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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HEATHER M. MILLER,                               IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellant

                        v.

    CHRISTOPHER M. MILLER,

                             Appellee                    No. 485 WDA 2018


                    Appeal from the Order March 29, 2018
                 In the Court of Common Pleas of Erie County
        Domestic Relations at No(s): NS2015-00162/PACSES 375115123

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 27, 2019

        Heather M. Miller (Mother) appeals from the March 29, 2018 support

order issued pursuant to this Court’s remand instruction contained in our

memorandum opinion1 filed in response to Christopher M. Miller’s (Father)

appeal from the trial court’s January 8, 2017 order. We affirm.

        The trial court set forth the following information in its Pa.R.A.P. 1925(a)

opinion, stating:

              Mother, on April 22, 2015, filed a Complaint for Support
        against Father requesting support for the parties’ four minor
        children, as well as spousal support. Pursuant to the parties’
        agreement, a June 16, 2015 Order [was] entered setting Father’s
        monthly support obligation at $2,840, plus arrears. The order
        applied $907.13 monthly to [alimony pendente lite] APL,
        $1609.54 monthly to child support and ordered a $323.33
        monthly mortgage contribution. The Order established Father’s
____________________________________________


1 Miller v. Miller, 181 A.3d 1285 (Pa. Super. filed December 29, 2017)
(unpublished memorandum) (Miller I).
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     monthly net income as $7,359.40 and Mother’s as $1969.80.
     Following Father’s filing of August 5, 2015 and February 4, 2016
     petitions for modification, the support order did not change.

            On October 24, 2016, Father filed another Petition for
     Modification of an Existing Support order alleging that his former
     earning capacity from operating his own masonry company had
     been greatly reduced and [was] unable to be reclaimed. Father
     opined that his actual wages as a mason working for Stewart
     Concrete, a former competitor to Father’s business, should be
     used to calculate his income. Following a support conference, a
     November 17, 2016 Interim Order of Court issued[,] increasing
     Mother’s monthly net income to $2,008.14, maintaining Father’s
     monthly net income at $7,359.40, and decreasing Father’s
     support obligation to $2,548.90, plus arrears. The November 17,
     2016 Interim Order reduced the overall support obligation to
     reflect the emancipation of the parties’ oldest child and removed
     the mortgage contribution requirement. Upon Father’s Demand
     for Court Hearing, the undersigned presided over a January 18,
     2017 de novo hearing and issued an order o[n] the same date
     finding the Interim Order appropriate and making it a final order.
     Father, on February 17, 2017, appealed the January 18, 2017
     Order. The Superior Court remanded the case for recalculation of
     child support using Father’s net monthly income as an employee
     of Stewart Concrete, retroactive to October 24, 2016.

          In accordance with the Superior Court’s decision, a January
     8, 2018 Order issued reducing Father’s monthly net income to
     $3,191.23 and calculating his monthly support obligation as
     $739.80, plus arrears. The order further provided:

          Support is recalculated using [F]ather’s eighteen (18)
          month earning history.          [Father] shall pay
          $739.80/month support for three minor children
          effective 10/24/16. The guideline calculation does not
          call for a Spousal Support obligation. Therefore,
          Spousal Support is terminated retroactive to
          10/24/16. As a result of the retroactive modification
          a significant overpayment exists.        A Notice of
          Proposed Modification will be sent to [Mother] in an
          attempt to resolve the overpayment.

          Mother, on January 23, 2018, filed a Motion for
     Reconsideration. The undersigned, on January 31, 2018, granted

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       Mother’s Motion for Reconsideration and scheduled the matter for
       a March 27, 2018 hearing. Following the hearing, this [c]ourt
       issued its March 28, 2018 Order, which reduced Father’s monthly
       net income to $3,191.23 in accordance with the remand
       instructions and removed the APL award. Mother filed her timely
       appeal.

Trial Court Opinion (TCO), 5/16/18, at 1-3.

       In Mother’s appeal to this Court, she raises the following single issue for

our review:

       Did the trial court err in terminating [Mother’s] [APL] following
       remand by this Court of the parties’ child support case?

Mother’s brief at 4. Notably, Mother does not take issue with the amount

awarded as to child support; she only questions the trial court’s elimination of

the APL award rather than allowing it to remain in effect despite the change

in income.

       The trial court addressed this issue as follows:

            As an initial matter, the parties’ divorce is still pending. As
       Mother’s only issue on appeal involves APL, it appears as though
       the matter is not properly raised on appeal. See Miller v. Miller,
       305 WDA 2017[,] citing Hrinkevich v. Hrinkevich, 676 A.2d 237,
       239 (Pa. Super. 1996).

             Regardless, Mother’s issue on appeal is without merit.
       Counsel argues that it is contrary to the Superior Court’s directive
       to apply Father’s actual income to the APL award. Meanwhile, the
       Superior Court’s statements with regard to APL only went to
       appellate jurisdiction over the same, rather than a directive for
       this court. See Miller v. Miller, …, 305 WDA 2017 at FNs 1 and
       3.[2] The fact that the order was interlocutory for appellate
____________________________________________


2 For purposes of our discussion concerning Mother’s arguments, we quote the
footnotes included in this Court’s Miller I decision, which state as follows:



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       purposes did not divest this court, as the trial court, of jurisdiction
       to modify APL. To the contrary, “[a]n award of [APL] may be
       modified or vacated by a change in circumstances. The award is
       always within the control of the court.” Cook v. Cook, [186 A.3d
       1015, 1023] (Pa. Super. 2018)[,] quoting Litmans v. Litmans, 673
       A.2d 382, 388 (Pa. Super. 1996). While Mother’s argument may
       be technically correct that the Superior Court left the APL order
       intact, the reason was that the Superior Court was without
       jurisdiction to consider the same. This [c]ourt, however, has
       jurisdiction over APL and determined that the purpose of an APL
       award is no longer served when Father’s income is reduced from
       $7,359.40 to $3,191.23. Such a reduction is clearly a change in
       circumstances warranting modification of the APL order.



____________________________________________



       1 Mother filed for divorce during 2015 and, as of the date of the
       January 18, 2017 support hearing, no divorce decree had been
       entered. While we have jurisdiction to consider claims related to
       child support, we cannot address issues related to spousal support
       or [APL] until a divorce decree has been entered and the certified
       record shows that no economic claims remain to be decided.
       Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super. 1996)
       (“[T]he portion of a trial court order attributable to child support
       is final and immediately appealable; however, the portion of an
       order allocated to spousal support is interlocutory.”). Hence, we
       address Father’s arguments only as they relate to his child support
       obligation.

       3 As Father’s appeal of the allocated order relating to APL is
       interlocutory, the calculation of that obligation is not affected by
       our decisions herein. Hrinkevich, supra. To the extent that
       Father’s independent financial obligation to Mother continues after
       the entry of a final divorce decree, he can appeal the trial court’s
       determination at th[at] juncture. Thomas v. Thomas, 760 A.2d
       397, 398 (Pa. Super. 2000) (“[W]hen all economic matters
       involved in a divorce are resolved, any support order can be
       reviewed and corrected when the court finalizes the equitable
       division of the property.”).

Miller I, No. 305 WDA 2017, unpublished memorandum at 1-2, 11 (Pa.
Super. filed December 29, 2017).

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           In making its determination, the Honorable Superior Court
     provided:

           We find that the trial court’s refusal to recognize that
           the imputed obligation is outdated and contrary to
           reality, as shown by the certified record, [and] is
           manifestly unreasonable. Particularly convincing is
           Father’s principled attempt to mitigate the loss of his
           income and to continue to satisfy a support obligation
           that is approximately seventy percent of his monthly
           wages. Stated plainly, to the extent that Father could
           have earned $7,359.40 per month as the owner of a
           masonry business, the certified record does not
           sustain the court’s decision to continue to assess that
           earning capacity at this juncture. As we recognized in
           Novinger [v. Smith, 880 A.2d 1255,] 1247 [(Pa.
           Super. 2005)], “[a]t some point, the courts should
           [revisit the obligor’s] true earning capacity. Since the
           grounds for the court’s use of Father’s earning
           capacity as the basis for determining his support
           obligation, i.e., the appearance of an attempt to shirk
           his financial responsibilities, have diminished since
           Father first stipulated to his net monthly income, we
           conclude that the court abused its discretion in
           denying Father’s petition to modify his support
           obligation. Support should be calculated in light of
           Father’s eighteen month earning history as an
           employee working forty to sixty hours per week rather
           than as the owner of a successful business. Thus, we
           remand the case with instruction for the trial court to
           fashion a guideline child support order utilizing
           Father’s net monthly income pursuant to Pa.R.C.P.
           1910.16-2 retroactive to October 24, 2016, the date
           that Father filed the underlying petition.

     [Miller v. Miller,] Superior Court Non-Precedential Decision,
     December 29, 2017 at 10-11. Despite the Superior Court’s
     assessment of Father’s $7,359.40 assessed earning capacity as
     outdated, contrary to reality, manifestly unreasonable and an
     abuse of discretion, Mother’s argument presumes that said
     earning capacity should be left in place as far as the [APL] award.
     Such an argument is not only contrary to the law of the case, but
     it is contrary to a general sense of justice or logic.


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TCO at 3-4.

     To address Mother’s issue on appeal, we are guided by the following:

           The Divorce Code provides, “In proper cases, upon petition,
     the court may allow a spouse reasonable [APL], spousal support
     and reasonable counsel fees and expenses.” 23 Pa.C.S. § 3702.
     By way of background:

              [APL] is an order for temporary support granted to a
              spouse during the pendency of a divorce or annulment
              proceeding. [APL] is designed to help the dependent
              spouse maintain the standard of living enjoyed while
              living with the independent spouse. Also, and perhaps
              more importantly, [APL] is based on the need of one
              party to have equal financial resources to pursue a
              divorce proceeding when, in theory, the other party
              has major assets which are the financial sinews of
              domestic warfare. [APL] is thus not dependent on the
              status of the party as being a spouse or being
              remarried but is based, rather, on the state of the
              litigation…. [T]he purpose of [APL] is to provide the
              dependent spouse equal standing during the course of
              the divorce proceeding…. [APL] focuses on the ability
              of the individual who receives the [APL] during the
              course of the litigation to defend her/himself, and the
              only issue is whether the amount is reasonable for the
              purpose, which turns on the economic resources
              available to the spouse.

     Schenk v. Schenk, 880 A.2d 633, 644 (Pa. Super. 2005).

           The amount awarded as [APL] is within the sound discretion
     of the trial court and, absent an abuse of discretion, will not be
     disturbed on appeal. Litmans v. Litmans, … 673 A.2d 382, 388
     (Pa. Super. 1996). An award of [APL] “may be modified or
     vacated by a change in circumstances. The award is always within
     the control of the court. It is the burden of the party seeking to
     modify an order of support to show by competent evidence that a
     change of circumstances justifies a modification.” Id. (citations
     omitted). “If an order of [APL] is bolstered by competent
     evidence, the order will not be reversed absent an abuse of
     discretion by the trial court.” Strauss v. Strauss, 27 A.3d 233,
     236 (Pa. Super. 2011).

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             Pursuant to Pa.R.C.P. 1910.16-2, “the amount of support to
      be awarded is based upon the parties’ monthly net income.” The
      same rule directs that, to arrive at monthly net income, the court
      shall deduct specific items from monthly gross income. Pa.R.C.P.
      1910.16-2(c). In addition, the rule instructs that “[m]onthly gross
      income is ordinarily based upon at least a six-month
      average of all of a party’s income.” Pa.R.C.P. 1910.16-2(a)
      (emphasis added).

Cook v. Cook, 186 A.3d 1015, 1022-23 (Pa. Super. 2018) (underlined

emphasis added).

      The essence of Mother’s argument on appeal is that the APL award

should have remained in effect because this Court’s remand in conjunction

with the Miller I appeal only included a directive as to child support and that,

therefore, the trial court had no authority to retroactively terminate the APL

award. Mother further asserts that the modification of APL could only occur

at the conclusion of the final decision or settlement of equitable distribution.

We disagree.

      First, we rely on the portion of this Court’s Cook decision that we have

underlined supra, which allows for modification of APL due to a change in

circumstances and provides that the award remain under the control of the

trial court. Moreover, this Court’s Miller I decision provided that it did not

have jurisdiction over the trial court’s APL ruling. Thus, it remanded the case

back to the trial court for calculations solely dealing with Father’s child support

obligation.   Additionally, we note that the Miller I decision was filed on

December 29, 2017. Therefore, the trial court’s order issued on January 8,

2018, eliminating Father’s APL obligation occurred after this Court’s

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relinquishment of jurisdiction of the entire case.     Nothing in the Miller I

decision indicates that this Court retained jurisdiction of the APL issue.

      Also, we must disagree with Mother’s argument, citing Fried v. Fried,

501 A.2d 211 (Pa. 1985), that the APL order should have remained in effect

until the equitable distribution portion of the matter was concluded (when the

divorce decree would be entered). Mother misinterprets the Fried decision,

which directs that appeals from interlocutory orders, such as an APL order,

are unappealable. Id. at 215. However, the Fried case does not stand for

the proposition that an APL order cannot be modified or vacated due to a

change in circumstances.

      Accordingly, we conclude that the trial court did not abuse its discretion

in directing the elimination of the APL payment to Mother due to a change in

circumstances. We, therefore, affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2019




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