J-S11017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALYSIA A. SCHMIDT                              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

JOEL T. SCHMIDT

                          Appellant                No. 1267 MDA 2014


                Appeal from the Order Entered June 25, 2014
               In the Court of Common Pleas of Adams County
                       Civil Division at No(s): 11-DR-21
                                                342112197


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED MAY 21, 2015

      Joel T. Schmidt (Father) brings this appeal from the order entered

June 25, 2014, in the Court of Common Pleas of Adams County, that

assessed Father’s support obligation based on his earning capacity. The trial

court set Father’s earning capacity at $91,000.00, and determined his

support obligation, effective as of March 28, 2014, was $2,645.00 plus

$45.00 on arrears, for a total monthly support obligation of $2,690.00.

Father contends the trial court abused its discretion in (1) assigning him an

earning capacity of $91,000.00, and (2) failing to assign an earning capacity

to Alysia A. Schmidt (Mother). Based upon the following, we affirm.

      The facts and procedural history of this case have been summarized by

the trial court, as follows:
J-S11017-15


     Mother filed a Complaint for Support on January 11, 2011, which
     was docketed on January 18, 2011, seeking support for Mother
     and the parties’ three children. By Orders of Court dated January
     14, 201[1], a support conference was scheduled for February 8,
     2011. On February 11, 2011, an Interim Order of Court was
     entered for support of Mother and the children in the amount of
     $3,483.00 per month, consisting of $3,190.00 per month for
     current support and $293.00 per month for arrears, based on a
     net monthly income of $6,459.97 for Father and $0.00 for
     Mother. The conference officer noted in the attached Summary
     of Trier of Fact that because Mother had not worked since 2001,
     because it was a family decision for her to stay home, and
     because the children have some additional needs, that Mother
     was held to a zero earning capacity. The conference officer also
     noted that Father agreed that Mother should not be held to any
     earnings at the time.

     …

     On March 28, 2014, Mother filed a Petition for Modification of an
     Existing Support Order, which was docketed on March 31, 2014.
     In the petition, Mother alleged that she was entitled to an
     increase in support and requested a review of the support order
     because it had been over three years since the current support
     order was entered and her monthly expenses had increased. By
     Order of Court dated April 1, 2014, a support conference was
     scheduled for April 22, 2014. After conference, an Interim
     Support Order dated April 29, 2014 was entered. The order set
     Father’s monthly support obligation at $2,289.00 per month,
     consisting of $2,099.00 per month current support and $190.00
     per month arrears, and recognized that Father’s monthly net
     income is $3,736.56 and that Mother’s net monthly income
     remained at $0.00. In the Summary of Trier of Fact, the
     conference officer indicated that Father left his previous
     employer because the contract for the job was expiring, and that
     Mother stated that she doesn’t work because she takes care of
     the children’s needs. The conference officer also noted that
     Father’s average gross income was $2,263.13 biweekly and that
     Father’s recruitment allowance of $8,104.35 was included in his
     income for support purposes.

     On May 20, 2014, Mother filed a Demand for Hearing, which was
     docketed on May 21, 2014. In Mother’s Demand for Hearing,
     Mother alleged that Father’s monthly support obligation is not

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       enough to raise the parties’ three children. By Order of Court
       dated May 21, 2014, a de novo hearing was scheduled for June
       25, 2014 with this Court.

       On June 25, 2014, the de novo hearing was held, with Mother
       attending in person and represented by Attorney Yannetti and
       Father attending without his attorney by way of speakerphone
       from California. The procedural history of the case was reviewed
       on the record. Father had been working on a contract job, which
       was set to expire. Rather than become unemployed, Father
       chose to obtain other employment at a lower wage. The current
       support order had been calculated using Father’s new income
       from the new employment, which resulted in a significant
       reduction in support for Mother. Mother objected to the lower
       amount of support because she did not feel it was enough for
       her to take care of herself and the parties’ three children.

       The conference officer indicated that the support amount under
       the prior order had been $3,190.00 per month plus arrears, and
       that the current support amount under the current order is
       $2,099 per month, a difference of $1,091.00 per month. … The
       conference officer indicated that Father’s prior salary was
       $115,000.00 per year, and that Father’s new salary was
       $58,841.38 per year plus a recruitment allowance of $8,100.00
       that was included in his income for the calculation of the support
       order. The conference officer also stated that Father’s prior
       employment had been with L3 Communications, and his current
       employment is with the Federal Bureau of Prisons.[1]

       …

       … [T]his Court confirmed several facts with Father. This Court
       asked Father if he had been making $115,000.00 per year
       working for L3 Communications for a couple of years, and Father
       indicated that he had been making closer to $175,000.00 per
____________________________________________


1
  We note that even though Mother filed a petition for modification, seeking
an increase in support, the conference officer had authority to decrease
Father’s support obligation.    See Pa.R.C.P. 1910.19(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.”)



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     year. Father indicated that due to a decrease in funding for the
     war effort, Father’s salary went from over $173,000.00 per year
     to about $108,000.00 per year. Father indicated that the prior
     order based on his income of $115,000.00 was for the job he
     took in California which no longer exists. Father confirmed that
     he is currently working for the Federal Bureau of Prisons making
     $58,841 per year plus the recruitment bonus, totaling about
     $66,900.00 as used for his income in the current support order.

     …

     … Father indicated generally that the prior jobs he was able to
     take with higher salaries in support of the war effort were no
     longer available. This Court asked Father what the least amount
     of money he has made annually in the last ten years was, and
     Father indicated that his current job was the least amount.
     Father described his current position as a worst case scenario,
     and indicated that he had been searching for employment using
     recruiters and the internet. This Court asked Father about his
     line of work, and Father indicated that he had a degree in
     criminology and a career in intelligence. …

     …

     Mother indicated that it would be hard for her to obtain
     employment at the current time. Mother related that one of the
     children is not receiving the services he needs, that the children
     are on waiting lists for treatments, and that one child has more
     special needs than the others. …

     After the hearing this Court entered the Order of Court dated
     June 25, 2014. This Court indicated in the order that the prior
     Order of Court dated April 29, 2014 would remain in effect
     except as modified. This Court modified the April 29, 2014 order
     by setting Father’s earning capacity to $91,000.00 and
     determining that Father’s support obligation, effective to March
     28, 2014, would be $2,645.00 per month plus $45.00 arrears
     per month, for a total monthly support obligation of $2,690.00
     per month.

     On July 25, 2014, Father timely filed his Notice of Appeal of this
     Court’s June 25, 2014 Order of Court. By Order of Court dated
     July 25, 2014, this Court ordered Father to file of record and
     serve on the undersigned a concise statement of matters

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      complained of on appeal. On August 14, 2014, Father timely
      filed his Concise Statement of Errors Complained of Pursuant to
      Rule of Appellate Procedure 1925(b).

Trial Court Opinion, 8/26/2014, at 1-6.

      The two issues raised in this appeal, as framed by Father, are as

follows:

      The trial court abused its discretion and/or erred as a matter of
      law in assigning an earning capacity of $91,000.00 to Father as
      this is both punitive and unrealistic in light of current economic
      conditions and, therefore, the parties’ respective child support
      obligations must be recalculated using Father’s actual income,
      which is a realistic earning capacity particularly in light of the
      fact that Father’s reduction in income was involuntary and out of
      Father’s control[.]

      The trial court abused its discretion and/or erred as a matter of
      law in failing to assign an earning capacity to Mother to calculate
      the parties’ respective child support obligations, particularly in
      light of the fact that all three children are in school full-time and
      there is no physical impediment as to why Mother cannot engage
      in meaningful employment[.]

Father’s Brief, at 7.

      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. 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


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            absolute, and the purpose of child support is to promote
            the child’s best interests.

Kimock v. Jones, 47 A.3d 850, 853–854 (Pa. Super. 2012) (citations

omitted).

      Additionally,

      [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. 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 circumstance is considered substantial so as to

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

R.C. v. J.S., 957 A.2d 759, 763 (Pa. Super. 2008).

      First, Father challenges the court’s decision to assign him an earning

capacity of $91,000.00, which is a reduction from his prior earnings of

$115,000.00, but approximately $24,000.00 higher than his projected

income for 2014. Father asserts his contract with L3 Communications came

to an end just as the war in Afghanistan and Iraq ended, and such wartime

contracts are no longer available.     Father explains he needed to obtain

employment and obtained his current position with the Federal Bureau of

Prisons at an annual salary of $58,841.38 and a recruitment allowance of

$81,000.00. Father argues “the jobs for which Father is qualified as a result



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of his experience and training have dwindled since the war [in] Afghanistan

and Iraq came to an end. Thus, it is time to lower Father’s earning capacity

for support purposes and base his child and spousal support obligation upon

his actual earnings.” Father’s Brief at 15.

      Pennsylvania Rule of Civil Procedure 1910.16-2 provides, in part:

      (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. Ordinarily, either party to a support action
            who willfully fails to obtain appropriate employment will be
            considered to have an income equal to the party’s earning
            capacity. Age, education, training, health, work experience,
            earnings history and child care responsibilities are factors which
            shall be considered in determining earning capacity.

Pa.R.C.P. 1910.16-2(d)(1), (2), (4).




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      Here, in determining Father’s support obligation, the trial court

considered the Rule 1910.16-2(d)(4) earning capacity factors.         The trial

court determined that Father is 47, has not reported any health issues, has a

degree in criminology, and has been employed in a career in the intelligence

field, working for government contractors in both domestic and overseas

operations in support of the war efforts. Prior to Father’s present

employment, working for the Federal Bureau of Prisons, Father worked for

L3 Communications, a government contractor.          The court noted Father’s

prior support order was based on Father’s gross income set at $115,000.00

per year, but Father had indicated he earned upwards of $173,000.00 per

year with L3 Communications, which decreased over time to $108,000.00

prior to the expiration of his contract.      The court also noted Mother’s

statement that Father had not made less than $100,000.00 in the past 15

years. The court found Father left his job with L3 Communications prior to

the expiration of his contract in order to have continued employment.

Finally, the trial court found Father had no child care responsibilities for the

majority of the time, due to Father’s residing in California.   See Trial Court

Opinion, 8/26/2014, at 10–11. The court opined:

      After reviewing the earning capacity factors, it is clear to this
      Court that Father has an earning capacity that is greater than his
      current salary. Although Father voluntarily left his employment
      with L3 Communications prior to the expiration of his
      employment contract, Father did so in order to have continued
      employment and this Court does not consider Father’s change in
      employment to be a voluntary reduction in income. However,
      Father must be held to the appropriate earning capacity, and


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     Father’s earning capacity is higher than his current $58,541 per
     year salary and higher than $66,900.00 per year including the
     recruitment bonus.

Trial Court Opinion, 8/26/2014, at 11.   The trial court explained:

     Father has not made less than $100,000 per year in the past
     fifteen years, until he began working at his current position. This
     Court understands that Father benefited from the war effort and
     some of the lucrative careers available for those willing to work
     overseas in hostile war zones. This Court also understands that
     some of the positions that Father may have been eligible for
     have dried up as the war effort has been reduced. Nevertheless,
     it is Father’s salary history which this Court sees as the primary
     factor in holding Father to an earning capacity of $91,000.00.
     Notably this Court did not hold Father to an earning capacity of
     $100,000 or greater despite Father’s salary history indicating
     that Father has had the capability to earn at least such a salary
     for the majority of his adult life. Rather, this Court determined
     that $91,000.00 per year is an appropriate earning capacity for
     Father, taking into consideration the fewer job opportunities
     open to Father than before, but also Father’s education, training,
     and work experience in the field of intelligence, the children’s
     special needs, and Father's limited responsibility for child care
     duties.

     This Court’s determination that Father’s earning capacity is
     $91,000.00 was not made arbitrarily and was made in
     consideration of all relevant factors, which includes a discount to
     Father’s prior earnings of greater than $100,000.00 per year due
     to the changing circumstances regarding the sources for such
     employment. Additionally, Father’s statements on the record
     that his current position is the “worst case scenario,” the fact
     that Father took his current much lower-paying position in order
     to not have any gaps in employment due to his prior
     employment contract ending, and the fact that Father has
     continued his search with recruiters and on the internet for
     higher paying employment, all show Father’s determination to
     stay gainfully employed and to find employment that reflects his
     actual earning capacity. This Court did not commit an error of
     law or an abuse of discretion in determining Father’s earning
     capacity.

Id. at 11–12.


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       While Father challenges the trial court’s ruling based upon this Court’s

decisions in Novinger v. Smith, 880 A.2d 1255 (Pa. Super. 2005),

Grigoruk v. Grigoruk, 912 A.2d 311 (Pa. Super. 2006), and Dennis v.

Whitney, 844 A.2d 1267 (Pa. Super. 2004), we find these cases present no

basis upon which to disturb the decision of the trial court.

       In Novinger, this Court held that the trial court abused its discretion

in holding the father to an earning capacity of $40,000 based on a welder’s

job that the father held for one year, more than four years prior, for which

he was unqualified and had no formal training. The father, after being fired

from his welding job, searched for additional, commensurate welding jobs.

When his job search proved unsuccessful, he returned to his prior, lifelong

work as a carpenter/roofer. After four years of earning $25,000 per year,

the father filed a petition for modification. This Court instructed: “Even if a

person loses a job through his or her own fault, after several years it is

necessary to reevaluate the situation by considering his or her earning

capacity relative to the employment market at the later time.”        Id., 880

A.2d at 1256 (footnote omitted). Here, however, in contrast to Novinger,

Father had consistent employment at a high-paying rate in his field until

recently before the de novo hearing.2
____________________________________________


2
  We note that Father’s present income was effective “as of January of
2014,” and the de novo hearing in this case was held on June 25, 2014.
N.T., 6/25/2014, at 6.




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      In Grigoruk, this Court stated 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.          The mother in Grigoruk had a

background as an administrator/executive, primarily in the education field.

After she was discharged from the Girl Scouts for willful misconduct, she

conducted a six-month job search. Eventually took the only job she was

offered, as a reading specialist, resulting in a reduction in salary.   Here,

while Father accepted his present job prior to the expiration of his contract

with L3 Communications to avoid a gap in employment, Father’s current

position with the Federal Prison Bureau is outside his career field of

intelligence.

      In Dennis, this Court held that where a parent had not voluntarily

reduced income to avoid more lucrative career opportunities, but had

consistently performed a lower paying job from before the birth of a child,

the trial court did not abuse its discretion in calculating earning capacity

based upon the lower paying job. In Dennis, although the mother sought to

have the father held to a higher earning capacity because he had a Bachelor

of Arts degree in Agricultural Engineering, the father had never worked as an

agricultural engineer.   Here, unlike Dennis, Father’s current, lower paying

position is a recent one.

      We commend Father’s decision to accept a job at a lower wage in

order to avoid a period of unemployment. However, based on our review,

we find no abuse of discretion on the part of the trial judge in assessing

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Father’s support obligation based on an earning capacity of $91,000.00.

See Baehr v. Baehr, 889 A.2d 1240, 1245 (Pa. Super. 2005) (“The trial

court, as the finder of fact, heard the witnesses, and is entitled to weigh the

evidence and assess its credibility.”).

        We recognize that Father’s assigned earning capacity of $91,000.00 is

$24,000.00 greater than his present income, and will be even greater than

Father’s 2015 income, which will be reduced by the $8,100.00 “one time” 3

recruitment bonus.        However, there is no evidence on the record as to

whether Father is required to remain in his current position for a certain

length of time based upon receiving the recruitment bonus. We also note

there was less than six months’ time between when Father’s new income

became effective, January, 2014, and the date of the de novo hearing, June

25, 2014, and Father did not show that he cannot sustain the earning

capacity attributed to him by the trial court.4       Accordingly, Father’s first

argument warrants no relief.             Nonetheless, we add that if Father is

ultimately unable to replace his present salary with one consistent with his



____________________________________________


3
    N.T., 6/25/2014, at 10.
4
   There was limited evidence regarding the extent of Father’s job search.
Father explained: “The jobs that I have [had] since 2008 that are in support
of the war effort [in Afghanistan and Iraq], they really aren’t there.” N.T.,
6/25/2014, at 14. He further testified: I took – the job I had absolutely
went away, and I was hitting every recruiter as well as every – just, you
know, websites[.]” Id.



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assigned earning capacity, he would be able to request modification of the

present support order.

      Father next contends that the trial court erred in failing to assign an

earning capacity to Mother to calculate the parties’ respective child support

obligations. In this regard, Father argues that all three children are in school

fulltime and there is no physical impediment as to why Mother cannot

engage in meaningful employment. Father’s Brief at 26.

      “It is proper for a court to refuse to assign an earning capacity to a

parent who chooses to stay at home with a minor child. Moreover, the trial

court, as the finder of fact, is entitled to weigh the evidence and assess the

credibility of witnesses.”   Krankowski v. O'Neil, 928 A.2d 284, 287 (Pa.

Super. 2007) (citations omitted).

      Here, the trial court reasoned:

            Rule 1910.16-2(d)(4) requires the trial court to look at
      several factors in determining earning capacity, and this Court's
      analysis of these factors as pertaining to Mother and this Court's
      determination that Mother has zero earning capacity are as
      follows:

            Age: Mother is forty-three years of age. Age is not a factor
      that would prevent Mother from working, or, alternatively,
      providing caregiving duties to the parties’ children.

           Education, Training, Work Experience: Mother has not
      worked since prior to 2001, the year of birth of the oldest child.

            Health: There is nothing in the record in this case that
      indicates that Mother has any health issues that would prevent
      her from working, or, alternatively, providing primary caregiving
      duties to the parties' children.


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            Earnings History: Mother has not had any earnings since
     prior to 2001, the year of birth of the oldest child.

           Child Care Responsibilities: Pursuant to the October 15,
     2013 Order of Court in the custody case, Adams County docket
     # 2011-SU-527, Father was provided with partial physical
     custody of the parties’ three children for the Christmas 2013 and
     New Year’s Eve 2013 holidays. The October 15, 2013 Order of
     Court indicated that subsequent to January 1, 2014, Father’s
     physical custody would be based upon the mutual agreement of
     the parties or further order of court. No further order has been
     entered providing Father with additional physical custody time,
     and it is unknown whether the parties have agreed to any
     additional physical custody time for Father. Past orders of court
     have also provided Father with similar limited periods of partial
     physical custody. Mother otherwise has primary physical custody
     of the parties' three children.

           Mother has been a stay-at-home mom, caring for the
     children since the oldest child's birth in 2001. With the exception
     of some limited physical custody time with Father, Mother has
     been the sole caregiver and caretaker for the children, two of
     whom have varying levels of special needs and a third who has
     related behavioral and relational issues. Caring for the children
     and their needs has been a full-time job for Mother. During the
     current summer season, Mother has had to provide full time
     daily care in support of the parties’ middle child and his special
     needs. For reasons unknown to this Court, this child was not
     enrolled in a special summer program for children on the autism
     spectrum and other disabilities, “the Amazing Kids Club,” a
     program which would have helped relieve Mother from some of
     the daytime caretaking responsibilities.

            While this Court understands and has contemplated
     Father’s position regarding Mother’s work status, Father
     underestimates Mother’s duties in caring for the parties’ children
     and their special and related needs. Mother’s duties are
     constant. Mother is currently providing fulltime care for the
     middle child. After the commencement of the school year, it may
     seem to Father that Mother will receive a reprieve for a few
     hours per day while the children are at school, but this time off
     from what is essentially an otherwise twenty-four hour per day
     position provides Mother with time to accomplish associated
     tasks and to manage her household. Mother must certainly also

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J-S11017-15


     be on duty during this time for inquiries from the school, staying
     home with or picking up sick children from school, and taking the
     children to their scheduled medical and other appointments.
     Father has none of these responsibilities.

            This Court finds the earning capacity factor regarding child
     care responsibilities to be the primary and most relevant factor
     in its decision regarding Mother's earning capacity. Mother’s child
     care responsibilities take up the majority of her time, and
     compete completely with her available time to be employed
     outside of these responsibilities. Mother's lack of work and
     earnings history for the past fourteen years would also be
     problematic for Mother trying to reenter the work force at this
     time, but would not alone prevent Mother from acquiring
     meaningful employment. This Court properly held Mother to a
     zero earning capacity, based on its review of the facts and
     circumstances of the instant case, and in consideration of the
     earning capacity factors ….

Trial Court Opinion, 8/26/2014, at 14–16.         We discern no abuse of

discretion. The trial court considered the Rule 1910.16-2(d)(4) factors and

fully explained its rationale for assigning Mother a zero earning capacity,

which is supported by the record. Therefore, we affirm.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2015




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