J-A16036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T. M.                                               IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

L. M.

                            Appellant                    No. 2916 EDA 2014


                    Appeal from the Order September 16, 2014
                 In the Court of Common Pleas of Chester County
          Civil Division at No(s): 01547N2012 PACSES No. 768113527


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 14, 2015

        L.M. (Father) appeals pro se from the trial court’s order modifying an

interim support order and directing him to pay: (1) child support retroactive

to September 19, 2012 through December 31, 2012, in the sum of

$2,486.56; (2) child support from and after January 1, 2013, in the sum of

$1,907.55/month;         (3)   spousal     support/alimony   pendent   lite   (APL)

retroactive to September 19, 2012, in the sum of $2,961/month; (4)

unreimbursed medical expenses to T.M. (Mother) in the sum of $2,448.35;

and (5) support arrearages. After careful review, we affirm.

        The parties were married in 2004; two children were born of the

marriage (born 7/06 and born 9/09) (collectively “Children”).          Father filed
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*
    Retired Senior Judge assigned to the Superior Court.
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for divorce in February 2011 and the parties subsequently separated. The

divorce action was still pending at the time of this appeal.1         On June 13,

2011, Father       and   Mother     executed a marital settlement agreement

indicating that they shared legal custody of Children and that Father would

pay   $2,039/month        in   child   support   and   $2,961/month   in   spousal

support/APL.       The agreement does not contain a provision regarding

modification of support.

       Mother filed a complaint for support in September 2012 and an interim

order was issued on October 19, 2012, wherein the court ordered Father to

pay arrears of $2,054 immediately, as well as $2,300/month in APL and

$1,795 in child support per month. This interim order was calculated based

upon Father’s 2011 income tax return, wherein the court attributed to Father

a total gross income per pay period of $8,259.31. Mother was assigned an

income of zero given that she is a stay-at-home mom.

       On September 19, 2013, Father filed a motion to modify support,

pursuant to Pa.R.C.P. 1910.19, based on a substantial change in his

earnings.     At the time, Father was $40,000 in arrears.        The court held
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1
  While Husband purports to appeal from the trial court’s order as it relates
to both child and spousal support, we note that spousal support orders are
not reviewable until all economic issues in a divorce are final. Hrinkevich
v. Hrinkevich, 676 A.2d 237 (Pa. Super. 1996). Thus, we will confine our
review to Father’s child support arguments. See Order of Court, 12/1/14
(“only issues regarding the child support portion of the order will be referred
to the panel assigned to decide the merits of this appeal.”).




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hearings on Father’s modification motion over the course of three days in

January and February 2014.       At the hearings, Father submitted evidence

that his income was only $3,547/month (40% of what the court initially used

to calculate the interim support order). In his motion, Father also requested

that the court attribute an earning capacity to Mother pursuant to Pa.R.C.P.

1910.16-2(d)(4).   On September 16, 2014, the court entered the instant

modified support order; Father filed a motion to reconsider that order which

was denied. This appeal follows, in which Father raises a single issue for our

consideration:   Whether the lower court committed an error of law in

calculating support and denying       [H]usband a modification after      the

substantial evidence supported a material reduction of income and that

[W]ife failed to report income and obtain gainful employment?

      The amount of a child support order is largely within the discretion of

the trial court, whose judgment should not be disturbed on appeal absent a

clear abuse of discretion. Isralsky v. Isralsky, 824 A.2d 1178, 1187 (Pa.

Super. 2003) (citation omitted).   An abuse of discretion is not merely an

error of judgment, but rather a misapplication of the law or an unreasonable

exercise of judgment. Id. A finding that the trial court abused its discretion

must rest upon a showing by clear and convincing evidence, and the trial

court will be upheld on any valid ground. Id.

      Father claims that the trial court erred in not modifying its support

order where the court did not consider Mother’s failure to seek employment

and her other sources of income, including a wealthy boyfriend that pays for

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many of Mother’s and Children’s expenses. Moreover, Father argues that he

presented evidence of a substantially decreased income on his part that

justifies a greater downward modification of the support order. Specifically,

Father claims that he has a 2% interest in Online Training Technologies

(OTT), and due to OTT’s substantial decline in revenue, his income has

declined considerably.

      "A provision of an agreement regarding child support, visitation or

custody shall be subject to modification by the court upon a showing of

changed circumstances.” 23 Pa.C.S. § 3105(b).        When a party petitions to

modify support, due to a substantial change in circumstances, a court may

modify the amount, as follows:

      (c) Pursuant to a petition for modification, the trier of fact may
      modify or terminate the existing support order in any
      appropriate manner based upon the evidence presented without
      regard to which party filed the petition for modification. If the
      trier of fact finds that there has been a material and substantial
      change in circumstances, the order may be increased or
      decreased depending upon the respective incomes of the parties,
      consistent with the support guidelines and existing law, and each
      party's custodial time with the child at the time the modification
      petition is heard.

Pa.R.C.P. 1910.19(c) (emphasis added).       Father asserts that a downward

deviation of his support obligation is appropriate and necessary based on the

following provision:

      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,

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      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.

Pa.R.C.P. 1910.16-2(d)(2) (emphasis added).

      Father, the general manager of OTT since 2006, was a 50% owner of

the business until he separated from Mother. At that time he sold 48% of

his business interest to his mother.   OTT provides on-line training to the

financial services industry, such as loan companies, pawnbrokers, money

stores, check marts, and similar institutions.      OTT customizes training

programs to its clients that permit them to develop job skills and compliance

techniques in dealing with various subjects such as workplace harassment,

forgery, fraud, and warranty sales methodologies.      Although he does not

receive a fixed salary, Father has operating control of the company, which

includes control of the business’s finances. As a result of his position, when

OTT has sufficient cash flow, Father testified that he takes money from the

business to compensate him for his work.

      Instantly, the court did not credit Father’s testimony regarding his

“legitimate business expenses,” finding 40% of those claimed expenses were

actually personal expenses.      See Brotzman-Smith v. Smith, 650 A.2d

471, 474 (Pa. Super. 1994) (assessment of credibility of witnesses within

sole province of trial court).   The court also made a factual finding that

Cutting Edge Kitchen and Bath, an LLC that Father owns with his paramour,

pays the monthly lease payment of $1,450 on his 2014 Mercedes Benz. The



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trial court found the monthly Mercedes Benz payments were perquisites that

constituted income for purposes of support.             Father resides in a 14-room

house in Phoenixville.        The home is set on a two-acre lot and has a

swimming pool. The property is mortgaged and in default.

       The court believed Father’s contention that OTT’s revenue for the year

2013 had substantially decreased. In fact, the court concluded that because

of this decrease, Father’s income available for support purposes declined and

attributed to him a gross income of $81,0092 compared to his 2012 gross

income of $152,288. See Trial Court Opinion, 9/16/14, at 19; see also 23

Pa.C.S. § 4302 (income is defined under Domestic Relations Code as

“wages, salaries, bonuses, fees, compensation in kind, commissions and

similar items; income derived from business              . . . distributive share of

partnership gross income . . . and any form of payment due to and

collectible by an individual regardless of source).

       The court also concluded that there was “no legitimate reason why

[Mother] could not be gainfully employed as an esthetician, or other

employment in which she is experienced[,]” id. at 22, and, appropriately,

assigned    Mother     an    earning    capacity   of   $30,000.    See   Pa.R.C.P.

1910.16(d)(4) (“if the trier of fact determines that a party to a support


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2
 The court arrived at this figure by totaling: $46,686 in partnership income,
$23,316 in perks from OTT, and the value of car payments in the amount of
$11,006.92.



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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.” 3).

       Overall, the trial court’s order is reasonable, taking into account both

Father’s decreased gross income from OTT, as well as assigning Mother an

earning capacity of $30,000 despite the fact that she is a stay-at-home

mom. The court applied the support guidelines correctly and the order does

not place an excessive burden on Father. The fact that Mother’s boyfriend

may subsidize Mother’s child care expenses does not offset Father’s

statutory obligation to pay his fair share under Pa.R.C.P. 1910.16-6(d)

(allocation of reasonable additional child care expenses).             In fact, Father’s

current child support obligation is $131.45/month less than what Father

agreed    to     pay   in   the   parties’     2011   marital   settlement   agreement.

Accordingly, we find that the court did not abuse its discretion in fashioning

the current child support order. Isralsky, supra.

       Order affirmed.




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3
  It is well established that a party’s earning capacity is determined by
considering her age, education, training, health, work experience, earnings
history, and child care responsibilities. See Pa.R.C.P. 1910.16-2(d)(4).
Earning capacity is the amount that a person realistically could earn under
the circumstances, considering her age, health, mental and physical
condition, training, earnings history, and child care responsibilities. Id.; see
Woskob v. Woskob, 843 A.2d 1247 (Pa. Super. 2004).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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