellant] has a net annual [year-2011] income of
        $131,193.00.

                                                                   -7.



claim that the hearing officer erred in concluding that, in 2011, Appellant

received a gross $40,067.00 per diem allowance and a $12,203.00
                                                              12
                                                                     According to

Appellant, during the October 22, 2012 hearing, there was no evidence that




corresponded with the hearing officer

that[, in 2011,] [Appellant] had received a [tax-free] per diem allowance of



Steiner v. Markel, 968 A.2d 1253, 1256-1257 (Pa. 2009) (an appellate




modification in his support obligations and, as such, Appellant bore the

                    a material and substantial change in circumstances since

12

claim that the trial court erred in attributing $52,203.00 to his income.
                                      19
J-A14020-14


                                        Crawford, 633 A.2d at 164.      With

                           -

was

obligation to pay $236.00 per month for health insurance. Trial Court Order,

5/18/11, at 1.    We note that the May 19, 2011 order did not alter

                                   and these support obligations were based,

in part, upon an earlier factual determination that                    -2008

gross per diem                                                         -2008



                  Report and Recommendation, 8/20/09, at 9; see also

Samii                          he most recent [support] order is the one that

is pertinent to the determination of whether a change in circumstances has

occurred . . . [even if the most recent order did not] change the amount of



      Simply stated, Appellant did not provide any evidence or argument

                                                      per diem



eliminated or altered since the entry of the May 19, 2011 order.         N.T.

Hearing, 10/22/12, at 49. To be sure, during the October 22, 2012 hearing,

                                                          per diem

the amount of the gross year-2011 per diem




                                      20
J-A14020-14


              Id.                                                      -2011

per diem had not changed since the entry of the prior support order.



year-                                                              per diem



Further, the trial court did not err in adoptin

recommendation on this issue.

        Appellant also claims that the hearing officer incorrectly determined

his year-



12-13. This claim fails because Appellant failed to allege or argue that his



order was entered and because, in raising the argument to this Court,

Appellant completely ignores the fact that the hearing officer determined



Report and Recommendation, 12/13/12, at 6-7.           The trial court then

adopted this recommendation as its own.

        Therefo

determination that Appellant was reimbursed for his work expenses,

Appellant is not entitled to relief on this claim.



trial


                                        21
J-A14020-14




assigning Ms. Kundratic a minimum wage earning capacity, the hearing




Id.

      In this case, the hearing officer was well aware of Ms. Kundrati

earnings history and the hearing officer knew that Ms. Kundratic does not

have a disability and that she had limited childcare obligations.     Hearing



attractive, articulate and has no physical disabilities nor does she have any

child care responsibilities. [Ms. Kundratic] testified that she worked at Lord

& Taylor in a non-managerial full time job for [17] years. Her pay increased

from $14.00 an hour to $37.00 an hour over the course of her

                                                   and after considering Ms.

                                                                          the



level of a full-time, minimum wage job.     The trial court then adopted the




history, and the fact that Ms. Kundratic neither has a disability nor has


                                     22
J-A14020-14




basis in fact. The claim thus fails.

      Third, Appellant claims that the trial court erred in adopting the




with any relevant discussion, citation to the record, citation to evidence, or

                                              ird claim on appeal is waived.

Commonwealth v. Miller, 721 A.2d 1121, 1124 (

appellant's counsel. When issues are not properly raised and developed in

briefs, when briefs are wholly inadequate to present specific issues for



citations omitted).

      Fourth, Appellant claims that the trial court erred in adopting the

                                       rtgage deviation in the support order.



deviation constituted error because, during the October 22, 2012 hearing,

the parties presented no evidence of the amount Ms. Kundratic was required

to pay for the mortgage on the marital home and because Ms. Kundratic did



      In relevant part, Pennsylvania Rule of Civil Procedure 1910.16-6(e)

declares:


                                       23
J-A14020-14


        The guidelines assume that the spouse occupying the
        marital residence will be solely responsible for the mortgage

        Similarly, the court will assume that the party occupying the
        marital residence will be paying the items listed unless the
        recommendation specifically provides otherwise.        If the
        obligee is living in the marital residence and the mortgage

        (including amounts of spousal support, alimony pendente
        lite and child support), the court may direct the obligor to
        assume up to 50% of the excess amount as part of the total
        support award. . . . This rule shall not be applied after a
        final resolution of all outstanding economic claims. For
        purposes of this subdivision,

        insurance and may include any subsequent mortgages,
        home equity loans and any other obligations incurred during
        the marriage which are secured by the marital residence.

Pa.R.C.P. 1910.16-6(e).

     At the outset, Appellant is incorrect to claim that the hearing officer



Kundratic introduced her total monthly mortgage obligation into evidence

during the support                                     -C. Ms. Kundratic also



Exhibits 4-A and 4-B.

     Appellant is also incorrect to claim that the hearing officer did not have

the authority to order a mortgage deviation.      Pennsylvania Rule of Civil

Procedure 1910.19(c) declares that, pursuant to a petition for modification,

                                                                        in any

appropriate manner based upon the evidence presented without



                                     24
J-A14020-14


1910.19(c) (emphasis added). In this case, Ms. Kundratic requested an



support hearing, Ms. Kundratic presented the hearing officer with evidence

regarding her income, her mortgage obligation, and her real estate tax

obligations.   Appellant did not object to this evidence.    Moreover, under

Pennsylvania Rule of Civil Procedure 1910.16-6(e), a mortgage deviation

may be granted where



1910.16-6(e).    Here, since the hearing officer had evidence regarding Ms.

                                     ligation, and real estate obligations, the



                                                                     Id.    The

hearing officer thus had the authority to recommend a mortgage deviation in




                                            final two claims on appeal fail.

Indeed, as we will discuss later in this memorandum, the trial court erred



                                                                       l.




                                     25
J-A14020-14




Brief at 13. This claim is waived, as Ms. Kundratic did not raise the claim




Further, even if the claim were not waived, the claim would fail because

there is no evidence that the trial court decided the exceptions before it




to modify the support order [must] be dismissed due to a lack of a change in



because Ms. Kundratic never raised the claim at any point in the lower court

proceedings and because Ms. Kundratic did not raise the claim in her




      Third, Ms. Kundratic contends that the hearing officer erred in

attributing to her a full-time, minimum wage earning capacity. According to




failed to [] mitigate her ci                                      -26. This

claim fails.




                                    26
J-A14020-14


     Pennsylvania       Rule   of   Civil   Procedure   1910.16-2    provides   that,



                                                 -2. Nevertheless, Rule 1910.16-2



current claim, Rule 1910.16-                                        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

                                                                                    -

2(d)(4).



           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 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.

Pa.R.C.P. 1910.16-2(d)(4).

     As explained above, during the support hearing, the evidence

demonstrated that Ms. Kundratic was a 45-year-old high school graduate

with no physical disabilities and limited childcare responsibilities.           N.T.

Hearing, 10/22/12, at 21. Further, Ms. Kundratic testified that             until she


                                            27
J-A14020-14


was laid off from Lord & Taylor in January 2009      she had worked at Lord &

Taylor for 17 years, in a full-time position, earning at least $14.00 per hour.

Id. at 22.      Notwithstanding her extensive work history, maturity, good

health, and physical abilities, Ms. Kundratic testified at the October 22, 2012

support hearing that she was currently employed at Bath & Body Works in a

mere part-time capacity, earning $7.62 per hour          and that she had not

worked in a full-time position since she was laid off from Lord & Taylor in

2009. Id. at 25.

                                                                          [a]ge,

education, training, health, work experience, earnings history and child care

                                                            could not secure a

full-time, minimum wage job in the over-three-years since she had been laid

off from Lord & Taylor.13     Pa.R.C.P. 1910.16-2(d)(4).    The hearing officer

                                                 llfully failed to obtain . . .

appropriate em

Kundratic an income equal to a full-time, minimum wage job.             Hearing

                                                           -9.   The trial court

                                                         ts order of court.

        Put simply, the trial court did not abuse its discretion when it adopted




13
     We note that, during the October 22, 2012 hearing, Ms. Kundratic testified

N.T. Hearing, 10/22/12, at 20-21.
                                       28
J-A14020-14


earning capacity equal to a full-time, minimum wage job.      The amount

constitutes a realistic measurement of what Ms. Kundratic should be



           D.H. v. R.H., 900 A.2d 922, 930 (Pa. Super. 2006) (internal

                                                                l fails.



contends that the trial court erred in terminating her APL and mortgage

deviation effective February 1, 2013. We agree. Therefore, we vacate this

                          rder and remand.

      As we have explained, on January 3, 2013, the trial court entered an




recommendation, the hearing officer explained that it recommended Ms.

Kundratic receive APL and mortgage expenses because Appellant had

appealed the equitable distribution award to the Superior Court             and

Appellant had thus frozen the equitable distribution award and the award of

the marital home to Ms. Kundratic pending the appeal.     Moreover, at the



Court.14



                                 , claiming that the hearing officer should

14
                                                                           table
distribution award is pending before our Supreme Court.
                                    29
J-A14020-14




2012

distribution appeal occurred before the Superior Court.             Appellant

Exceptions, 1/2/13, at 1.    On October 2, 2013, the trial court entered an




spousal support/APL is termi

Order, 10/2/13, at 1. The trial court provided no explanation for the order

or for the seemingly random termination date.

       Now on appeal, Ms. Kundratic claims that the trial court erred in

terminating her APL effective February 1, 2013.         We agree.     We have

explained:

             pon entry of a decree in divorce, any existing order for
         spousal support shall be deemed an order for alimony
         pendente lite
         Pa.R.C.P. 1920.31(d). Alimony pendente lite

         spouse during the pendency of a divorce or annulment
                                         3103.      Pursuant to 23
         Pa.C.S.A. § 3702, alimony pendente lite is allowable to
         either spouse during the pendency of the action.


         status of the parties but on the state of the litigation. This
         means, in theory, that the APL terminates at the time of
         divorce which usually concludes the li             DeMasi v.
         DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991). In DeMasi,
         our Court held that

             a divorce is not final for purposes of APL until appeals
             have been exhausted and a final decree has been
             entered. Thus, while APL typically ends at the award of

                                      30
J-A14020-14


            the divorce decree, which also should be the point at
            which equitable distribution has been determined, if an
            appeal is pending on matters of equitable distribution,
            despite the entry of the decree, APL will continue
            throughout the appeal process and any remand until a
            final [o]rder has been entered.

Prol v. Prol, 840 A.2d 333, 335 (Pa. Super. 2003) (some internal

quotations and citations omitted) (emphasis in original).

      In the case at bar, the trial court abused its discretion when it

terminated both the APL and the mortgage deviation effective February 1,

2013.15                                     the equitable distribution award is

still pending in this Court   and Ms. Kundratic is entitled to receive both APL

and a mortgage deviation until the economic claims are resolved.           Id.

                                                                        nd for

further proceedings.




                                     December 31, 2011 termination from

employment was involuntary; and 2) that, during the ensuing time,

Appellant had attempted to mitigate his income loss by finding other

                                             -33.   We conclude that the trial

                                                                 s termination




15
  As we have already explained, the trial court properly ordered that Ms.
Kundratic was entitled to a mortgage deviation in this case.
                                       31
J-A14020-14


was involuntary, but that the court did abuse its discretion when it held that

Appellant attempted to mitigate his income loss.

      Although we have quoted a segment of Pennsylvania Rule of Civil

Procedure 1910.16-2 above, we will quote the portions of the rule that are



        Rule 1910.16-2.      Support Guidelines.      Calculation of
        Net Income

        Generally, the amount of support to be awarded is based


                                     ...

        (d) Reduced or Fluctuating Income.

            (1) Voluntary Reduction of Income. When either party
            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, there generally will be no effect on the
            support obligation.

            (2) Involuntary Reduction of, and Fluctuations in,
            Income. No adjustments in support payments will be
            made for normal fluctuations in earnings. However,
            appropriate adjustments will be made for substantial
            continuing involuntary decreases in income, including
            but not limited to the result of illness, lay-off,
            termination, job elimination or some other employment
            situation over which the party has no control unless the
            trier of fact finds that such a reduction in income was
            willfully undertaken in an attempt to avoid or reduce the
            support obligation.

                                     ...

            (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

                                     32
J-A14020-14



             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 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.

Pa.R.C.P. 1910.16-2.



Kundratic contends that the trial court abused its discretion when it

determined that Appellan

employment was involuntary.       According to Ms. Kundratic, the evidence



                                                                         ed to




her claim on appeal thus fails.

         During the October 22, 2012 support hearing, Appellant never

testif

December 31, 2011 job termination. Rather, Appellant testified that he is a

software consultant and, shortly before he was laid-off from work, he was


                                      33
J-A14020-14


                                      vice named Quorum Technical Services,



services to a company named JRI America. Id. at 37-38.



insure [Appellant] o

either JRI America or Quorum terminated their particular contract.          As a

result, Appellant lost his job. Id. at 28, 29, and 37-38. Moreover, we note

that, on cross-                                         ey specifically asked

Appellant whether he was laid-off because he was not up to date on his




insure me on             Id. at 63.

      After hearing Appellant testify during the support hearing, the hearing

                                                                     -off   was

involuntary. The trial court adopted this determination.

                                            n appeal       that the trial court




employment] because he failed to keep up with the current training needed

to effectivel              is factually baseless. The claim fails.



appeal, Ms. Kundratic contends that the trial court abused its discretion in


                                       34
J-A14020-14


concluding that, after Appellant was laid-off from work, Appellant had

attempted to mitigate his income loss by endeavoring to obtain appropriate

                                          -33. We agree with Ms. Kundratic

that the trial court erred in this regard. Therefore, we vacate the portion of

the trial

unemployment compensation insurance income        and we remand so the trial



support order.

      During the support hearing, Appellant testified that   after he was laid

off from work in December 2011         he posted his resume on two online

employment websites. Appellant testified that he currently visits one of the

                                                                     Hearing,

10/22/12, at 51. As a result of these efforts, Appellant testified that he has

received a number of telephone inquiries regarding employment in his field

of software consulting       but that he has received limited interview

opportunities and no job offers.16




16
                                                               c claims that


testimony. Indeed, Appellant specifically testified that he has received no
job offers since he was laid off from work. N.T. Hearing, 10/22/12, at 47.


                                             testified that he merely turned
down a job interview with Walt Disney World       and that he did so because
the interview was in Florida. N.T. Hearing, 10/22/12, at 33.
                                     35
J-A14020-14


      However, during the support hearing, Appellant admitted that he has

voluntarily decided not to maintain his current software training and that,



Appellant testified:

        Q


        correct?

        A: Now it is. Yes it is. . . .

                                         ...

        Q: . . .


        A: Yes.

        Q: And you, you were the one who decided whether or not
        to get additional training or not?

        A: If they were coming out with new software. Yes it was
        my decision.

                                         ...



        agree with that. Right?



        Q: Right.


        a job with training of [2005] up if I can find a place that has
        that software not the newer software.

        Q: But that limits the amount of places you can find a job.
        Correct?

                                         36
J-A14020-14



        A: I guess so (inaudible) any place for a job.

N.T. Hearing, 10/22/12, at 40, 43, and 44-45.

      In determining that Appellant had attempted to find appropriate

employment following his lay-off, the hearing officer and the trial court



abuse of discretion. To be sure, Appellant admitted that his willful failure to



him to find appropriate employment in his field. In other words, Appellant

                                                                    ppropriate

                                  -2.




unemployment compensation insurance income         and we remand so the trial



support order.

      Order affirmed in part, vacated in part, and remanded.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2014

                                        37
