J-A10014-14

                             2014 PA Super 176

SHERI A. MORGAN,                         : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
DANIEL T. MORGAN,                        :
                                         :
                 Appellant               : No. 1463 MDA 2013

                Appeal from the Order entered July 11, 2013,
                  Court of Common Pleas, Franklin County,
                    Domestic Relations at No. 2009-557


SHERI A. MORGAN,                         : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellant               :
                                         :
           v.                            :
                                         :
DANIEL T. MORGAN,                        :
                                         :
                 Appellee                : No. 1525 MDA 2013

                Appeal from the Order entered July 11, 2013,
                  Court of Common Pleas, Franklin County,
                    Domestic Relations at No. 2009-557

BEFORE: DONOHUE, ALLEN and STABILE, JJ.

OPINION BY DONOHUE, J.:                            FILED AUGUST 21, 2014

                                                                       rder of

court regarding his child support obligation for C.M., his un-emancipated
                                          1
                                              Mother has filed a cross-appeal,


1
  C.M. is severely autistic and cannot live on his own. In his appeal, Father
does not contest his obligation to provide support for C.M., only the amount
of support determined by the trial court.
J-A10014-14




amount of thereof.     Following our review, we affirm the trial court with



issues raised by Mother in her cross-appeal.

      In 2003, the parties were divorced in Maryland. In conjunction with

the divorce, the parties entered into a property settlement agreement



alimony and child support.2

obligation would remain fixed until July 1, 2007, after which either party

could seek to modify the amount of the obligation.              The PSA was

incorporated into the divorce decree.

      On May 3, 2007, Father registered the Maryland divorce decree and

PSA in Franklin County.    Almost immediately thereafter he filed a petition

seeking to reduce his alimony obligation.        In response, Mother filed a




obligation, including an appeal to this Court, our remand to the trial court for

further evidentiary proceedings, and then a subsequent appeal.

      In 2011, as the second appeal from the alimony proceedings was

pending before this Court, Mother filed a support action because Father told


2
    The parties are the parents of three children. At the time of the
proceedings underlying this appeal, all of the children had attained the age
of majority.


                                     -2-
J-A10014-14


her that he was going to cease paying child support for C.M. As part of the



information to the trial court that revealed that Father had been lying about

his income and submitting falsified documents, including federal tax returns,

to the trial court in connection with the alimony action.       It was later

discovered that the tax returns Father produced in the support action   after

his deceit in connection with the alimony proceedings had been discovered



protracted discovery period. As a result, the parties did not appear before



a second day of hearings held in September 2012.             The trial court



providing that it would apply retroactively to May 3, 2007 (the date Father

                                           d PSA in Franklin County) and



support award, the trial court assigned Mother an income of $92,5003 and



prescribed by the Child Support Guidelines because of the minimal custodial

time Father has with C.M. On July 11, 2013, the trial court amended this

order to provide, inter alia


3
  The trial court assessed an earning capacity of $80,500 against Mother and
then added $12,000 this figure, which represents the $1000 per month



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J-A10014-14


retroactively to May 3, 2007. Father timely appealed and Mother timely filed

her cross-appeal.

      Our scope of review when considering an appeal from a child support

order is as follows:

            When evaluating a support order, this 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.
            In addition, we note that the duty to support one's
            child is absolute, and the purpose of child support is
            to promote the child's best interests.

McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (internal

citations omitted).

      We begin with the issue presented by Father in his appeal, which he



not merged, into a divorce



was arrived at through an agreement, rather than support proceedings, and

because this agreement was incorporated, rather than merged, into the

divorce decree, the trial court lacked jurisdiction to modify his support

obligation. Id. at 22-25.



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J-A10014-14


     Father is correct that in our law, martial settlement agreements that

are merged into a divorce decree are treated differently than agreements

that are incorporated into the divorce decree. See Jones v. Jones, 651

A.2d 157, 158 (Pa. Super. 1994) (holding that an agreement that merges

into the divorce decree is enforceable as a court order, but an agreement

                                rvives as an enforceable contract [and] is



to the provisions of such agreements that concern matters of child support

or custody.   The Divorce Code specifically provides that regardless of

whether an agreement between parties is merged or incorporated into the



visitation or custody shall be subject to modification by the court upon a

showing of changed circums                                      see also

McClain, 872 A.2d at 862-63. The Pennsylvania Supreme Court explained



action may bargain between themselves and structure their agreement as

best serves their interests. They have no power, however, to bargain away

                                Knorr v. Knorr, 588 A.2d 503, 505 (Pa.



into their divorce decree, the trial court had jurisdiction to modify the




                                  -5-
J-A10014-14


                                                         4
                                                             There is no merit to
                 5



      We now turn our attention to the issues Mother raises in her cross-

appeal.   She first argues that the trial court erred by assigning her an

                                                 -the-

of a caretaker for C.M. roughly would be equivalent to the income she could



Brief at 36-42.

      Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4), addressing

earning capacities, provides as follows:

               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
               may impute to that party an income equal to the
               party's 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


4




26-27. Father completely fails to address subsection (b), the salient
provision, in his argument.
5
    As this appeal was pending, Father filed an Application for Remand, in

jurisdiction and posited that because the trial court lacked jurisdiction to
modify his support obligation, there was no valid order underlying his
appeal. See Application for Remand, 10/1/13. As we have found that the

application.


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J-A10014-14


           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) (emphasis added).



would consume her income base, explaining as follows:

           This [c]our
           income she did receive from employment would be
           consumed by the need for an alternative caregiver
           for [C.M.] However, the [c]ourt notes that this
           argument is entirely speculative.        Until Mother
           actually gets a job, this [c]ourt has no way of
           knowing how many hours that job would require
           Mother to be in the office or how much time Mother
           would spend commuting to and from work. The
           [c]ourt also does not have sufficient evidence as to
           how Mother currently handles care for [C.M.] when
           she is unavailable to provide such care due to her
           extensive work with Democratic politics and when
           she is completing work toward her Ph.D. outside the
           home.     Therefore, this [c]ourt cannot accurately
           determine for how many hours Mother would need to
           hire an alternative caregiver in the case of her return
           to the workforce. The [c]ourt also notes its concern


           reserved for a future proceeding in which the issue is
           not merely speculation. Mother may be entitled to
           compensation or credit for her expense in providing
           alternate care for [C.M.], but that issue is not
           currently before this [c]ourt and thus this [c]ourt will



                                    -7-
J-A10014-14


            not deduct any amount f
            capacity for that purpose.

Trial Court Opinion, 6/10/13, at 17.

      We see in this explanation that the trial court considered child care

costs as required by Pa.R.C.P. 1910.16-2(d)(4), but concluded that no

                             ning capacity was warranted because there was

no credible evidence as to the cost or frequency of need for a caregiver.

There is no requirement in the Rule that the trial court must adjust the

                                                                  ealth, work



which the earning capacity is being assigned; the Rule requires only that the

trial court consider these factors. See Pa.R.C.P. 1910-16.2(d)(4). The trial

court did so in this instance, and it rejected the evidence Mother put forth on



                                                      Krankowski v. O'Neil,

928 A.2d 284, 287 (Pa. Super.

will not be disturbed on appeal unless the trial court failed to consider

properly the requirements of the Rules of Civil Procedure Governing Actions

for Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying

                Id. at 286.    As recounted above, the trial court properly

considered the requirements of Rule 1910.16-2(d), and so we may not

disturb its determination.




                                       -8-
J-A10014-14


      In her second issue, Mother argues that the trial court erred in

calcula

47. The trial court arrived at the $80,500 figure based upon the testimony



trial court stated,

             At the hearing
             vocational expert, testified regarding his vocational
             assessment of Mother, based on an interview he had
             with her and her educational background.          Mr.

             experience [and] education, he would consider her to
             be extremely employable. He testified that he had
             researched employment opportunities that Mother

             degree. Among these opportunities were openings
             for a research coordinator, resource coordinator, and
             nurse analyst. The salaries for these available jobs
             ranged from $64,000 to $97,000. The [c]ourt
             believes Mr. Bierley testified credibly and will rely on

             The average range of these salaries is $80,500 and
             therefore, this [c]ourt will use this figure in


Trial Court Opinion, 6/10/13, at 17-18 (citations to notes of testimony

omitted).

      We have reviewed the record and must conclude that it does not




See N.T., 7/2/12, at 100-01. However, Mr. Bierley further testified that at




                                      -9-
J-A10014-14


the time of the hearing, Mother could expect to earn approximately $60,000

to $65,000, and only after a few years in the workforce would she be able to

earn the higher end of the salary range he projected. Id. at 100, 102, 104.



had been out of the workforce for twelve years at the time of the hearing,

had an immediate earning capacity of $80,500. The trial court abused its

discretion in this regard, and so we vacate this portion of its order and

                                                              See Glover v.

Severino



      Mother also argues that the trial court erred in applying her earning

capacity retroactively to the date she filed the support complaint, May 3,

                                                                     in 2008,

she lacked the educational credentials to qualify for the jobs, and therefore,

                                                                         -52.

However, the record reveals that Mr. Bierley testified that Mother could

expect to earn within the same range (between $65,000 and $90,000) for

jobs with her RN degree, and that such salaries were not dependent on

                                                                         -03.

                                                    Id. at 116. Accordingly,

we find no merit to this argument.




                                     - 10 -
J-A10014-14


      In her final issue, Mother complains that the trial court erred by not

including an upward deviation from the Support Guideline calculation of

                                                         of C.M. less than five



a Comment to Pa.R.C.P. 1910.16-4. Rule 1910.16-4 sets forth a formula for

the calculation of a child support obligation and includes a subsection

providing that this obligation may be reduced when the child or children are

in the custody of the obligor for at least 40 percent of the time. Pa.R.C.P.

1910.16-

deviation should be considered in cases in which the obligor has little or no

                                             -16-4, Comment (2010). Mother

urges that because in this case, Father has virtually no contact with C.M.,

the trial court erred by not including an upward deviation.



finding that Mother has denied Father access to C.M. and that Father cannot

turn to the courts for access to his son because C.M. is over 18 years of age,

and therefore not subject to a custody action. Trial Court Opinion, 6/10/13,

at 19-

                                                                      whether

justified or not   to allow Father access to C.M. on perhaps as little as one

occasion is well taken.   However, the Comment to Rule 1910-16(4) only

suggests that upward deviation be considered; it does not require it. In this



                                    - 11 -
J-A10014-14




not allowed him to see C.M., and it was unwilling to encourage such

behavior by Mother by tying a portion of the child support to a drastically

reduced custody schedule, over which Mother has complete control.          The



                                see N.T., 9/20/12, at 94-95, 120, and our law

does not require that an upward deviation must be applied. We therefore

find no abuse of discretion by the trial court.

      In conclusion, we summarize our disposition of the various matters




to Mother and remand for further proceedings with regard to this issue. We

affirm the trial court order in all other respects.

      Order affirmed in part and reversed in part.         Case remanded for

further   proceedings.      Application   for   remand   denied.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2014




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