J-S25018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW F. KOEPFER                             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

MARIA KOEPFER

                            Appellee                  No. 1761 MDA 2013


              Appeal from the Order Entered September 27, 2013
               In the Court of Common Pleas of Dauphin County
                     Domestic Relations at No: 1466 CR 12


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 07, 2014



September 27, 2013 order directing him to pay $3,767.02 per month for

child support and alimony pendente lite1 and $106.00 per month for arrears.

We affirm.

       Husband and Appellee,

and separated in 2012. They have two minor daughters. Wife commenced

this litigation with a complaint for support filed on August 29, 2013.    For

____________________________________________


1
    Of that amount, $2,072 is allocated to child support and $1,695 as
alimony pendente lite. As no divorce decree has been entered, the trial
                                        y insofar as it pertains to child
support. Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super 1996).

child support, we have jurisdiction to review them.
J-S25018-14


                                                                     n while

Husband worked in sales and traveled frequently.       Husband worked for




offered conflicting testimony on whether Husband left GE voluntarily or was

fired. Husband claims he left GE in order to reduce his travel requirements



                                                                           ave

immediately because he planned to work for a competitor. Wife claims GE

terminated Husband for cause because he was not devoting enough time to

his job and failing to meet his commission goals.

     In his last three years at GE, Husband earned $150,000, $198,000,

and $152,000, respectively.    His base salary at Agra was $87,000, and

Husband claimed he was not eligible to earn any commission until 2015,



separation, Wife obtained work as a dental assistant earning $15.00 per

hour for 29 hours per week.

     After a September 6, 2013 hearing, the trial court imputed to Husband

an earning capacity of $166,000 per year, based on the average of his final

three years at GE. The trial court also found that Husband earned $4,000

per year in eBay sales.    Based on an annual gross income of $170,000

attributed to Husband, the trial court entered the aforementioned order.


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      Husband filed this timely appeal on October 2, 2013. He raises five

issues for our review:

      I.


              previous three (3) years when he worked for a different
              employer?

      II.     Wheth
              income by including a hobby as a source of a second
              income where the facts presented at the de novo hearing
              establish that [Husband] has more expenses from his
              hobby than he does income?

      III.    Whether the trial court erred when it improperly calculated
                                                                -existent

              that [Husband] provided testimony which established that
              he does not and will not receive any bonuses in 2013 and
              [Husband] provided testimony that he does not anticipate
              any potential bonuses until at least 2015?

      IV.     Whether the trial court erred when it failed to address the
              tax return issue from 2012 where [Wife] and [Husband]
              resided together for a majority of the year and there would
              have been a financial benefit if the parties filed jointly as

              resulting in a larger income for [Husband] and his children
              for support purposes?

      V.      Whether the trial court erred when it improperly imputed

              portion of the 2013 year full time at a rate of fifteen ($15)
              dollars per hour.    Instead, the trial court improperly

              twenty-nine (29) house [sic] per week at fifteen ($15)
              dollars per hour?

                      -5.



strictures:

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              When evaluating a support order, this Court may only

       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



K.J.P. v. R.A.P., 68 A.3d 974, 978 (Pa. Super. 2013).2         Furthermore, this

Court must accept findings of the trial court that are supported by

competent evidence of record, as our role does not include making

                                               Mackay v. Mackay, 984 A.2d 529,

533 (Pa. Super. 2009).

weight of the evidence, this Court must defer to the trial judge who presided

                                                                    Id.



assigning him an earning capacity based on his final three years with GE.

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

and income calculations. The trial court relied on Rule 1910.16-2(d), which

provides in relevant part as follows:

____________________________________________


2
    Likewise, we review an award of alimony pendente lite for abuse of
discretion. Strauss v. Strauss, 27 A.3d 233, 236 (Pa. Super. 2011),
appeal granted, 41 A.3d 1286 (Pa. 2012), appeal discontinued, (March 27,
2013).



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           (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
     generally will be no effect on the support obligation.

           (2) Involuntary Reduction of, and Fluctuations 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.



           (4) Earning Capacity. 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

     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).

     In Kersey v. Jefferson, 791 A.2d 419 (Pa. Super. 2002), the

husband quit a $70,000 per year job and took a $32,000 per year job in

order to attend medical school. Id. at 422. Given the reduction in income,

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the husband sought a modification of his child support obligation. Id. The

                                           rt obligation to account for a



                                                   Id. This Court affirmed,

concluding the husband did not demonstrate any effort to mitigate the loss

of income when he changed jobs. Id. at 423. Further, we reasoned that a

support obligation is similar to a mortgage, car payment, or other fixed



employment status.     Id. at 424.   The husband



                                                        Id.

     In Grigoruk v. Grigoruk, 912 A.2d 311 (Pa. Super. 2006), however,

this Court noted that a trial court can reduce the support obligation of a

parent fired for cause where the parent makes an effort to mitigate the lost

income. Id. at 313. The mother in Grigoruk conducted a six-month job

search and eventually took the only job she was offered, resulting in an

reduction in salary.   Id. at 312.    During the six-month job search she

applied for numerous jobs whose salary would have been commensurate

with her former earnings. Id. Upon accepting new employment, the mother

ended her job search so as not to jeopardize her new employment. Id. at

315. Under these circumstances, we concluded the trial court did not abuse




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income. Id. at 314; see also Ewing v. Ewing, 843 A.2d 1282 (Pa. Super.



efforts to mitigate lost income after he was fired).

      Instantly, the parties offered conflicting testimony on the reason for

                                       and claimed he chose to take the Agra




credible, and determined that Husband was fired for cause. We are bound



record. Mackay, 984 A.2d at 533. The evidence on this point is limited to

the testimony the parties offered at the hearing. As such, we find little to

confirm or refute eit

Husband only has custody of the daughters every other weekend, and the



to spend time with the daughters since his departure from GE. We therefore



determination.



under Rule 1910.16-2(d)(1), as that subsection applies to parties who

voluntarily assume a lower paying job or are fired for cause.       Husband

argues, without citation to authority, that the trial court should assess his

earning capacity based on his new job because he took that job to spend


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more time with his children. Since the trial court d

explanation for changing jobs, and since nothing in the record undermines



         In addition, Husband offered no evidence of any effort to mitigate lost

income. Husband asserts that his previous job paid more because he was

based in Washington, D.C.       He also asserts that high-paying jobs are less

plentiful in the Harrisburg area.       Nonetheless, Husband failed to make a

record of the extent of his job search, including how long he searched for his

current job, how many applications he sent out, etc.       In   this regard, this

case is easily distinguishable from Grigoruk, in which the mother took the

only job offer she received after an extensive six-

first assertion of error lacks merit.



imputing $4,000 per year in earning capacity to Husband based on his eBay

sales.     Husband argues the law forbids this result, citing Rule 1910.16-

2(d)(4), which pro

capacity that is greater than the amount the party would earn from one full-

                                     -2(d)(4).



that he reported $4,000 in hobby income from eBay sales on his 2012 tax




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sales of over $14,000 through the first five months of 2013.3                 Husband

argues that any income from his eBay dealings is more than offset by the

cost of items he has bought and been unable to sell.

       The trial court reasoned that the eBay income was not imputed, but

based on evidence that Husband earned $4,000 from eBay sales in 2012 and

perhaps substantially more in 2013.             Thus, the court reasoned it did not

impute a second income to him in violation of 1910.16-2(d)(4). We agree.

Rule 1910.16-

                                                       -2(a)(2). While Husband argues

his eBay dealings are merely a hobby, he does not dispute that he devotes

substantial time to acquiring items and reselling them at a profit, both on

eBay and at several flea market booths he rents. Husband has testified that

he intends to cease his eBay dealings, because it has become too much




       For his third argument, Husband asserts the trial court erred in

including commission in its computation of income, inasmuch the record

contains uncontradicted evidence that he will not receive a commission until

at   least   2015.      This   argument        lacks    merit   because   Husband   has
____________________________________________


3
    Husband apparently shut down the account after Wife obtained this
information.



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capacity reflective of the average of his actual income between 2010 and

2012; it did not in

Trial Court Opinion, 12/12/13, at 6-7.

       Husband next argues the trial court erred in declining to direct the

parties to file a joint 2012 tax return.           Wife filed her 2012 tax return

separately, and Husband claims filing a separate 2012 tax return resulted in

$12,000 in tax liability as opposed to the $3,000 in tax liability he would

incur with a joint tax return.4

       The trial court declined to direct the parties to file a joint return,

finding no legal authority for such action. Further, the trial court reasoned

that forcing Wife to file a joint return would expose her to joint and several

liability for all taxes, interest and penalties for the year of the filing. Finally,

the trial court reasoned that, to the extent Wife dissipated assets by filing a

separate tax return, that issue should be addressed in an equitable

distribution proceeding rather than a support action.

       Husband cites no law authorizing the trial court to force Wife to file a

joint tax return, and our own research has uncovered none.                But see
____________________________________________


4

regarding the status of the tax liability for his 2012 return and he hopes to
file an amended return so as to reduce that liability. N.T. Hearing, 9/6/13,
at 16-17.



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generally, Melvin B. Frumkes and Robert S. Steinberg, Can and Should a

State Court Order an Unwilling Spouse to File a Joint Federal Income Tax

Return?, 25 J. Am. Academy of Matrimonial Law 115 (2012). Furthermore,

we believe the trial court offered persuasive reasoning in support of its



error lacks merit.




that the trial court should have assigned Wife income based on a full-time

schedule, at least for the summer months, rather than 29 hours per week.



hours per week during the school year because she has custody of the



evenings for their various extracurricular activities.     Wife admitted she

worked full-time during the summer of 2013.

      Rule 1910.16-

                                        -

                             -

part time during approximately nine months of the year while her daughters

are in school, we cannot conclude that the trial court abused its discretion in




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     Sin



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2014




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