J-S08013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.P.                                               IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

T.M.

                            Appellant                  No. 1037 WDA 2015


                  Appeal from the Order dated June 11, 2015
              In the Court of Common Pleas of Lawrence County
       Domestic Relations at No: Case No. 420 of 2006, D.R. PACSES No.
                                  607108347


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED MARCH 8, 2016

       In this child support matter, Appellant T.M. (“Father”) appeals from

the June 11, 2015 order of the Court of Common Pleas of Lawrence County

(“trial court”), which, inter alia, assessed M.P. (“Mother”) with a $581.66 net

monthly income, Father with a $2,363.50 net monthly income, and

established Father’s monthly support obligations for their minor daughter

(“Child”) (born in October 2002), as $782.70, including $227.37 in private

school tuition, plus arrears.1       Upon review, we remand this matter to the

trial court for re-calculation of Mother’s net monthly income and preparation

of a supplemental Rule 1925(a) opinion.

____________________________________________


1
 Because this case affects a minor child, we have abbreviated the parties’
names.
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      The facts and procedural history underlying this case are undisputed.

On February 4, 2015, Mother filed a “Petition for Modification of an Existing

Support Order” for Child, claiming only a change in her income.       Mother

sought to modify the trial court’s January 15, 2013 order that assessed her

with a net monthly earning capacity of $2,017.68, Father with a net monthly

income of $2,433.93, and set Father’s child support obligations at $630.59,

which included a monthly payment of $137.20 for private school tuition.

      On May 5, 2015, the trial court held a de novo hearing on Mother’s

modification petition, at which Mother argued that her actual earnings did

not match the earning capacity assessed to her by the trial court in the

January 15, 2013 order. Mother argued that she earned less because she

worked fewer than 40 hours per week. Mother testified that she worked as

a therapeutic staff specialist for Comprehensive Children and Family

Services, providing one-on-one care to children for purposes of integrating

them into various settings, including their school and their communities.

N.T. Hearing, 5/5/15, at 7-8. Mother testified that she earned $12 per hour

and worked about 26.25 hours per week with three clients.      Id. at 9, 15.

She also testified that she picked up more hours when she filled in for other

specialists.   Id. at 10.   Mother was paid bi-weekly.   Id. at 43.   Mother

claimed that it was difficult for her to get more hours because of scheduling

issues. Id. at 9-10. Mother testified that her income would be reduced in

the summer when school was not in session.       Id. at 12.   Mother further

testified that she had signed a non-compete agreement, which barred her

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from seeking other employment in the mental health field.           Id. at 20.

Additionally, Mother sought an increase in Father’s contribution towards

Child’s schooling, because tuition for the private school had increased.

Mother testified that tuition for the private school was $4,400.00 per year.

Id. at 22.

      On cross-examination, Mother acknowledged that she was not seeking

other employment to supplement her income.           Id. at 31.    Mother also

acknowledged that she had no physical incapacities that would limit her

employment options.       Id. at 40.   Finally, Mother acknowledged that the

tuition for a second child at the private school was reduced by $650.00 and

was thus $3,750.00 per year.      Id. at 37.   Following the hearing, the trial

court assessed Mother with a $581.66 net monthly income, Father with a

$2,363.50 net monthly income, established Father’s monthly support

obligations for Child as $782.70, including $227.37 in private school tuition,

plus arrears, and set Father’s and Mother’s liability for unreimbursed medical

expenses for Child at 80.25% and 19.75%, respectively.            Father timely

appealed to this Court.

      Upon the trial court’s direction, Father filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, raising four assertions of error.

First, Father argued that the trial court’s finding that Mother’s net monthly

income was $581.66 was unsupported by the record. Second, Father argued

that the trial court abused its discretion in determining that Mother

established a substantial change in circumstances warranting a modification

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of her support obligations. In this regard, Father claimed that the trial court

failed to render any findings necessary to justify a deviation from Mother’s

assessed earning capacity of $2,017.68. Third, Father argued that the trial

court abused its discretion in calculating his tuition payment for Child’s

private school, because the court did not take into account the amount of

the discount offered to a second child. Fourth, Father argued that the trial

court erred in calculating the percentage of each parent’s liability for Child’s

unreimbursed medical expenses. In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion, addressing only Father’s first assertion of error.

The trial court agreed with Father that sufficient evidence of record did not

support its finding on Mother’s net monthly income.              See Trial Court

Opinion, 7/31/15, at 2-3.         Accordingly, the trial court asked this Court to

remand the matter for re-calculation of Mother’s net monthly income.

       On appeal, Father repeats these four issues for our review.2

       The standard of review of a trial court’s decision in a 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.
____________________________________________


2
  To the extent Father argues that the trial court erred in failing to order
interim relief to Father, we decline to address this argument because it was
not raised before the trial court or in Father’s Rule 1925(b) statement. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).



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      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.

Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super. 2012) (citations

omitted).

      Father first contends that the trial court’s finding regarding Mother’s

net monthly income was not supported by the record. The trial court and

Mother agree, and we discern no basis upon which to disagree. As the trial

court noted, Mother testified that she worked a total of 26.5—not 20—hours

per week. See Trial Court Opinion, 7/31/15, at 3. Accordingly, we remand

this case to the trial court for re-calculation of Mother’s monthly income.

      We next address Father’s contention that the trial court abused its

discretion in modifying Mother’s support obligations because Mother failed to

establish a change in circumstances sufficient to justify a deviation from her

assessed earning capacity of $2017.68.

      It is settled that:

      [a]n 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. §
      4352(a); see also Pa.R.C.P. No. 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.

Summers v. Summers, 35 A.3d 786, 789 (Pa. Super. 2012) (citations

omitted).   A change in circumstances is considered substantial so as to


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warrant a modification when the change is “either irreversible or indefinite.”

R.C. v. J.S., 957 A.2d 759, 763 (Pa. Super. 2008). “Both parents have an

equal obligation to support their children in accordance with the capacity and

ability of each to do so.”     Sutliff v. Sutliff, 489 A.2d 764, 771 (1985)

(citations omitted).

      [A] person’s support obligation is determined primarily by the
      parties’ actual financial resources and their earning capacity.
      Although a person’s actual earnings usually reflect his earning
      capacity, where there is a divergence, the obligation is
      determined more by earning capacity than actual
      earnings. Earning capacity is defined as the amount that
      a person realistically could earn under the circumstances,
      considering his age, health, mental and physical
      condition, training, and earnings history.

Baehr v. Baehr, 889 A.2d 1240, 1244–45 (Pa. Super. 2005 (citation

omitted) (emphasis added).        See also Pa.R.C.P. No. 1910.16–2(d)(4)

(setting forth factors for consideration so that the trier of fact may impute an

income equal to the party’s earning capacity if it determines that the party

has willfully failed to obtain or maintain appropriate employment). “Where a

party assumes a lower paying job or willfully fails to obtain appropriate

employment, the support obligation is determined by his [or her] assessed

earning capacity.”     Baehr, 889 A.2d at 1245 (citation omitted).    A parent

who becomes ill or disabled, however, cannot be expected to contribute

according to his or her assessed earning capacity.      Hesidenz v. Carbin,

3618, 512 A.2d 707, 711 (Pa. Super. 1986) (citation omitted). As a result,

his or her financial obligation must be based on his or her actual earnings.

Id. “When the trial court sits as fact finder, the weight to be assigned the


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testimony of the witnesses is within its exclusive province, as are credibility

determinations, and the court is free to choose to believe all, part, or none

of the evidence presented.”    Mackay v. Mackay, 984 A.2d 529, 533 (Pa.

Super. 2009).

      Instantly, our review of the record reveals that the trial court failed to

address Father’s second issue in its Rule 1925(a) opinion or otherwise

render any findings to support a substantial change in Mother’s employment

circumstances necessary to deviate from Mother’s assessed net monthly

earning capacity of $2,017.68 in favor of her actual earnings. See Pa.R.C.P.

No. 1910.16-2(d)(4) (noting that the trial court must state in writing its

reasons for assessing a earning capacity). Given the lack of factual findings,

we are unable to engage in a meaningful review of Father’s second issue.

      Similarly, we are unable to review Father’s third and fourth assertions

of error. In his third assertion of error, Father challenges the distribution of

the amount of the discount in tuition, if any, received for a second child and

whether Mother received any other financial assistance for the private

school. In his final assertion of error, Father contends that the trial court

erred in calculating the percentage of each parent’s liability for Child’s

unreimbursed medical expenses.       Because the trial court did not address

these issues in its Rule 1925(a) opinion, we are unable to review them

meaningfully on appeal.

      In sum, because the trial court acknowledged error in calculating

Mother’s net monthly income and failed to address Father’s remaining issues

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in its Rule 1925(a) opinion, we remand this case to the trial court with

instruction to re-calculate Mother’s net monthly income and to prepare and

file a supplemental Rule 1925(a) opinion within 60 days of the date of this

memorandum. The supplemental Rule 1925(a) opinion also shall address in

detail Father’s assertions of error consistent with Rule 1910.16-2(d) and

contain necessary factual findings and credibility determinations. Upon the

filing of the supplemental Rule 1925(a) opinion, the record is to be returned

to this Court within 30 days.

      Case remanded. Panel jurisdiction retained.




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