J-S28021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.M.A.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

L.J.A.,

                        Appellant                   No. 1290 MDA 2014


                Appeal from the Order entered May 29, 2014,
             in the Court of Common Pleas of Columbia County,
                 Domestic Relations, at No(s): DR-00317-13




T.M.A.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

L.J.A.,

                        Appellee                    No. 1291 MDA 2014


                Appeal from the Order entered May 29, 2014,
             in the Court of Common Pleas of Columbia County,
                 Domestic Relations, at No(s): DR-00317-13

BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED MAY 28, 2015

      In these cross-appeals, T.M.A. (“Mother”) and L.J.A. (“Father”) appeal

from the trial court’s order establishing an allocated award of child and

spousal support.

      The trial court summarized the pertinent facts as follows:
J-S28021-15


            The facts are that the parties were married on June 17,
         2011, and separated on May 20, 2013. They had one child
         [who was born in 2012]. Just before the first custody
         conference, custody of the parties’ son was changed from
         primarily with [Mother] to shared custody. [Mother] is
         employed as an elementary school teacher grossing about
         $37,600 per year (netting about $2853.21 per month).
         The parties own a triplex rental.      [Mother] pays the
         mortgage and continues to live in one unit.

            [Father] is a skilled nurse.       In 2013, he earned
         $106,000 as a nurse. In 2014, he voluntarily changed
         jobs. He said he wanted more time with his son. He lives
         in Columbia County with his parents and has shared
         custody time with the child. He works 24 hours each week
         and makes about $49,000 per year. At that rate, if he
         worked forty hours he could make about $70,000 per year.
         If he fulfilled his actual earning capacity, he could make
         $106,000 per year, which he was earning when he
         voluntarily left his job. He voluntarily reduced his income
         by $57,000 per year, a decrease of over 50%.

Trial Court Opinion, 9/9/14, 3-4 (bold and underline in original).

      On October 18, 2013, Mother filed a complaint seeking support for

herself and the parties’ child.      The parties had executed a Marriage

Settlement Agreement (“MSA”) on or about August 1, 2013, which was to

serve “as a full and final settlement of all matters of joint concern for the

parties, including all property rights, debts, spousal support, child custody,

visitation, and child support.”   MSA, 8/1/13, at 1.     Within the MSA, the

parties further asserted “[d]ue to irreconcilable differences the marriage of

the parties has been irretrievably broken and there is no possibility of

reconciliation.” Id. at 2.

      Pertinent to the present appeals are the following provisions:

         9. CHILD SUPPORT

                                     -2-
J-S28021-15


                The parties will come to an agreement once
           [Mother] returns to work after maternity leave
           beginning Oct. 1, 2013.

                 Child support payments will commence the 1st day
           of the month following the entry of a divorce decree.
           Child Support payment must be paid by the 1st day of
           the month directly to the custodial parent.

                                   ***

           11. DIVISION OF ASSETS. Each party shall receive
           any and all, tangible and intangible, property in his/her
           possession unless stated otherwise in this agreement.

           a.    Marital Home.

                 The parties agree [Mother] will remain in the
                 home . . . and have sole and absolute ownership
                 of the same. [Father] will not continue to be
                 bound for all mortgages on the property.

                                   ***

           13. SPOUSAL SUPPORT/ALIMONY. [Father] agrees at
           this time to pay spousal support to cover all monthly
           and child expenses until October 1, 2013.

MSA, 8/1/13, at 4-6.

     A conference was held and an interim order of support was entered.

Thereafter, Father filed a request for a de novo hearing. On February 13,

2014, a Special Hearing Officer, Michael P. Dennehy, Esquire, took testimony

from the parties regarding the support action. That same day, a final order

of support was entered, requiring Father to pay $807.75 a month payable

bi-weekly via wage attachment effective October 18, 2013. This award was

based on the Special Hearing Officer’s determination that Mother had a net

monthly income of $3,165.17, and that Father’s net monthly income was



                                   -3-
J-S28021-15



$4,278.88.     The monthly support order was allocated $448.05 for child

support, $199.70 for spousal support, and $160.00 for arrears.

      When filing his report, the Special Hearing Officer wrote that he used

the actual incomes for both of the parties. He noted that “[w]hile [Father]

testified to a $49,000 annual income, his hourly rate times number of hours

times 52 [weeks] per year yields annual income of $70,661.76.”            Special

Hearing Officer’s Report, 2/27/14.       Finally, the Special Hearing Officer

further noted that union dues and mandatory retirement was deducted from

Mother’s    monthly   income,   and   that   the   substantial   shared   custody

adjustment applied.

      Both parties filed exceptions.     Argument on these exceptions was

scheduled for May 9, 2014, and a briefing schedule was established. While

Mother filed a brief, Father did not. By order entered May 29, 2014, the trial

court granted the parties’ exceptions in part and denied them in part. In its

order, the trial court directed Father to pay Mother $697.08 per month in

child support and $218.58 in spousal support. The trial court also directed

Father to pay $160.00 per month toward arrears. In all other respects, the

trial court affirmed the Special Hearing Officer’s report.

      In a footnote, the trial court explained:

               This order is based on [Mother’s] actual earnings
           ($37,600.00 per year) and 1/3 of the marital rental income
           since she is paying the mortgage. (It is assumed that she
           is not paying the taxes and insurance, otherwise the 1/3
           income would not be attributed to her since it would likely
           all go to the rental taxes and insurance.) The mortgage
           payment is for a three unit dwelling. She is living in one

                                      -4-
J-S28021-15


        unit. [Father’s] income is set at $70,661.76 which the
        court finds to be at least his earning capacity. He only
        works 39 weeks per year and 24 hours per week. If he
        would work 52 weeks per year (24 hours per week!), he
        would make $70,661.76.        Importantly, he left a job
        voluntarily where he was making $106,000 per year.
        There is some question as to whether an adjustment
        should be utilized for shared custody.        Even if the
        adjustment applies in this case, an adjustment for shared
        custody should not and is not utilized for several reasons.
        First, [Father] has minimal extra expense associated with
        his custody periods. Second, [Father] has chosen to work
        part-time (24 hours per week) and, in fact, has chosen to
        leave a job which pays considerably higher wages. Third,
        [Mother] continues to provide housing for the child as a
        permanent residence. Finally, to the extent this order is
        considered an upward deviation, the same is appropriate
        for the forgoing reasons.

Order, 5/29/14, at 1, n.1.    Following the trial court’s denial of Father’s

motion for reconsideration, Father filed a timely appeal, and Mother filed a

timely cross-appeal. Both the parties and the trial court have complied with

Pa.R.A.P. 1925.

     In his appeal, Father raises the following issues:

        1. Whether the Trial Court abused its discretion and
        committed an error of law in assigning 1/3 of the income
        from the marital triplex (home) to [Mother] as income
        when she receives the entire amount each month?

        2. Whether the Trial Court abused its discretion and
        committed an error of law in assigning [Father] an earning
        capacity of $70,661.76 when his job requires alternative
        hours and is a significantly better job than his previous
        position, especially given the benefits available and his
        availability to care for the minor child?

        3. Whether the Trial Court abused its discretion and
        committed an error of law in awarding spousal support to
        [Mother] since the calculations based on [Issues] 1 and 2


                                    -5-
J-S28021-15


         would effectively eliminate spousal support, and since
         [Mother] waived the spousal support by written
         agreement?

         4. Whether the Trial Court abused its discretion and
         committed an error of law in failing to hold a hearing
         and/or argument on the record with regard to the
         exceptions?

Father’s Brief at 3-4.

      In her appeal, Mother raises the following issues:

         I. Did the Trial Court err in failing to consider [Father’s]
         exceptions waived where he failed to file a Brief as
         required by Order of Court [] and the Local Rules of the
         26th Judicial District?

         II. Should [Father’s] appeal of spousal support in the
         allocated Order of May 29, 2014 be quashed as
         interlocutory?

         III. Did the Trial Court properly assign one third (1/3) of
         the rental income from the marital triplex to Wife when the
         entire rental received is applied to the mortgage,
         maintenance, and upkeep of the triplex?

         IV. Did the Trial Court properly award [Mother] spousal
         support where there was no express waiver of spousal
         support in the [MSA] signed by the parties and any
         ambiguity must be construed against [Father]?

         V. Did the Trial Court [follow] proper procedure during the
         May 2014 Exception Argument?

         VI. Did the Trial Court err in assigning an annual earning
         capacity to [Father] of only [$70,661.76] in light of his
         unwarranted and voluntary reduction of income from
         [$106,323.71] per year?

         VII. In the alternative, did the Trial Court err in failing to
         assign [Father] an earning capacity based upon a full-time
         position?

Mother’s Brief at 5.


                                     -6-
J-S28021-15


      Our standard of review is well settled:

             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 [that] 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.


Morgan v. Morgan, 99 A.3d 554, 556-57 (Pa. Super. 2014) (citation

omitted).

      We first summarily dispose of certain issues raised by the parties. In

response to Father’s fourth issue and Mother’s fifth issue, our review of the

certified record reveals that the proceedings in this support action fully

complied with the alternative hearing procedure set forth in Pa.R.C.P.

1910.12. Although Father relies on Melzer v. Witsberger, 480 A.2d 991

(Pa. 1984) and Caplan v. Caplan, 583 A.2d 823 (Pa. Super. 1990) to argue

otherwise, he does not identify any specific procedural rule from these

decisions that required his support action to proceed differently.

      Next, in support of her first issue, although Mother correctly cites the

pertinent local rule and asserts that Father did not file a brief, she cites no

persuasive authority for her claim that all of Father’s issues should be

considered waived on appeal.      Mother cites Boniella v. Com., 958 A.2d

1069, 1072 n.8 (Pa. Comwlth. 2008), for the proposition that undeveloped


                                     -7-
J-S28021-15



claims will not be considered by an appellate court. Here, however, the trial

court considered the merit of Father’s exceptions. Thus, we reject Mother’s

first issue.

      Finally, the parties do not dispute the absence of a final divorce

decree. As such, their claims relative to spousal support are interlocutory.

See Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super. 2003)

(explaining that with respect to allocated support orders, while the child

support portion is immediately appealable, the portion attributable to

spousal support is interlocutory and thus not appealable until a divorce

decree is entered and the economic claims of the parties are resolved).

Thus, we do not consider further Father’s third issue or Mother’s fourth

issue, and agree with Mother’s second issue, which asserts the interlocutory

nature of Father’s appeal of spousal support.

      In their remaining issues, the parties claim that the trial court erred in

determining their respective incomes available for support. We first address

the calculation of Mother’s income. In his first issue, Father contends that

the entire $1,200.00 a month in rental income that Mother receives should

be included in the determination of her income available for support. See

Father’s Brief at 13-14. In her third issue, Mother asserts that the trial court

properly assigned only one-third of the rental income to her. We agree with

the trial court.

      Rule 1910.16-2 of the Pennsylvania Rules of Civil Procedure governs

the calculation of a parent’s net income available for support. Included in

the definition of “monthly gross income” is “net income from business or

dealings in property” and “… rents …”      Pa.R.C.P. 1910.16-2(a)(2) and (3).


                                     -8-
J-S28021-15



      At    the    Special   Hearing     Officer’s   hearing,   Mother   presented

uncontradicted testimony that she did not derive any net income from the

property. See N.T., 2/13/14, at 13. She concedes, however, “it is only fair

to apportion some of the rent she receives to her since she has use of one of

the units in the property which could otherwise be rented.” Mother’s Brief at

13.   The trial court agreed, assigning her one-third of the monthly rental

receipts as income. We discern no abuse of discretion. See e.g., Belcher

v. Belcher, 887 A.2d 253, 255 (noting the master’s calculation of the

father’s net rental income as part of his monthly income available for

support).

      We next consider the merits of the parties’ issues regarding the

calculation of Father’s income available for support. In support of his second

issue, Father asserts that the trial court “erred and abused its discretion in

assigning an earning capacity to [him] above his actual earnings where there

is clear evidence, as confirmed by the Special Master, that [Father] was

losing his hours at his prior employment and his current job at Lankenau

[Hospital] provided equivalent income and allowed him to be the primary

caretaker of the minor child on weekdays (4 or 5, depending on the week).”

Father’s Brief at 11.    According to Father, the trial court “further failed to

recognize any exception to the earning capacity standard in the Rules of

Procedure and the nurturing parent doctrine.” Id.

      In her sixth and seventh issues, Mother argues that Father “voluntarily

assumed a lower paying, part-time position in order to avoid his support

obligations.”     Mother’s Brief at 9.    According to Mother, “[Father’s] 2013

earnings [of $106,000] should be used as [a] barometer of his earning



                                         -9-
J-S28021-15



capacity.”   Id. at 10. Alternatively, Mother argues that Father “should be

assessed with an earning capacity based upon a full-time nursing position.

Under no circumstances should [Father] be permitted to have his support

[obligation] based upon working only 72 hours every four weeks.” Id.

      “When determining income available for child support, the court must

consider all forms of income.” Berry v. Berry, 898 A.2d 1100, 1104 (Pa.

Super. 2006) (citation omitted). Moreover, in determining a parent’s ability

to provide support, the focus is on earning capacity rather than on a parent’s

actual earnings. Reinert v. Reinert, 926 A.2d 539 (Pa. Super. 2007). Rule

1910.16-2(d)(4) of the Pennsylvania Rules of Civil Procedure provides the

domestic relations hearing officer and/or trial court with the methodology to

determine whether a party should be assessed an earning capacity.          The

subsection provides:


         (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
         will be generally no effect on the support obligation.

            (2) Involuntary Reduction of, and Fluctuation 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.




                                     - 10 -
J-S28021-15


           (3) Seasonal Employees. Support orders for seasonal
        employees, such as construction workers, shall ordinarily
        be based upon a yearly average.

           (4) Earning Capacity. If the trier of fact determines
        that a party to a support action has willfully failed to obtain
        or maintain 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 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).

     This Court has observed:

           It is settled law that a party cannot voluntarily reduce
        his earnings in an attempt to circumvent his support
        obligation. In fact, we view any sudden reduction in
        income with suspicion. Where a party assumes a lower
        paying job or willfully fails to obtain appropriate
        employment, the support obligation is determined by his
        assessed earning capacity.

Woskob v. Woskob, 843 A.2d 1247, 1254 (Pa. Super. 2004) (citations

omitted).

     Here, the trial court, referencing its explanatory footnote in the May

29, 2014 order, found Father to have an earning capacity “of ‘at least’

$70,661.76.” Trial Court Opinion, 9/9/14, at 4. In considering the parties’


                                    - 11 -
J-S28021-15



exceptions to the calculation of Father’s net income, the trial court

“acknowledge[d] that [Father] voluntarily left his job which was paying

$106,000.00, which should be his earning capacity.” Id. at 4-5. Thus, the

trial court asks this Court to remand the case for re-calculation of Father’s

support obligation.

      Our review of the record supports the trial court. “[T]he trial court, as

the finder of fact, is entitled to weigh the evidence and assess the credibility

of the witnesses.”    Morgan, 99 A.3d at 559 (citation omitted).       The trial

court, as fact finder in this case, concluded that Father voluntarily left a

higher-paying nursing position. While Father’s 2013 income came from two

different employment sources, the record does not support Father’s

assertion that the two jobs equate to more than one full-time position. See

Father’s Brief at 16.     Moreover, there are insufficient facts of record to

support the application of the “nurturing parent doctrine” to Father.      See

generally, Frankenfield v. Feeser, 672 A.2d 1347 (Pa. Super. 1996).

      In sum, because our review of the record supports the trial court’s

determination that Father should be assigned an earning capacity higher

than his actual earnings and consistent with past earnings, we remand only

for the re-calculation of Father’s net monthly income available for support.

In all other respects, the trial court’s order is affirmed.




                                      - 12 -
J-S28021-15



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

proceedings consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/2015




                                  - 13 -
