J-A11034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    N.L.H.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    T.M.J.                                     :
                                               :
                      Appellant                :   No. 1355 MDA 2016

                   Appeal from the Order Entered July 18, 2016
                  In the Court of Common Pleas of Adams County
                         Civil Division at No(s): 07-DR-536


BEFORE:       SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED MAY 23, 2017

         Appellant T.M.J. (hereinafter “Mother”) appeals the Order entered in

the Court of Common Pleas of Adams County on July 18, 2016, requiring her

to pay Appellee N.L.H. (hereinafter “Father”) a monthly support payment in

the amount of $1,368.36 for the parties’ three children. Following a careful

review, we vacate and remand.

         The trial court aptly set forth the facts and procedural history herein as

follows:

               Father first filed a Complaint for Support on October 1,
         2007. The initial support order for the parties was entered on
         November 15, 2007. Mother was ordered to pay $1,368.36 per
         month for the support of the parties' three children.
               On September 25, 2015, Father filed a Petition for
         Modification of an Existing Support Order due to changes to the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     parties’ circumstances. Father alleged that Mother was making
     more money than she had been making when the Order was
     originally entered, and he stated that the parties’ daughter spent
     the majority of her time with Father. A conference was
     scheduled for November 2, 2015.
            The parties met with the Conference Officer separately,
     due to scheduling conflicts, and both were accompanied by their
     respective counsel. The Conference Officer found that Father
     owned his own home remodeling business and that his earnings
     had steadily increased since 2012. The Conference Officer found
     that Mother worked as a doctor for Summit Physician Services
     and Penn State University. Her gross income from Summit was
     $165,000 plus bonuses. The Conference Officer used Mother's
     tax return to calculate her additional income from Penn State, as
     she did not provide any other proof of this income. The
     Conference Officer found that Father could not receive support
     for the parties' daughter because the daughter only spent
     weekends with Father. Mother requested that Father be held to a
     higher income of $80,000 but this was denied because Father's
     income documentation spanning several prior years did not
     support this. In addition, Father would require additional
     education to re-enter the computer programing field. The
     Conference Officer also found that the parties' daughter would
     be emancipated on June 1, 2016, upon her graduation from high
     school.
            An Allocated Order of Court was entered on December 15,
     2015. The Court determined Mother's monthly net income to be
     $13,311.26 and Father's monthly net income to be $3,932.79.
     Mother was ordered to pay $1,176.00 per month for the parties'
     two sons and $2,597.03 in arrears. On January 5, 2016, Mother
     filed a Demand for Hearing De Novo and raised the following
     issues:
          1. Mother should receive an offset for having majority
          custody of all three (3) children;
          2. Mother should receive an offset due to the
          extraordinary medical expenses of the children;
          3. Mother should receive a larger offset for her school
          loans;
          4. The Hearing Officer may have erred in calculating
          Father's income.
          This matter was scheduled for a hearing on February 10,
     2016. On January 19, 2016, Mother filed a Petition for Special
     Hearing. In her Petition, Mother averred that, due to the
     complexity of the matter, the hearing should be specially set for

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     a two-hour time period and the hearing should not be set for at
     least forty-five days in order to allow Mother ample time to
     complete discovery. The De Novo Hearing was rescheduled for
     March 14, 2016 by Order of Court dated January 26, 2016. On
     February 4, 2016, Mother filed a Petition to Pursue Discovery in
     a Support Case Pursuant to Pa.R.C.P. 1910.9. On February 5,
     2016, this Court granted Mother's request and ordered that
     Mother may use the discovery rules available in civil actions as
     set forth in the Pennsylvania Rules of Civil Procedure. On March
     9, 2016, Mother filed a Motion for Continuance in order to allow
     for the exchange of discovery which was granted by Order of
     Court on March 10, 2016. The De Novo Hearing was rescheduled
     for May 25, 2016.
           At the scheduled Complex De Novo Hearing on May 25,
     2016, the Court had a discussion with counsel, after which the
     Court decided to continue the matter until June 28, 2016. The
     Court found that there were several outstanding discovery
     requests and it ordered the parties to turn over documents that
     had previously been withheld by June 17, 2016. Additionally, the
     Court ordered that counsel for the parties may submit legal
     memoranda regarding the issues raised in the de novo appeal.
           The Complex De Novo Hearing was ultimately held on June
     28, 2016, after which the Court took this matter under
     advisement. An Order of Court was entered on July 18, 2016.
     The Court denied the Mother's request for an offset for having
     majority custody of the parties' daughter and equally shared
     custody of the parties' two sons. The Court denied Mother's
     request for a modification of her income based on her having left
     one of her jobs, as her separation from her employment with
     Penn State was voluntary. The Court found that Mother's student
     loans are not an "unusual fixed obligation" pursuant to Pa.R.C.P.
     1910.16-5 and denied Mother's request for a downward
     deviation for the loans, concluding that $830 per month in loans
     was a manageable portion of her income. The Court found that
     that Father had gross earnings of $50,117 in 2015 and ordered
     that this figure would be used to calculate his income for support
     purposes.
           In its July 18, 2016 Order of Court, this Court directed the
     Domestic Relations Office to issue a two-tiered order. Tier 1, in
     the amount of $863.00 per month, was effective from
     September 25, 2016 until June 1, 2016, when the parties' oldest
     child became emancipated. Tier 2 became effective as of June 2,
     2016, and was in the amount of $1,355.00 per month. On July
     20, 2016, this Court entered an Order stating its findings that

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      Father's monthly net income is $3,987.87 and Mother's monthly
      net income is $11,472.03 and ordering Mother to pay support for
      the parties' two sons to Father in the amount of $1,490.001 per
      month. Arrears were set at $1,184.50.
            On August 18, 2016, Mother timely filed her Notice of
      Appeal of the July 18, 2016 Order of Court. Mother timely filed
      her Statement of Matters Complained of on Appeal Pursuant to
      Pa.R.A.P. 1925(b) on September 7, 2016.

Trial Court Opinion, filed October 12, 2016 at 1-4.

      In her brief, Mother presents the following Statement of the

Questions Involved:

      1.    Did the trial court err as a matter of law and/or abuse its
            discretion in determining Mother owed support to father for
            the period of time when the parties’ daughter lived solely
            with her and the parties equally shared custody of the
            other two (2) minor children, pursuant to Pa.R.C.P. No.
            1910.16-4(d)?
      2.    Did the trial court err as a matter of law and/or abuse its
            discretion in relying upon Colonna v. Colonna, 581 Pa. 1,
            855 A.2d 648 (Pa 2004) when the court was not provided
            with any evidence of [Father’s] need for economic support
            for the two (2) children who spent only 50% of the time
            with [Father]?
      3.    Did the trial court err as a matter of law and/or abuse its
            discretion in calculating Mother’s income to include the
            income from a second job when Mother’s primary job is
            full-time and her income is more than sufficient to provide
            support for the children?
      4.    Did the trial court err as a matter of law and/or abuse its
            discretion in requiring Mother to work a second job when
            she is already employed full-time?

Brief for Appellant at 1 (unnecessary capitalization omitted). As

Mother’s first two issues and the latter two also overlap, we will

conduct a two part analysis for ease of discussion.




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      This Court’s standard of review in a child support case 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 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.

Silver v. Pinskey, 981 A.2d 284, 291 (Pa.Super. 2009) (en banc) (quoting

Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)). Additionally, “[t]he

fact-finder is entitled to weigh the evidence presented and assess its

credibility[.]” Samii v. Samii, 847 A.2d 691, 697 (Pa.Super. 2004) (quoting

Green v. Green, 783 A.2d 788, 790 (Pa.Super. 2001), appeal denied, 569

Pa. 707, 805 A.2d 524 (2002)).

      In most cases, child support is awarded pursuant to a statewide

guideline as follows:

      § 4322. Support guideline
      (a) Statewide guideline.—Child and spousal support shall be
      awarded pursuant to a Statewide guideline as established by
      general rule by the Supreme Court, so that persons similarly
      situated shall be treated similarly. The guideline shall be based
      upon the reasonable needs of the child or spouse seeking
      support and the ability of the obligor to provide support. In
      determining the reasonable needs of the child or spouse seeking
      support and the ability of the obligor to provide support, the
      guideline shall place primary emphasis on the net incomes and
      earning capacities of the parties, with allowable deviations for

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      unusual needs, extraordinary expenses and other factors, such
      as the parties' assets, as warrant special attention. The guideline
      so developed shall be reviewed at least once every four years.

23 Pa.C.S.A. § 4322(a). Well-established law makes clear both parents are

responsible for the support of their children. Samii, supra at 696 (citation

omitted). A parent's ability to provide child support is based upon the

parent's earning capacity rather than his or her actual earnings. Id.       In

addition, Pa.R.C.P. 1910.3(b) states that the trier of fact is not to consider

who filed the support action or modification when making its determination

which party is the obligee or the obligor therein.

      Herein, Mother initially contends that in light of Pa.R.C.P. 1910.16-

4(d), the trial court erred in its determination that Mother owed support to

Father because at the time Father filed his petition to modify the parties’

existing child support order, their oldest child lived solely with Mother and

the parties shared physical custody of their other two children.       Mother

further avers the trial court erred in relying upon our Supreme Court’s

decision in Colonna v. Colonna 581 Pa. 1, 855 A.2d 648 (2004) when

fashioning its support order.

      Pa.R.C.P. 1910.3(b)(1) provides that “[i]n general, the party who has

primary custody of the children shall be the obligee of a child support order.”

Pa.R.C.P. No. 1910.3(b)(1). However, Pa.R.C.P. No. 1910.16-4(d)(2) states

that where, as herein, the custody schedule varies, support obligations

should be calculated as follows:


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      (2) Varied Partial or Shared Custodial Schedules. When the
      parties have more than one child and each child spends either
      (a) different amounts of partial or shared custodial time with the
      party with the higher income or (b) different amounts of partial
      custodial time with the party with the lower income, the trier of
      fact shall add the percentage of time each child spends with that
      party and divide by the number of children to determine the
      party’s percentage of custodial time. If the average percentage
      of custodial time the children spend with the party is 40% or
      more, the provisions of subdivision (c) apply.

Pa.R.C.P. No. 1910.16-4(d)(2).

      In applying the aforesaid provision, the trial court correctly calculated

Mother’s physical custody time with the children for the relevant time period

as follows:

      [E]ach of the parties’ two sons spends 50% of his time with each
      parent. The parties’ daughter spends 100% of her time with
      Mother. Tr. At 12. Thus, this amounts to a 66.7% average of
      the time spend [sic] with the obligor2, a clear majority of the
      total time the children spend with the parties.
      ___
      2
        50% + 50%+ 100%= 200%; 200%/3=66.7%.

Trial Court Opinion, filed 10/12/16, at 166-67. Notwithstanding, the trial

court rejected Mother’s argument that as the parent with the majority of

custodial time she did not owe a duty of support to Father. In doing so, the

court reasoned that Colonna, supra, identified an exception to Pa.R.C.P.

No. 1910.16-4(d) which applies to the within matter. We disagree.

      In Colonna, our Supreme Court, in a split decision, concluded “that a

parent with primary custody may be ordered to pay child support to a




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parent with partial custody.”        Colonna, supra, 581 Pa. at 9, 855 A.2d at

648, 652 (emphasis added).1            The Court stated its belief that where the

incomes of parents differ significantly, a trial court abuses its discretion

when it fails to determine whether a deviation from the support guidelines is

appropriate. Under such circumstances, the Court directed trial courts to

consider:

       (1) unusual needs and unusual fixed obligation;
       (2) other support obligations of the parties;
       (3) other income in the household;
       (4) ages of the children;
       (5) assets of the parties;
       (6) medical expenses not covered by insurance;
       (7) standard of living of the parties and their children;
       ***
       (9) other relevant and appropriate factors, including the best
       interests of the child or children.

Colonna, supra 581 Pa. at 8, 855 A.2d at 652. The Court went on to state

that

             [i]n a case such as the instant matter, the trial court
       should inquire whether the non-custodial parent has sufficient
       assets to provide the children with appropriate housing and
       amenities during his or her period of partial custody. We
       specifically note that the term “appropriate” does not mean
____________________________________________


1
  Justice Newman authored the Majority which then Justice Saylor joined.
Justice Nigro concurred with the Majority that the obligor parent may also be
the custodial parent in a child support case but cautioned the trial court
against basing its decision to deviate on a presumption a child will prefer a
relationship with the parent who can provide the child with greater material
possessions. Chief Justice Cappy authored a dissent which then Justice
Castille joined wherein he indicated his belief that a custodial parent should
not be obligated to pay child support to the noncustodial parent. Justice
Lamb did not participate in the decision.



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      equal to the environment the children enjoy while in the
      custodial parent's care, nor does it mean “merely adequate.” The
      determination of appropriateness is left to the discretion of the
      trial  court,    upon     consideration     of    all   relevant
      circumstances.


Id. (emphasis added).

      In the matter sub judice, contrary to considering the aforementioned

factors, the trial court commented on the dearth of evidence in this regard

as follows:

      In the instant case, there was little testimony as to Father’s
      ability to provide the children with appropriate housing and
      amenities. However, Father did state that he is able to meet his
      expenses “not every month, most months”, Tr. At 12, and that
      he pays for his son J.E.H.’s prescriptions sometimes and for his
      son A.M.H.’s contacts.      Additionally, he provides food and
      clothing and “whatever they need”. Tr. At 12. While this
      testimony was brief, the [c]ourt finds it persuasive that Father
      was unable to meet his monthly expenses every month when he
      was receiving child support in addition to his income.

Trial Court Opinion, filed 10/12/16, at 6-7. In reliance upon Colonna, the

trial court went on to baldly conclude that because Mother’s income is

almost three times greater than Father’s “the benefit of a support order to

supplement Father’s income is in the best interest of the children.” Id. at 7.

      In light of the foregoing, we find the trial court abused its discretion in

deviating from the support guidelines without first making specific findings

as to whether Father as the noncustodial parent had sufficient assets to

provide the children with appropriate housing and amenities pursuant to the

factors set forth in Colonna. Accordingly, we vacate the trial court's order



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and remand for an evidentiary hearing to enable the trial court to inquire as

to all relevant factors set forth in Pa.R.C.P. 1910.16-5(b) relating to

deviation from the support guidelines as our Supreme Court directed in

Colonna.      Upon consideration thereof, the trial court shall make a

determination as to whether a deviation from the support guidelines was

proper such that Mother owes child support to Father.

      In her final two issues, Mother contends the trial court erred when it

included income from her second job in its calculation of her income.

Appellant explains that as a full-time physician she is required to work sixty

(60) hours per week, and she chose to relinquish her additional, part-time

job as the director of the clinic at the Penn State Mont Alto Campus in 2015

in order to spend more time with her children. Mother stresses that her job

as a physician in itself “is the functional equivalent of one full time and one

part time job,” and trial court’s order “has the effect of requiring Mother to

work above and beyond a sixty (60) hour work week to earn minimally more

money that won’t necessarily benefit the children more than spending time

with their mother.” Brief for Appellant at 11-13.

      At the outset, we note that, generally, there will be no effect on one’s

support obligation where he or she voluntarily assumes a lower paying job.

Pa.R.C.P. No. 1910.16-2(d)(1). Although a person's actual earnings usually

reflect her earning capacity, where there is a divergence, the obligation is

determined more by earning capacity than actual earnings. Woskob v.


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Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004). Earning capacity is the

amount that one realistically could earn under the circumstances, not the

amount which he or she theoretically could earn. Gephart v. Gephart, 764

A.2d 613, 615 (Pa.Super. 2000). “Age, education, training, health, work

experience, earnings history and child care responsibilities are factors which

shall be considered in determining earning capacity.” Pa.R.C.P.1910.16–

2(d)(4). Importantly, the trial court must conduct a full inquiry before

making a factual determination about a party's earning capacity. See

Haselrig v. Haselrig, 840 A.2d 338 (Pa.Super. 2003).          If a party has

willfully failed to maintain appropriate employment, the trier of fact “may

impute to that party an income equal to the party's earning capacity.”

Pa.R.C.P. No. 1910.16-2(d)(4).

      While the trial court herein acknowledged Mother had testified that she

left her “second job” with Penn State due to her desire to have more time at

home with her children, it found that she had not presented adequate

evidence of an attempt to mitigate the loss in income or that her voluntary

termination if her part-time employment was not done in an effort to reduce

her support obligation. Without support from the record or elaboration, the

court expressed its belief that “the timing of Mother’s voluntary termination

of her second income source [was] suspicious in light of Husband’s Petition

for Modification of an Existing Support Order.”    Trial Court Opinion, filed

10/12/06, at 8.


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       Mother explained that as a full-time physician at Summit Physician

Services, she is required to work sixty (60) hours per week. N.T. 9/9/16, at

23-24.    In 2015, Mother received a base salary of $192,743 and an

additional $27,743 in incentive bonus payments for working beyond her

sixty hour week. Mother already had accumulated incentive bonus earnings

at the time of the hearing in an amount of $1,798.06 and intended to

accumulate more in the latter part of the year. Id. at 27. She earned just

$9,070 in 2015 for her work at Penn State. Id. at 25.

       In deciding whether the trial court erred in its determination that

Mother should be imputed with income she had been receiving from her

second, part-time job, we are guided by our prior decision in Haselrig,

supra. Therein, this Court was presented with the unique issue of whether

an obligor should be imputed with income from a second full-time job he

recently left.   Significantly, we observed that “[t]heoretically, any person

who is obligated to support a spouse and children could work sixteen hour

days, with eight hours left in which to sleep. But the question is whether it is

realistic and reasonable to do so.”    Id. at 340.    We ultimately concluded

that

       the law in Pennsylvania clearly requires the trial court [to]
       conduct a full inquiry before making a factual determination of
       an obligor's true earning capacity. We bear in mind that the late
       Honorable Vincent A. Cirillo, former President Judge of the
       Superior Court, astutely pointed out in his dissent in Akers[v.
       Akers 540 A.2d 269 (Pa.Super. 1988)], “A person's ability to
       pay support should be calculated only from his or her earning
       capacity at one full-time job.... The court could not order

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      [Husband] to work a second job initially and it should not be able
      to force him to continue that employment once he had decided
      that the second job no longer profits him, financially or
      otherwise.” Akers, supra at 272.

Id. at 341.       Finding the record to be devoid of any inquiry into the

necessary, relevant factors to establish the obligor’s realistic earning

capacity, this Court vacated the trial court’s order and remanded for a full

evidentiary hearing to enable the trial court to determine his earning

capacity. Id.

      At the time of the hearing, Mother had been employed with Summit

Physician Services for eight years and routinely received additional salary for

hours spent above and beyond the sixty-hour full-time requirement.         This

work history is distinguishable from the type of situation to which the trial

court alluded in its opinion wherein one relinquishes lucrative employment in

an attempt to avoid a support obligation.

      Indeed, without making a full inquiry at the hearing as to Mother’s full

earning capacity or considering the demanding hourly requirements of

Mother’s full-time job, the trial court baldly asserted that the timing of her

termination of her second income source was “suspicious.”        In addition, it

dismissed as incredible her desire to spend more time with her children as

the reason behind her decision to relinquish her part-time employment,

which comprised a minimal part of her annual income, and instead found she

did so in an effort to reduce her support obligation. Trial Court Opinion, filed

10/12/16, at 8.

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      As such, we find the trial court’s failure to make a finding as to

Mother’s true earning capacity and determination that Mother needed to

present evidence of an attempt to mitigate the loss of her part-time income

was an abuse of discretion. We direct the trial court to make such findings

upon remand and consider the same when fashioning any support obligation

of the parties.

      Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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