J-S27031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.J.O.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

E.O.

                          Appellant                No. 1303 MDA 2015


                 Appeal from the Order Entered June 29, 2015
                In the Court of Common Pleas of Berks County
       Domestic Relations at No(s): 14 DR 00760 PACSES No. 424114580

E.O.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                     v.

L.J.O.

                                                   No. 1304 MDA 2015


               Appeal from the Order Entered June 29, 2015
              In the Court of Common Pleas of Berks County
    Domestic Relations at No(s): 14 DR 00760R PACSES No. 603114752

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED APRIL 14, 2016

         Husband appeals from the spousal support and child support orders

entered in the Court of Common Pleas of Berks County.       After a careful

review, we quash Husband’s appeal from the order entered in the spousal

support matter, which is docketed at 1303 MDA 2015. We affirm Husband’s




*Former Justice specially assigned to the Superior Court.
J-S27031-16


appeal from the order entered in the child support matter, which is docketed

at 1304 MDA 2015.

      The relevant facts and procedural history are as follows: Wife and

Husband were married on July 23, 1988, and they have one daughter, E.O.,

who was born in February of 1995. On April 10, 2014, Wife and Husband

separated, and on that same date, Wife filed a complaint for spousal

support. Additionally, on April 17, 2014, Wife filed a complaint in divorce,

seeking alimony pendente lite, equitable distribution of the marital property,

and alimony.      Wife’s divorce action, including her request for spousal

support, was docketed in the lower court at 14 DR 00760, PACSES No.

424114580.

      On July 11, 2014, Husband filed a cross-complaint for child support,

which was docketed in the lower court at 14 DR 00760R, PACSES No.

603114752. The trial court entered orders consolidating Wife’s requests for

spousal support and alimony pendent lite with Husband’s request for child

support, and the trial court directed the issues be considered at one hearing.

Thereafter, on January 21, 2015, a hearing was held before Support Master

Molly B. Kleinfelter.

      On March 16, 2015, Master Kleinfelter filed her “Findings of Fact,

Conclusions of Law and Recommendation of the Support Hearing Officer.”

Therein, Master Kleinfelter found, in relevant part, the following:

             Since September 2013, [Wife] has been working as a
      stylist at Amazing Style earning 45% commission on each

                                     -2-
J-S27031-16


     appointment plus 10% commission on each product she sells.
     She is scheduled for appointments. The salon does not have a
     walk-in business. She does not get paid if she does not have an
     appointment. [Wife] testified that she works twenty (20) hours
     per week. She testified that most of the customers pay for their
     service and tips by credit card.          [Wife] provided her pay
     information in Exhibit #1 which reveals that her year-to-date
     cash tips for 2014 totaled $439.00 and that her W2 wages
     totaled $8,322.93 for a total annual gross income of $8,761.93.
     [Wife] testified that after cosmetology school she determined
     that she is allergic to the chemicals used in a regular salon. She
     testified that in order to work as a cosmetologist, she must work
     in a salon that uses the organic product line used at Amazing
     Style. She did not provide any additional testimony regarding
     her ability or inability to work. [Wife] testified that she
     graduated from high school in 1987. After graduation, she
     worked at Sweet Street Dessert Co. from 1989 to 1996. She
     began at minimum wage but increased her pay as she was
     promoted until she was fired because she was not an effective
     supervisor. At the time of her termination, she testified that she
     was earning $12.00 per hour.
            [Wife] also testified that, for a period of time, she worked
     for her mother’s business, DayStar Natural. She testified that
     she worked in 2011 until May 2012 when her mother essentially
     fired her because the parties’ daughter required more
     supervision. [Wife] was then a stay-at-home-mother from May
     2012 until September 2013 when she began working for
     Amazing Styles. [Wife] testified that the job working for her
     mother at DayStar has been filled and is no longer available.
     Additionally, she testified that while she took one course toward
     a certification in nutrition, she does not have $20,000.00 or the
     guarantee of employment to complete the certification.
            [Wife] provided Exhibit #2, a letter and pay statement
     from Ernst Licht. A review of the exhibit reveals that [Wife] was
     hired as a seasonal employee from August 8, 2014[,] until
     December 31, 2014[,] earning $12.00 per hour.              The pay
     statement indicated that she worked 12 hours per week.
            [Wife] testified that she is not looking for another job. She
     testified that she is available for work at the salon, essentially
     on-call, 40 hours per week. At this time she is only scheduled
     for approximately 20 hours per week, but it takes time to “build
     a book” of clients.
            Regarding [E.O.], [Wife] testified that she graduated from
     high school in September 2014. [Wife] testified that [E.O.] has

                                    -3-
J-S27031-16


     not been diagnosed with any condition which would prevent her
     from working. [Wife] testified that before she left the marital
     home, [E.O.] did not want to get a job, and that [E.O.] was not
     cooperative.
                                       ***
            Regarding [E.O.], [Husband] testified that she attended
     and graduated from cyber-school. He testified that sending
     [E.O.] to cyber-school was a family decision. [Husband] testified
     that [E.O.] is suffering from costochondritis and fibromyalgia.
     [Husband] testified that [E.O.] goes to a chiropractor for physical
     therapy and to a psychologist twice a month.            [Husband]
     testified that he is trying to get [E.O.] to qualify for Social
     Security benefits. [Husband] offered Exhibit #10, which is a
     record of the medical visits and payments he has made on
     [E.O.’s] behalf.     [Husband] failed to bring any evidence of
     [E.O.’s] diagnosis.
            [Husband] argues that [E.O.] should not be emancipated.
     In Hanson v. Hanson, 625 A.2d 1212 (Pa.Super. 1993), the
     Court held that the parent has a continuing duty to support a
     child if the child has a mental or physical condition which exists
     at the time the child reaches majority that prevents the child
     from being self-supporting. Hanson, 625 A.2d at 1214. In
     Style v. Shaub, [955 A.2d 403] (Pa.Super. 2008), the Court
     held that there is a presumption that child support terminates at
     majority. This presumption is rebuttable upon proof that the
     child has disabilities that preclude self-support.
            The question in Style, and in this case, then becomes,
     “the test is whether the child is physically and mentally able to
     engage in profitable employment and whether employment is
     available to the child at a supporting wage.” Style, [955 A.2d at
     409 (quotation and citations omitted)]. The adult child has the
     burden of proof on these issues. See Verna v. Verna, 432 A.2d
     630, 632 (Pa.Super. 1981) [(per curiam)].
            I do not find that [Husband] met the burden to prove that
     [E.O.] is unable to engage in profitable employment and to
     prove that employment is not available to [E.O.] at a supporting
     wage. First, [Husband] failed to properly introduce any
     uncontradicted evidence that [E.O.] is disabled.        [Husband]
     testified that [E.O.] is disabled. [Wife] testified that [E.O.] is
     uncooperative.       Second, [Husband] failed to produce the
     testimony of [E.O.]. I do not recommend that the Court require
     [Wife] to continue to pay child support for [E.O.] after
     September 9, 2014.


                                    -4-
J-S27031-16


            Parents are liable for the support of their unemancipated
     children[,] 23 Pa.C.S.A. [§] 4321(3). There is a rebuttable
     presumption that the amount of a child support award which
     results from the application of the guidelines is the correct
     amount of support to be awarded. 23 Pa.C.S.A. [§] 4322(b).
     Child support is a shared responsibility requiring both parents to
     contribute to the support of their children in accordance with
     their relative incomes and ability to pay. Kersey v. Jefferson,
     791 A.2d 419, 423 (Pa.Super. 2002)[.] “The support of a
     spouse or a child is a priority obligation so that a party is
     expected to meet this obligation by adjusting his or her other
     expenditures.” Pa.R.C.P. 1910.16-1(a)(3).
            [Husband] argues that [Wife] should be given an earning
     capacity greater than her earnings at Amazing Style. “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, earning history, and child care responsibilities are
     facts which shall be considered in determining earning capacity.”
     Pa.R.C.P. 1910.16-2 (d)(4). I do not find [Wife] has failed to
     obtain or maintain appropriate employment. [Wife] testified that
     she is working and taking all of the hours offered to her. [Wife]
     is working in a field in which she is trained, certified and
     pursuing additional education in that field. Accordingly, I do not
     recommend that [Wife] be assigned an earning capacity.
                                      ***
            I find sufficient credible and uncontradicted evidence to
     determine that [Wife] has [a] gross monthly earning of $730.16
     based upon her work at Amazing Styles.             From August 1,
     2014[,] until December 31, 2014, this amount was augmented
     by a temporary position at Ernst Licht, which increased her
     earnings to $1,354.16. Utilizing the appropriate tax status,
     [Wife] has a monthly net income from August 1, 2014[,] to
     December 31, 2014[,] of $1,143.67. At all other times, her
     monthly net income is $644.07.
            The Self-Support Reserve also impacts [Husband’s]
     request for child support. The Self-Support Reserve is $931.00
     per month. The [Self-Support Reserve] is intended to assure
     that an obligee with low income retains sufficient income to meet
     their basic needs. [Wife] has insufficient income to award
     [Husband] an order of Child Support.           However, [Wife] is
     seeking spousal support.          Accordingly, the provisions of
     Pa.R.C.P. 1910.16-4(e) apply, and the amount of spousal

                                   -5-
J-S27031-16


       support owed by [Husband] to [Wife] is offset by the amount of
       child support owed by [Wife] to [Husband].
              [Wife] filed her request for spousal support on April 10,
       2014. While there was no child support complaint yet filed by
       [Husband], the minor child was in [Husband’s] custody and
       [Wife] had a support obligation. Therefore, I recommend that
       the Court apply 1910.16-4(e) commencing on April 10, 2014.
              From April 10, 2014[,] until July 31, 2014, the parties
       have a combined monthly net income of $4,733.64.            After
       applying 1910.16-4(e), [Wife] is responsible for 47% of the
       basic obligation, or $458.72 per month. The offset for this time
       period is $1,635.82-$450.72=$1,185.10.
              From August 1, 2014[,] until September 9, 2014[,] the
       parties have a combined monthly net income of $5,233.24.
       After applying 1910.16-4(e), [Wife] is responsible for 47% of the
       basic obligation, or $458.72. The offset for this time period is
       $1,343.76-$458.72=$885.04.
              From September 10, 2014, after [E.O. became]
       emancipated, until December 31, 2014, while [Wife] had
       seasonal employment, the spousal support is calculated in the
       amount of $1,178.36 ($4,089.57-$1,143.67x.4=$1,178.36).
       Commencing on January 1, 2015, spousal support is calculated
       as $1,134.34 ($3,479.93-$644.07x.4=$1,134.34).

Master’s Recommendation, filed 3/16/15, at 1-7 (citations and footnotes

omitted).

       In conclusion, the Master relevantly ordered, inter alia, the following:

       1. [Wife’s] claim for [alimony pendente lite] filed to PACSES No.
          424114580 on May 22, 2014[,] is dismissed.1
       2. [Husband’s] claim for child support filed to PACSES
          603114752 on July 11, 2014[,] shall remain open as an
          arrears-only medical support order in which [Husband] shall
          provide medical insurance for the minor child. [Wife] shall be
          responsible for 48% of any uncovered costs between April 10,
          2014[,] until July 31, 2014, and 47% for any uncovered costs
          incurred between August 1, 2014[,] and September 9, 2014,
____________________________________________


1
 At the support hearing, the parties agreed the alimony pendente lite claim
would be dismissed.



                                           -6-
J-S27031-16


         after [Husband] pays for the first $250.00 of uncovered
         expenses annually.
      3. In PACSES 442114580, I recommend that the court Order
         [Husband] to pay spousal support to [Wife]:
            a. from April 10, 2014[,] to July 31, 2014[,] in the
               amount of $1,185.10.
            b. from August 1, 2014[,] to September 9, 2014[,]
               in the amount of $885.04.
            c. from September 10, 2014[,] to December 31,
               2014[,] in the amount of $1,178.36.
            d. on January 1, 2015[,] until further order of court,
               in the amount of $1,134.34.

Id. at 8 (footnote added).

      On March 16, 2015, the trial court entered orders in accordance with

the Master’s recommendation and the orders were filed at both docket

numbers.     Specifically, the trial court indicated Husband’s monthly net

income is $3,479.93 and Wife’s monthly net income is $644.07; the trial

court directed Wife to pay no child support and indicated there were no

arrears; and the trial court directed Husband to pay $1,159.34 per month in

spousal support, effective January 1, 2015.

      Thereafter,   Husband        filed    timely   exceptions     to   the   Master’s

recommendation;     he   filed     the     exceptions   at   both   docket     numbers.

Husband’s sole issue was whether the Master erred in “[t]he amount of the

monthly net income assigned to [Wife].” In his supporting brief, Husband

conceded that, with respect to his request for continuing support of E.O.

after September 9, 2014, there was insufficient information regarding her

inability to earn a living wage.




                                           -7-
J-S27031-16


      With regard to Wife’s assigned net income for child and spousal

support purposes, Husband argued she is underemployed and working well

below her earning capacity. Husband requested Wife be assigned an earning

capacity of $31,000.00 per year based upon a vocational analysis, as well as

Wife’s age, education, training, health, work experience, and earnings

history.

      Following oral argument, by order entered on June 30, 2015, the trial

court indicated the following:

            [I]n     consideration   of  the    Exceptions     to  the
      Custody/Support Master’s Report and Recommendation filed by
      [Husband] in the above-captioned matter as to the earning
      capacity imputed to [Wife], following oral argument held before
      the undersigned, and having reviewed the case file, the
      transcripts of the hearing before the Custody/Support Master
      along with the attached exhibits, and the Master’s Report and
      Recommendation, now, therefore, in consideration of all of the
      foregoing, it is hereby ORDERED as follows:
                   1. Husband’s Exception concerning Wife’s
            earnings/earning capacity is granted in part and
            denied in part: Wife’s income shall not be based on
            her actual earnings; Wife shall be assigned an
            earning capacity, but not the earning capacity
            proposed by Husband. Wife’s earning capacity shall
            be the Pennsylvania minimum wage as of the date of
            this order, and her imputed income shall be
            calculated based on a 40 hour work week.
                   2. This matter is remanded back to the
            Domestic Relations Officer for a guideline calculation
            consistent with this order.

Trial Court Order, filed 6/30/15, at 1. The order was filed in both the child

support and the spousal support matters.




                                    -8-
J-S27031-16


      On July 29, 2015, Husband filed two separate notices of appeal from

the trial court’s orders.   Husband’s appeal related to Wife’s request for

spousal support was docketed in this Court at 1303 MDA 2015, while

Husband’s appeal related to his cross-complaint for child support was

docketed in this Court at 1304 MDA 2015. This Court sua sponte

consolidated the appeals.

      Meanwhile, in the trial court, as to both docket numbers, Husband was

directed to file a Pa.R.A.P. 1925(b) statement, and he timely complied

presenting the identical, sole issue for both matters: “That [the trial court]

erred in determining that [Wife] has only a full-time minimum wage earning

capacity.” Husband’s Pa.R.A.P. 1925(b) Statement, filed 9/30/15. The trial

court filed a responsive Pa.R.A.P. 1925(a) Opinion.

      Initially, we note Husband has appealed from the orders entered in the

spousal support matter (docketed at 1303 MDA 2015), as well as the child

custody matter (docketed at 1304 MDA 2015). However, because a divorce

decree has not yet been entered, the order entered in the spousal support

matter is not appealable.     See Leister v. Leister, 684 A.2d 192, 193

(Pa.Super. 1996) (en banc) (holding spousal support orders are interlocutory

and not appealable when entered during the pendency of divorce claims).

Accordingly, we quash Husband’s appeal filed at 1303 MDA 2015.

      However, the trial court’s order entered in the child support matter is a

final and immediately appealable order.     See Capuano v. Capuano, 823


                                     -9-
J-S27031-16


A.2d 995 (Pa.Super. 2003).        Accordingly, we may address Husband’s

appellate issues to the extent they relate to child support.

      Here, as it relates to Husband’s request for child support for E.O., the

Master found that, effective September 9, 2014, Wife had no duty to pay

child support as E.O. had reached the age of majority, had graduated from

high school, and was capable of engaging in profitable employment.

Husband did not file exceptions from the Master’s recommendation in this

regard and, in his brief before the trial court, he specifically conceded the

record was insufficient to establish Wife had a duty to provide child support

after September 9, 2014. Moreover, Husband has advanced no argument on

appeal concerning this precise issue.         Accordingly, his challenge to this

portion of the child support order is waived.         See Pa.R.C.P. 1910.12(f)

(pertaining to the filing of exceptions from a master’s recommendation);

Brody v. Brody, 758 A.2d 1274 (Pa.Super. 2000) (finding issues not

developed on appeal in support case to be waived).

      However, as it relates to the time period from the parties’ separation

on April 10, 2014, until E.O.’s graduation from high school on September 9,

2014, the Master concluded Wife had a duty to provide child support for E.O.

as she was unemancipated, still in high school, and living solely with

Husband during this time period. See 23 Pa.C.S.A. § 4321(2) (indicating

parents are liable for the support of their unemancipated children under the

age of eighteen, or unemancipated children who have not yet graduated


                                     - 10 -
J-S27031-16


from high school). However, the Master, declining to assign Wife an earning

capacity, found Wife’s monthly net income was $1,143.67 from August 1,

2014, to December 31, 2015, and $644.07 at all other times. Accordingly,

the Master found Wife’s monthly net income rendered her below the Self-

Support Reserve of $931.00, resulting in the conclusion she had insufficient

income to award Husband child support for the time period from April 10,

2014, to September 9, 2014. However, the Master concluded the amount of

child support Wife would owe, but for the Self-Support Reserve, should be

used to off-set the amount of spousal support owed by Husband to Wife. In

this regard, the Master applied the provisions of Pa.R.C.P. 1910.16-4(e), and

found Wife is responsible for 47% of the basic child support obligation, or

$458.72 per month during the relevant time period.

     As indicated supra, Husband filed exceptions challenging solely the

amount of the monthly net income assigned to Wife, and the trial court

granted the exception, in part.      Specifically, the trial court accepted

Husband’s argument that Wife should be assigned an earning capacity, as

opposed to utilizing her actual earnings; however, the trial court disagreed

with Husband’s calculation for Wife’s earning capacity.    Rather, the trial

court concluded the evidence revealed Wife’s earning capacity for the

relevant time period was Pennsylvania’s minimum wage ($7.25) at 40 hours

per week, or $1160.00 per month.




                                   - 11 -
J-S27031-16


       On appeal, Husband contends the trial court erred in computing Wife’s

earning capacity to be full-time minimum wage.         In this regard, Husband

contends the trial court failed to set forth the reasons for its determination,

did not adequately consider the factors set forth in Pa.R.C.P. 1910.16-

2(d)(4), and erred in failing to find the testimony of the vocational expert to

be credible.

       We review a court's determinations regarding support orders for an

abuse of discretion.2        Isralsky v. Isralsky, 824 A.2d 1178 (Pa.Super.

2003).

             On appeal, a trial court's child support order will not be
       disturbed unless there is insufficient evidence to sustain it or the
       court abused its discretion in fashioning the award. An abuse of
       discretion is not merely an error of judgment, but if in reaching a
       conclusion the law is overridden or misapplied, or the judgment
       exercised is manifestly unreasonable, or the result of partiality,
       prejudice, bias, or ill-will, as shown by evidence on the record,
       discretion is abused.
             Thus, a reviewing court does not weigh the evidence or
       determine credibility as these are functions of the trial court.

Doherty v. Doherty, 859 A.2d 811, 812 (Pa.Super. 2004) (quotation and

citations omitted).

       “Although a person's actual earnings usually reflect h[er] earning

capacity, where there is a divergence, the obligation is determined more by
____________________________________________


2
  As indicated, we confine our analysis to whether the trial court abused its
discretion in determining Wife’s earning capacity for child support purposes
from April 10, 2014, when the parties separated, to September 9, 2014,
when E.O., who had reached the age of majority, graduated from high
school.



                                          - 12 -
J-S27031-16


earning capacity than actual earnings.”       Woskob v. Woskob, 843 A.2d

1247, 1251 (Pa.Super. 2004) (citation omitted).

      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).

      In the case sub judice, the trial court expressly indicated in its Opinion

that, in determining Wife’s earning capacity for the relevant time period, it

considered the factors set forth in Pa.R.C.P. 1910.16-2.       See Trial Court

Opinion, filed 10/15/15, at 4.   The trial court further noted the following:

            [B]ased on [Wife’s] education and training, she was
      capable of earning at least a full-time, minimum wage salary.
      We declined to impose a higher earning capacity based on a
      consideration of the applicable factors, including [Wife’s] earning
      history and health issues relating to the vocation for which she
      has training.
                                        ***
            Based on the record and the arguments to the court, we
      disagree with [Husband’s] claim that this court erred in imposing
      only a full-time minimum wage earning capacity, which is in
      excess of her present earnings and more than was
      recommended by the Support Hearing Officer.

Id. at 5.



                                     - 13 -
J-S27031-16


      We find no abuse of discretion in this regard and specifically reject

Husband’s claims that the trial court failed to set forth the reasons for its

determination and did not adequately consider the factors set forth in

Pa.R.C.P. 1910.16-2(d)(4).     Further, as to Husband’s argument the trial

court erred in failing to find the testimony of the vocational expert to be

credible, it is not this Court’s duty to pass on the credibility of witnesses and

we will not substitute our judgment for the trial court’s judgment in this

regard.   See Doherty, supra.       Thus, and for the foregoing reasons, we

affirm the trial court’s child support order filed at 1304 MDA 2015.

      Appeal from order docketed at 1303 MDA 2015 is QUASHED; Appeal

from order docketed at 1304 MDA 2015 is AFFIRMED.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016




                                     - 14 -
J-S27031-16




              - 15 -
