J-A27029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEAN BAUER                             :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                  Appellee             :
                                       :
            v.                         :
                                       :
ROBERT BAUER                           :
                                       :
                  Appellant            :   No. 1690 WDA 2016


              Appeal from the Order Entered October 7, 2016
 In the Court of Common Pleas of Erie County Domestic Relations at No(s):
                  NS201201022 / PACSES NO. 370113298


JEAN BAUER                             :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                  Appellee             :
                                       :
            v.                         :
                                       :
ROBERT BAUER                           :
                                       :
                  Appellant            :   No. 360 WDA 2017


             Appeal from the Order Entered February 17, 2017
 In the Court of Common Pleas of Erie County Domestic Relations at No(s):
                  NS201201022/PACSES No. 370113298


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 13, 2017

     Robert Bauer (“Father”) appeals from orders entered on October 7,

2016, and February 17, 2017, respectively. For the reasons set forth below,

we affirm the October 7, 2016 order appealed at Superior Court docket
J-A27029-17


number 1690 WDA 2016, and we quash the appeal at Superior Court docket

number 360 WDA 2017.1

                            Appeal at 1690 WDA 2016

       The record reveals that Father and Jean Bauer (“Mother”) were

married in 1995. Mother and Father are the parents of B.B., born in May of

1999, and M.B., born in March of 2002 (collectively “the Children”). Mother

and Father separated in 2012. Beginning in 2012, the couple shared legal

custody and had physical custody on a 50/50 basis.                On May 31, 2016,

Father filed a petition for modification of child support.

       Conference Officer Kelly A. Krause held a support conference on

July 6, 2016.     Officer Krause concluded that Mother’s monthly net income

was $2,943.77 and Father’s monthly net income was $3,725.60, and she

ordered Father pay to the Pennsylvania State Collection and Disbursement

Unit   $1,016.30     per    month,     with    arrears   of   $2,910.42   due   in   full

immediately. Interim Order, 7/7/16. Father filed timely objections, and the

trial court held a hearing de novo.            Following the hearing, the trial court

entered an order directing Father to pay $984.17 per month, including

$874.67 for current child support and $109.50 for arrears. Order, 10/7/17.
____________________________________________


1 On July 10, 2017, Father filed a motion to consolidate the appeals at 1690
WDA 2016 and 360 WDA 2017 as “[b]oth appeals relate to and involve the
same child support issue in the same support case involving the same
children.” Motion to Consolidate, 7/10/17, at ¶2. This Court granted
Father’s motion and consolidated the appeals in an order filed on July 19,
2017.



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J-A27029-17


Father filed a timely notice of appeal.      Both Father and the trial court

complied with Pa.R.A.P. 1925.

      In this appeal, Father raises the following issues for this Court’s

consideration:

      1. When determining child support pursuant to the Pennsylvania
         Child Support Guidelines, did the trial court judge misapply
         the law or otherwise commit reversible error by:

            a. Ignoring the 50/50 joint physical custody
               schedule set forth in the applicable permanent
               custody order, and relying instead on a temporary
               order suspending custody as to one child pending
               trial  on    Appellee’s   Petition  for   Custody
               Modification and on the appellee’s unilateral
               exercise of 100% physical custody of the other
               child notwithstanding a contempt petition pending
               against her for violation of the applicable
               permanent custody order;

            b. Ignoring Appellee’s income from the taxable
               distribution of an IRA account as reported on her
               tax return; and

            c. Instead of using Appellant’s actual income as
               reported on his tax return, finding that Appellant
               had consented to use of an implied income equal
               to his salary at the time he was involuntarily
               terminated from his job in July 2015.

Father’s Brief at 9 (internal footnote omitted).

      Our standard of review 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,

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J-A27029-17


       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.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014) (citation omitted).

       Father argues that the trial court: abused its discretion by ignoring the

50/50 custody arrangement and relied on a temporary custody order in

determining the amount of child support owed; ignored Mother’s 401(k)

distribution;   and    erred    in   imputing    Father   an   earning   capacity   of

$60,000.00. We disagree.

       The trial court addressed Father’s issues as follows:

             As to the Court’s finding [Father’s] earning capacity[2] to
       be $60,000 gross annually, [Father] consented to an earning
       capacity of $60,000 at the time of the September 2015 support
       conference, and has not demonstrated a change in
       circumstances which would justify a reduction.

              An award of support, once in effect, may be modified
              via petition at any time, provided that the petitioning
              party demonstrates a material and substantial
              change in their circumstances warranting a
              modification. See 23 Pa.C.S.A. § 4352(a); see also
              Pa.R.C.P. 1910.19. The burden of demonstrating a
              ‘material and substantial change’ rests with the
              moving party, and the determination of whether
              such change has occurred in the circumstances of
              the moving party rests within the trial court’s
              discretion.
____________________________________________


2 “The determination of a parent’s ability to provide child support is based
upon the parent’s earning capacity rather than the parent’s actual earnings.”
Laws v. Laws, 758 A.2d 1226, 1229 (Pa. Super. 2000) (citation omitted).
A party's age, education, training, health, work experience, earnings history,
and childcare responsibilities are factors which shall be considered in
determining earning capacity. Id. (citing Pa.R.Civ.P. 1910.16-2(d)(4)).



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J-A27029-17


     Plunkard v. McConnell, 962 A.2d 1227, 1229 (Pa. Super.
     2008) citing Bowser v. Blom, 807 A.2d 830 (Pa. 2002)
     [(internal quotations omitted)].

            Moreover, the Court notes that [Father] is an attorney with
     several years of experience, specifically in patent law.
     Therefore, the Court considered [Father’s] age, education,
     training, health, work experience, earnings history, and child
     care responsibilities in determining his earning capacity to be
     $60,000. Thus, while [Father] claims he did not make $60,000
     in 2015 or 2016, the Court finds that $60,000 is his earning
     capacity for support purposes.

            As to the Court’s determination that [Mother’s] 401(k)
     distribution, included on [Mother’s] 2015 income tax return, was
     not income for support calculation purposes, testimony at the
     September 23, 2016, de novo hearing established the 401(k)
     distribution was an equitable distribution pursuant to the parties’
     divorce and thus the amount is not considered income for
     purposes of determining child support.

           In determining income for support purposes,
           however, it is axiomatic that the trial court may not
           include income that constitutes marital property
           under 23 PA.CONS.STAT.ANN. § 3501, as such an
           action would foreclose the equitable distribution of
           those assets.     We have explained that money
           included in an individual’s income for the purpose of
           calculating support payments may not also be
           labeled as a marital asset subject to equitable
           distribution.

     Berry v. Berry, 898 A.2d 1100, 1104 (Pa. Super. 2006)
     (citations and internal quotations omitted).

           As to [Father’s] argument that the Court erred in
     determining a child support amount inconsistent with the
     November 2015 Custody Order and disregarded the support
     provided by [Father] pursuant to the 50/50 physical custody, the
     Court notes that at the time of the September 23, 2016, de novo
     hearing the November 2015 Custody Order had been
     superseded by the Custody Order filed August 12, 2016.




                                    -5-
J-A27029-17


           Following a hearing1 on [Mother’s] Motion for Special Relief
     wherein the Court heard testimony from both parties and
     interviewed the children in chambers, the Court’s August 12,
     2016, Order suspended [Father’s] legal and physical custody as
     to [B.B.]2, and reinstated [Father’s] legal and 50/50 physical
     custody rights as to [M.B.], pending a custody trial3. Fourteen
     (14) days after the de novo hearing4 the parties agreed to
     reinstate the November 2015 Custody Order, awarding [Father]
     shared legal and 50/50 physical custody of both children.

           1 The hearing took place over three days, June 6,
           2016, June 16, 2016, and August 11, 2016.

           2 [Father’s] legal and physical custody of [B.B.] was
           suspended as [B.B.] stated he would kill [Father] if
           he had to spend time in [Father’s] custody. The
           Court found [B.B.’s] mental and emotional state
           could be damaged if he was required to see [Father].

           3 [Mother] testified at the de novo hearing that both
           children refused to spend time with [Father].

           4 The parties’ Consent Order was signed October 7,
           2016 and filed October 13, 2016.

           Thus, at the time of the de novo hearing, [Father] did
     not have 50/50 physical custody of both children. As the
     October 7, 2016, Support Order was entered pursuant to the
     custody Order in place at the time of the de novo hearing, the
     Court did not err in determining [Father’s] child support
     amount.5 [Father] was not entitled to a deviation. It is well
     established law in Pennsylvania that

           The obligation to support one’s child does not
           depend on a parent’s custodial rights. ..[.]
           Additionally, the amount of time a parent spends
           with his child has no bearing on the parent’s
           obligation to provide child support. ‘Though the
           parent-child relationship is the basis of this duty, a
           parent may not be released from this obligation by
           the actions of the child. A minor child cannot waive
           [her] right to support. This is so even if [she]
           renounces the parent and refuses to see him.’. .[.]
           Likewise, a parent cannot use the amount of time he

                                   -6-
J-A27029-17


            spends with his child as a method of reducing his
            support obligation at the expense of the child.

      Kimock v. Jones, 47 A.3d 850, 856 (Pa. Super. 2012) (citations
      and quotations omitted).

            5 The Court notes [that Father] could have filed a
            Support Modification when he regained 50/50
            custody of both children, but he did not do so.

Trial Court Opinion, 1/26/17, at 2–4 (emphases added).

      After review, we discern no abuse of discretion or error of law in the

trial court’s decision. The trial court thoroughly addressed Father’s claims of

error and succinctly disposed of the issues Father raised on appeal.

Accordingly, we conclude that Father is entitled to no relief on the appeal at

1690 WDA 2016, and we affirm the trial court’s October 7, 2016 support

order.

                         Appeal at 360 WDA 2017

      While the appeal at 1690 WDA 2016 was pending, Father filed a

motion to enforce the parties’ October 13, 2016 consent order, which as

referenced above, reinstated the November 2015 custody order, awarding

Father shared legal and 50/50 physical custody of the Children. Following a

hearing, on February 17, 2017, the trial court denied Father’s motion, and

Father filed the appeal docketed at 360 WDA 2017.

      After review, we conclude that the appeal at 360 WDA 2017, in which

Father purports to challenge the custody arrangement, was duplicative of

the appeal at 1690 WDA 2016.       The motion underlying the appeal at 360


                                     -7-
J-A27029-17


WDA 2017 was filed solely to modify Father’s support obligation while the

support issue was on appeal. Indeed, this was the trial court’s conclusion; it

held that it lacked jurisdiction because the appeal in the support matter was

pending before this Court at 1690 WDA 2016.           Order, 2/17/17; N.T.,

2/17/17, at 4, 5, 8, 9, and 10.

       Father’s trial counsel correctly pointed out,3 and Mother conceded

that,4 despite the filing of an appeal, trial courts maintain authority to

enforce any order entered in the matter. Pa.R.A.P. 1701(b)(2). However,

as discussed above, the trial court concluded that Father was not seeking

enforcement of a custody order; he was again seeking modification of his

support obligation. Trial Court Opinion, 4/4/17, at 1, 6. Father could have

withdrawn the appeal at 1690 WDA 2016, and as Mother and the trial court

note, sought modification of the support order.5 However, Father did not do

so and proceeded in an attempt to collaterally attack the support order

which was on appeal.

       Because the focus in the appeals filed at both 1690 WDA 2016 and

360 WDA 2017 was solely on Father’s support obligation, and because

Father’s child-support obligation was on appeal at 1690 WDA 2016 when
____________________________________________


3   N.T., 2/17/17, at 5.

4   Mother’s Brief, 360 WDA 2017, at 7.

5 Mother’s Brief, 360 WDA 2017, at 2; Trial Court Opinion, 1/26/17, at 4,
n.5.



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J-A27029-17


Father challenged his support obligation in the matter appealed at 360 WDA

2017, the trial court lacked jurisdiction. See Orfield v. Weindel, 52 A.3d

275, 277 (Pa. Super. 2012) (stating that as a general rule, Pennsylvania

Rule of Appellate Procedure 1701 provides that a trial court loses jurisdiction

over a proceeding once a notice of appeal is filed). We conclude that Father

appealed the October 7, 2016 support order, and then attempted once again

to challenge his support obligation.   The trial court properly concluded in

both matters that Father was assailing his support obligation, and because

Father had already filed an appeal from the October 7, 2016 order, the trial

court lacked jurisdiction over Father’s subsequent filing.        Accordingly,

because the trial court was without authority to enter the February 17, 2017

order, we quash the appeal at 360 WDA 2017.

      For the reasons set forth above, we affirm the October 7, 2016 order

appealed at Superior Court docket number 1690 WDA 2016, and we quash

the appeal from the February 17, 2017 order at Superior Court docket

number 360 WDA 2017.




                                     -9-
J-A27029-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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