J-S22033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.M.B.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

B.S.W.,

                            Appellant               No. 1248 MDA 2016


                Appeal from the Order Entered June 29, 2016
              In the Court of Common Pleas of Dauphin County
     Domestic Relations at No(s): 1280 DR 2009, PACSES No. 817110975


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.:

                                                      FILED JUNE 08, 2017

       I respectfully concur in part and dissent in part.   I concur with the

learned Majority’s modification of the child support order to set Mother’s

yearly gross earning capacity for the period of August 26, 2015, through

January 3, 2016, at $25,000.

       I disagree, however, with the Majority’s finding that the trial court

abused its discretion when it awarded Mother a credit for child care expenses

equal to the amount granted to Father. The trial court issued this award on

the basis that it assigned Mother a full-time earning capacity and “it is a

general assumption that a parent who is employed full-time will incur child

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S22033-17



care costs.” Trial Court Opinion, 9/29/16, at 10. The trial court assigned

full-time earning capacity to Mother.        Accordingly, her support obligation

should be dictated by that earning capacity.        If Mother should choose to

continue to work only part-time, her support obligation calculated on her

earning capacity will not be changed. Where a party willfully fails to obtain

appropriate employment, his or her income will be considered to be equal to

his or her earning capacity.          Pa.R.C.P. 1910.16–2(d)(4); Kersey v.

Jefferson, 791 A.2d 419, 423 (Pa. Super. 2002). Thus, Mother’s support

obligation will not be altered due to her failure to seek and acquire full-time

work.

        Moreover, the parties share custody of the Children fifty/fifty and both

were assigned full-time earning capacities.      Father was awarded credit for

child care in light of the court holding him to a full-time earning capacity and

his custodial status.    Accordingly, I believe the trial court was correct in

giving the parties equal credit for child care costs because they share

fifty/fifty custody of the Children and both were assigned full-time earning

capacities as of January 4, 2016. Therefore, I would affirm that part of the

trial court’s holding.

        Accordingly, I respectfully concur in part and dissent in part.




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