J-S20031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SUWANNEE KARNER                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ERIC S. KARNER                           :
                                          :
                    Appellant             :   No. 3305 EDA 2019

             Appeal from the Order Entered October 18, 2019
   In the Court of Common Pleas of Bucks County Domestic Relations at
                       No(s): No. 2015 DR 01804


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                         Filed: July 30, 2020

      Eric S. Karner (“Father”) appeals from the order denying his motion to

modify child support. We conclude the trial court did not err in finding Father

failed to establish a change in circumstances, and affirm.

      Suwannee Karner (“Mother”) and Father have two minor children, and

once divorce proceedings began, Mother filed a Complaint for Support. The

court issued various orders, setting the support amount and addressing

petitions for modification and petitions for contempt. In September 2017, the

court ordered Father to pay $1,400 per month in child support. This order was

“based on [Father’s] net monthly income of $2,284.00 and [Mother’s] net

monthly income of $1,734.52.” Order, filed Sept. 22, 2019. The court provided

that it “deviate[d] from the guidelines as [Father] had no living expenses or

vehicle expenses.” Id. Additional petitions for modification were filed, which

the court denied.
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      In January 2019, Father filed a petition for modification of the support

order. Mother filed a petition for contempt. The court conducted a hearing

and, on March 1, 2019, it modified the support award to require Husband to

pay $1,210.00 per month in child support. The court determined that Father

had a net monthly income of $2,447.89 and Mother had a net monthly income

of $1,629.28. N.T., 3/1/19, 4-5. The court found that “Father did intentionally

do things to reduce his income” and “that he is receiving significant support

from his parents.” Id. at 7. The court dismissed the contempt petition. Mother

filed a notice of appeal, and this Court dismissed the appeal in July 2019

because Mother had not filed a brief.

      On March 12, 2019, 11 days after the court ruled on Father’s petition

for modification and entered the order setting the support amount, Father filed

another petition for modification. The court denied it in August 2019. The court

found that “[Father’s] testimony regarding his alleged decrease in income

lacks credibility” and that “his latest alleged change of his employment status

is the result of his continued efforts to intentionally reduce his income or to

avoid his obligation to support his children due to his desire to harm the

Mother of the children.” Order, filed Aug. 7, 2019. It concluded that “Father

continued to have the ability to earn a gross income of at least $17.50 per

hour working 40 hours per week or $36,400.00 per year.” Id. Father filed a

notice of appeal, and this Court dismissed it because Father failed to file a

docketing statement.




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      In August 2019, Mother filed a petition for modification. Mother

attempted to withdraw the petition, but Father did not agree to the

withdrawal.

      The court held a hearing where Father testified about his income from

September and October, as well as prior months, and asked the court to base

the support on actual income, rather than earned capacity and reduce the

amount of child support. Father testified that at the end of March he began

training fighters in Muay Thai, a form of martial arts, and he continued to train

fighters at the time of the hearing. N.T., 10/18/19, at 12-13. From August

through October, he said he earned a gross income of between $2,000 and

$2,500 per month. Id. at 15-16. He testified that he spends $200 per month

on gas for his employment. Id. at 28-29. Mother testified that she works an

average of 25 hours per week and, as of September 10, 2019, she had earned

$19,823.50 in 2019. Id. She pays $76 per week for childcare. Id. at 55. The

court denied the petition for modification, and Father filed this timely appeal.

      Father raises the following issues:

         1. Did the trial court abuse its discretion and err as a matter
         of law in determining there has been no change in
         circumstances?

         2. Did the trial court abuse its discretion and err as a matter
         of law in failing to recalculate appellees actual income
         considering the substantial evidence admitted at trial?

         3. Did the trial court err as a matter of law by miscalculating
         the entire support order by not using both parties actual
         combined income?




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         4. Did the trial court abuse its discretion and err as a matter
         of law in failing to appropriately adjust the current support
         order based on the pay stubs that [Mother] provided to
         Domestic Relations?

         5. Did the trial court abuse its discretion and err as a matter
         of law in failing to calculate [Father’s] support obligation and
         make the proper adjustments, according to the 50/50
         shared custody schedule. See Rule 1910.16-1 (E) Shared
         Custody and Rule Pa.R.C.P. No. 1910.16-4(c).

         6. Did the trial court abuse its discretion and err as a matter
         of law in failing to not instruct Domestic Relations to re-
         calculate [Mother’s] current net income, based on the most
         recent pay stubs that [Mother] provided on October 18,
         2019?

         7. Did the trial court abuse its discretion and err as a matter
         of law by failing to assign appellee to a similar full time
         earning capacity?

         8. Did the trial court abuse its discretion and err as a matter
         of law by determining there is no change in [Mother’s]
         childcare costs?

         9. Did the trial court abuse its discretion and err as a matter
         of law in failing to recalculate support based on both parties
         combined monthly income?

Father’s Br. at 3-5 (trial court answers omitted).

      Some of the issues Father asserts are not properly before us. Father

appealed from an order denying a petition for modification of a child support

order, and therefore the sole question is whether the court abused its

discretion in denying modification, that is, whether the court properly found

no changed circumstances. To the extent Father attempts to raise issues

unrelated to the finding of no changed circumstances, the issues are not

properly before us.




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      We review an order denying a petition for modification of a child support

order for an abuse of discretion, “namely, an unreasonable exercise of

judgment or a misapplication of the law.” Plunkard v. McConnell, 962 A.2d

1227, 1229 (Pa.Super. 2008).

      “An award of support, once in effect, may be modified via petition at

any time, provided that the petitioning party demonstrates a material and

substantial change in their circumstances warranting a modification.” Id.; see

also 23 Pa.C.S.A. § 4352(a). The party requesting the modification has the

“burden of demonstrating a ‘material and substantial change.’” Id.

      Father alleges that Mother’s testimony supports a finding that she had

decreased child care expenses and that this alleged decrease, coupled with

Mother’s pay stubs, establish a change in circumstances. He argues that he

“is responsible for providing food, shelter and clothing for their two young

children during his fifty[-]fifty custodial times” and “[t]he current order forces

[Father] well below the federal poverty level.” Father’s Br. at 12.

      Here, the trial court concluded Father had not established a change in

circumstances since the entry of the August 2019 order. It reasoned:

         At the modification hearing, Father submitted his Profit/Loss
         Statement and various exhibits relating to Mother’s income.
         Mother submitted various documentation related to
         childcare expenses. The aforesaid exhibits did not confirm
         that Father’s net monthly income had been reduced. If
         anything, they confirm that Father has been slowly but
         successfully increasing his net monthly income.

         Upon reviewing the evidence submitted we found that
         Father did not meet his burden of showing a material and


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       substantial change to his circumstances since the Order on
       August 7, 2019.

       The history of this case established that prior to the breakup
       of the parties’ marriage, Father had successful martial arts
       gyms and also took trips to Thailand with martial arts
       students. It also showed that the parties enjoyed an upper
       middle class living. Upon the breakup of the marriage,
       Father’s businesses suddenly failed and their house went
       into foreclosure. Father then moved into his parents’ home,
       used a vehicle provided by them and worked in their
       landscaping business. We deviated from the guidelines in
       the original support determination due to the fact that
       Father had no living expenses since his parents were
       providing all of them for him. At that time we believed that
       the alleged failure of his businesses was caused by him in
       an effort to avoid support and possible equitable distribution
       payments to Mother.

       In response Father moved out of his parents’ home and into
       a home he was “renting.” The evidence established that the
       rented home was owned by his parents. Father later alleged
       he was laid off by his parents over the winter. Later, when
       his unemployment benefits were expiring and the
       landscaping season was resuming, his position was that his
       parents closed their landscaping business and he therefore
       had no job to return to. He then elected to resume his
       involvement in the martial arts business by becoming a
       trainer.

       All along, Mother maintained that Father had simply
       transferred his business to friends and was purposely
       reducing his income. While Mother was not able to produce
       concrete evidence to support her belief, we found that the
       circumstantial evidence showed that her belief was true.
       However, throughout the proceedings in this case, we felt
       that entering a support order based on Father’s former
       earnings, while possibly justified, would not serve any useful
       purpose. Therefore, throughout the history of the case, we
       entered orders based on what we determined Father could
       actually pay based on his earnings or earning capacity at
       the time we entered each Order.

       Given the long history of this case, we saw all of Father’s
       efforts as an attempt to intentionally reduce his income or


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         avoid his support obligation due to his desire to harm
         Mother. The Domestic Relations Officer who held the
         conference in this case, also concluded that there was no
         change in circumstances and that [Father’s] latest petition
         should be denied and dismissed. We agreed and did so. This
         was the third petition for modification of support filed in
         2019 alone. In entering our previous Order modifying
         support, Father was assigned an earning capacity of
         $34,400 per year that continues to align with his skills and
         employment status.

Trial Court Opinion, filed Jan. 7, 2020, at 7-9.

      The trial court did not abuse its discretion in concluding Father did not

establish a change in circumstances since the August 2019 Order. Father

testified regarding his income and admitted into evidence an earning/loss

report, and presented evidence regarding Mother’s earnings and child care

expenses. Such evidence, however, did not establish a material and

substantial change in circumstances. The court properly refused to modify the

child support order.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/20




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