J-S55019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH J. COTELLESE III                     IN THE SUPERIOR COURT
                                               OF PENNSYLVANIA
                       Appellant

                  v.

LISA M. COTELLESE

                       Appellee                No. 777 EDA 2018


            Appeal from the Order Entered January 26, 2018
             In the Court of Common Pleas of Bucks County
    Domestic Relations at No: 2017 DR 1807 PACSES No. 684116808


JOSEPH J. COTELLESE III                     IN THE SUPERIOR COURT
                                               OF PENNSYLVANIA
                       Appellant

                  v.

LISA M. COTELLESE

                       Appellee                No. 778 EDA 2018


            Appeal from the Order Entered January 26, 2018
             In the Court of Common Pleas of Bucks County
    Domestic Relations at No: 2012 DR 00320 PACSES No. 201113141


BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                FILED NOVEMBER 30, 2018
J-S55019-18


       Appellant, Joseph J. Cotellese III (“Husband”), appeals1 from the trial

court’s January 26, 2018 support order. We affirm.

       The trial court recited the pertinent facts and procedural history in its

Pa.R.A.P. 1925(a) opinion:

              The parties have a long history of support litigation over the
       last six (6) years. On March 22, 2012, Lisa M. Cotellese [(“Wife”)]
       filed a complaint for spousal and child support against [Husband]
       for the parties’ children [(“Children”)]. After appearing at a
       conference on May 4, 2012, an interim order was entered into the
       record setting [Husband’s] monthly child support payments[.]

                                           […]

              On August 16, 2017, [Husband] filed [a] petition for
       modification seeking a decrease in the monthly child support
       payments due to an alleged change in his employment status. On
       September 14, 2017, the parties consented to terminate the
       existing support order. The September 14, 2017 order recognized
       an overpayment in the total amount of [$4,642.24], representing
       [$4,365.24] in total case balance overpayment and [$270.00]
       which [Wife] owed [Husband] for her health insurance
       contribution. [Husband] thereafter filed his “petition to collect
       support overpayment in terminated case[.]”

              [Husband’s] petition was followed by [Wife’s] filing of a new
       petition for child support. […]

             A hearing was held on January 25, 2018. The court heard
       testimony from [Wife], [Husband], and Kathleen Murray, the HR
       generalist from [Husband’s] former employer. The court recited
       on the record that as established at the December 7, 2017
       conference, [Husband’s] net monthly income was determined by
       the officer to be [$5,035.52] based on his gross monthly income
____________________________________________


1  Husband filed his appeal more than thirty days after entry of the order, but
the docket fails to reflect that Husband received notice of the entry of the
order pursuant to Pa.R.C.P. No. 236. Rule 108(b) of the Rules of Appellate
Procedure provides that the date of entry of an order for purposes of appeal
is the date on which the local clerk sends the Rule 236 notice. Pa.R.A.P.
108(b). We will therefore treat this appeal as timely.

                                           -2-
J-S55019-18


     of [$6,500.00]. The court also placed on the record the finding at
     the conference that [Wife’s] net monthly income was [$4,100.00]
     based on annual gross income of [$67,000.00]. The parties also
     stipulated that they have equal physical custody of the Children[,]
     and Wife pays the Children’s health insurance at a monthly cost
     of [$94.90].

            [Husband] testified at the hearing that he was employed
     with AWeber until August 15, 2017 when his employment
     terminated.      [Husband] further testified that his biweekly
     paycheck was [$6,388.47]. [Husband] agreed that his gross
     annual income for 2017 was [$166,000.00]. [Husband] testified
     that following his termination from AWeber he worked eight (8)
     hours per week as a consultant for a company called LUXTECH
     which he obtained, through a firm called Trajectify. [Husband]
     testified he is a 1099 employee for the consulting job, receiving
     monthly gross income of [$5,200.00] per the consulting
     agreement with Trajectify.       [Husband] stated that per the
     consulting agreement, Trajectify would receive twenty percent
     (20%) and he received eight percent (80%) of the consulting
     client payments and that such agreement would terminate twelve
     (12) months from November 2017. [Husband] testified that he
     received additional income in the amount of [$99.00] in 2017 from
     working with clients on his own side project known as ‘Sharey,’ an
     online marketing tool for social media marketing.

           [Husband] testified that as of the time of the hearing, he
     was working with Trajectify contracts for two (2) clients, LUXTECH
     and Club OS, and was also working with this second client through
     Sharey. [Husband] further explained to the court how Sharey was
     developed and how it works. The record before this court
     established that [Husband] started his Sharey project prior to his
     employment termination with AWeber and that [Husband] had to
     shut down Sharey for a period of time at the request of AWeber.

Trial Court Opinion, 5/2/18 at 1-5 (record citations and some capitalization

omitted).

     The trial court assigned Husband an earning capacity of $82,091.15,

concluding that Husband was capable of working more than eight hours per

week, and that Husband was making insufficient efforts to obtain full-time


                                    -3-
J-S55019-18


employment. The trial court also ordered Husband’s $4,642.24 overpayment

to Wife to be liquidated in accord with Pa.R.C.P. No. 1910.19(g)(1).2

       “The amount of a 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.” Portugal v. Portugal, 798 A.2d 246, 249 (Pa. Super.

2002). A parent’s child support duty is absolute, and the goal is to promote

the children’s best interests. Samii v. Samii, 847 A.2d 691, 694 (Pa. Super.

2004). Further,

             (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.

                                           […]

              (4) Earning Capacity. If the trier of fact determines that a
       party to a support 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. Age, education,
       training, health, work experience, earnings history and child care
       responsibilities are factors which shall be considered in
       determining earning capacity. In order for an earning capacity to



____________________________________________


2   That Rule provides:

             If there is an overpayment in an amount in excess of two
       months of the monthly support obligation and a charging order
       remains in effect, after notice to the parties as set forth below,
       the domestic relations section shall reduce the charging order by
       20% or an amount sufficient to retire the overpayment by the time
       the charging order is terminated.

Pa.R.C.P. No. 1910.19(g)(1).

                                           -4-
J-S55019-18


        be assessed, the trier of fact must state the reasons for the
        assessment in writing or on the record.

Pa.R.C.P. No. 1910.16-2(d)(4).

        Instantly, the trial court found that Husband failed to seek full time

employment after his termination from AWeber. Trial Court Opinion, 5/2/18,

at 9-10.     Instead, he worked approximately eight hours per week as a

consultant. Father testified that he had been reaching out to his network, but

that he had not met with any recruiters or sent out any resumes in an attempt

to procure full time employment. N.T. Hearing, 1/25/18, at 51-52.

        The trial court reasoned:

               It is this court’s determination from examining the record,
        assessing the witness(es) and considering the evidence and
        testimony presented that [Husband] possesses the availability,
        necessary physical health conditions, work experience,
        intelligence, mental ability, job skills and employment history to
        secure employment more suitable to an earning capacity as
        assessed by this court, and not the lower amount he currently
        derives from his eight (8) hours per week consulting work.
        [Husband] has not shown any effort to actively secure full-time
        employment. [Husband] admitted he did not complete any job
        applications, did not have any job interviews and was not working
        with any headhunters.

Trial Court Opinion, 5/2/18, at 11. Furthermore, the record indicates that the

trial   court   chose   to   liquidate   Husband’s   overpayment   pursuant   to

1910.19(g)(1) because a charging order is presently in effect, despite the

termination of a prior support order.

        We have reviewed the parties’ briefs, the applicable law, the record, and

the trial court’s opinion. We conclude that the trial court’s May 2, 2018 opinion



                                         -5-
J-S55019-18


accurately addresses Husband’s assertions of error. We affirm the order based

on the reasoning set forth in the trial court’s opinion, and we direct that a copy

of that opinion be filed along with this memorandum.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/18




                                      -6-
                                                                                Circulated 10/31/2018 04:14 PM



   IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                    DOMESTIC RELATIONS SECTION


LISA M. COTELLESE                                     No. 2012-DR-00320

                                                      PACSES: 201113141
       v.
                                                      778 EDA2018

JOSEPH J. COTELLESE, III                              CONSOLIDATED


JOSEPH J. COTELLESE, III                              No. 2017-DR-01807

                                                      PACSES: 684116808
       v.
                                                      777 EDA2018

LISA M. COTELLESE                                     CONSOLIDATED




                                            OPINION

       Appellant, Joseph]. Cotellese, III ("Father"), appeals to Pennsylvania Superior Court from

the Support Orders entered by this Court on January 26, 2018 establishing monthly payments for the

support of the parties' two (2) children.      After review of these matters, the Superior Court

consolidated the appeals. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), we now file

this Opinion in the above-captioned matters in support of the Court's ruling.



       I.      BACKGROUND

       The parties have a long history of support litigation over the last six (6) years. On March 22,

2012, Lisa M. Cotellese ("Mother") filed a Complaint for Spousal and Child Support against Joseph J.

Cotellese ("Father") for the parties' children A.C. (date of birth: November 1, 2003) ("Child 1") and

A.C. (date of birth: June 2, 2006) ("Child 2") (hereinafter collectively "Children"). After appearing
for a conference on May 4, 2012, an Interim Order was entered into the record setting Father's

monthly Child Support payments at One Thousand Six Hundred Eighteen Dollars ($1,618.00). The

Order also indicated that as of the date of the hearing, Father owed Three Thousand Four Hundred

Forty-Nine Dollars and Twelve Cents ($3,449.12) in arrears which was "due in full IM.MEDIATELY."

In order to satisfy the monthly payments, multiple wage attachments were issued to Father's then

employer. On June 15, 2012, the parties appeared for a hearing before the Honorable Alan M.

Rubenstein. Judge Rubenstein signed a final Order setting Father's monthly payments for the support

of Mother and the Children at Two Thousand Six Hundred Forty-Three Dollars ($2,643.00), allocated

at One Thousand Four Hundred Seventy-Five Dollars ($1,475.00) for Child Support and One

Thousand One Hundred Sixty-Eight Dollars ($1,168.00) for Spousal Support.


       On September 25, 2012, Mother petitioned the Court for a modification of the existing

Support Order requesting an increase in the monthly payments based on her new employment at a

salary less than the earning capacity previously assigned to her several months earlier. The parties

appeared for a second hearing on January 22, 2013 and reached an agreement which was entered as

an Order of Court. According to the January 22, 2013 Order, Father was to pay monthly Child and

Spousal Support in the amount of Two Thousand Five Hundred Seventy-Nine Dollars ($2,579.00).

Several months later, Father filed a Petition for Modification of that Order on May 7, 2013. In the

Petition, Father requested a decrease due to circumstances resulting in a reduction of his income. In

the June 25, 2013 Order, the Court entered the third Support Order in this case finding Father's

monthly net income had decreased to Two Thousand Two Hundred Seventy-Eight Dollars and Fifty-

Three Cents ($2,278.53) and therefore a reduction in Child and Spousal Support to the amount of

Five Hundred Ninety-Four Dollars ($594.00) was ordered. Father was further ordered to pay the

prior arrears of Two Thousand Six Hundred Seventy Dollars and Twenty-Two Cents ($2,670.22)

immediately.


                                                 2
       Several months later, on September 20, 2013, Mother filed a Petition for Modification

requesting reinstatement of Spousal Support and seeking an increase in the monthly Child Support

payments due to Father's improved employment status. A modified Order was entered on October

30, 2013 assessing Father's monthly net income at Eight Thousand Two Hundred Sixty Dollars and

Thirteen Cents ($8,260.13), and ordering Father to pay monthly Child and Spousal Support in the

amount of Two Thousand Nine Hundred Fourteen Dollars ($2,914.00) and arrears set at Three

Thousand Fifteen Dollars and Eighty-Five Cents ($3,015.85) to be paid immediately.


       On February 28, 2014, the Court held its third hearing in less than a year and issued a final

Order setting Father's monthly Child and Spousal Support payments at Two Thousand Six Hundred

Forty-Nine Dollars ($2,649.00) and to pay monthly arrears at the rate of ten percent (10%), or Two

Hundred Sixty-Five ($265.00). Subsequently, on April 21, 2016, the Court issued an Order increasing

the monthly arrears payment to Five Hundred Thirty Dollars ($530.00) and on January 17, 2017, the

Court issued an Order terminating Spousal Support per the Property Settlement Agreement signed by

the parties on December 14, 2016.


       On August 16, 2017, Father filed another Petition for Modification seeking a decrease in the

monthly Child Support payments due to an alleged change in his employment status. On September

14, 2017, the parties consented to terminate the existing Support Order. The September 14, 2017

Order recognized an overpayment in the total amount of Four Thousand Six Hundred Forty-Two

Dollars and Twenty-Four Cents ($4,642.24), representing Four Thousand Three Hundred Sixty-Five

Dollars and Twenty-Four Cents ($4,365.24) in total case balance overpayment and Two Hundred

Seventy-Seven Dollars ($270.00) which Mother owed Father for her health insurance contribution.

Father thereafter filed his "Petition to Collect Support Overpayment in Terminated Case" and a new




                                                 3
docket number of 2017-DR-01807 was issued for that Petition.         Father's case for overpayment

collection was consolidated with the original docket number 2012-DR-00320.


       Father's petition was followed by Mother's filing of a new Petition for Child Support. A

review conference was held on December 7, 2017 before the assigned Domestic Relations Officer

with both parties present and represented by legal counsel. �-\n agreement could not be reached based

on the income information provided and the matter was thereafter scheduled for a hearing before this

Court on january 25, 2018. Following that conference, Mother filed a Petition to Reinstate the Child

Support Order against Father under docket number 2012-DR-00320.


       A hearing was held on January 25, 2018. The Court heard testimony from Mother, Father,

and Kathleen Murley, the HR generalist from Father's former employer, AWeber Systems, Inc.

("A Weber"). The Court recited on the record that as established at the December 7, 2017 conference,

Father's net monthly income was determined by the officer to be Five Thousand Thirty-Five Dollars

and Fifty-Two Cents ($5,035.52) based on his gross monthly income of Six Thousand Five Hundred

Dollars ($6,500.00). The Court also placed on the record the finding at the conference that Mother's

net monthly income was determined by the officer to be Four Thousand One Hundred Dollars

($4,100.00) based annual gross income of Sixty-Seven Thousand Dollars ($67,000.00) from her current

employer, Refrigeration Air Conditioning, as the parties stipulated (N.T. 01/25/2018, P: 24). The

parties also stipulated they have equal physical custody of the Children as fifty/ fifty (50/50), and

Mother pays the Children's health insurance at a monthly cost of Ninety-Four Dollars and Ninety

Cents ($94.90) (N.T. 01/25/2018, p. 24).


       Father testified at the hearing that he was employed with A.Weber until August 15, 2017 when

his employment terminated (N.T. 01/25/2018, pp. 34, 63). Father further testified that his bi-weekly

paycheck was Six Thousand Three Hundred Eighty-Eight Dollars and Forty-Seven Cents ($6,388.47)



                                                 4
(N.T. 01/25/2018, p. 34). Father agreed that his gross annual income for 2017 was One Hundred

Sixty-Six Thousand Dollars ($166,000.00) (N.T. 01/25/2018, P: 34).     Father testified that following

his termination from A Weber he worked eight (8) hours per week as a consultant for a company called

LUXTECH which he obtained, through a firm called Trajectify (N.T. 01/25/2018, P: 35).          Father

testified he is a 1099 employee for the consulting job, receiving monthly gross income of Five

Thousand Two Hundred Dollars ($5,200.00) per the consulting agreement with Trajectify (N.T.

01/25/2018, pp. 35, 37).   Father stated that per the consulting agreement, Trajectify would receive

twenty percent (20%) and he received eighty percent (80%) of the consulting client payments and that

such agreement would terminate twelve (12) months from November 2017 (Sec N.T. 01/25/2018, P:

39). Father testified that he received additional income in the amount of Ninety-Nine Dollars ($99.00)

in 2017 from working with clients on his own side project known as "Sharey", an online marketing

tool for social media marketing (N.T. 01/25/2018, pp. 39-40).


       Father testified that as of the time of the hearing, he was working under Trajectify contracts

for two (2) clients, LUXTECH and Club OS, and was also working with his second client through

Sharey (N.T. 01 /25 /2018, pp. 40-42).      Father further explained to the Court how Sharey was

developed and how it works (N.T. 01/25/2018, 43-44).       The record before this Court established

that Father started his Sharey project prior to his employment termination with A.Weber and that

Father had to shut down Sharey for a period of time at the request of .i\Weber (N.T. 01 /25/2018, p.

63).


       At the conclusion of the hearing the matter was taken under advisement. This Court issued

its decision as set forth in the january 26, 2018 Child Support Order which is the subject of this

Appeal. The Order stated: Father to pay Eight Hundred Fifty Two Dollars ($852.00) per month for

the support of two (2) Children. The Court also ordered that Children's health care coverage would



                                                  5
be provided by Mother. The Order noted that after conducting the hearing and based on all testimony

and evidence presented, the Court determined Father's annual earning capacity based on his prior

history and the record in the case was Eighty-Two Thousand Ninety-One Dollars and Fifteen Cents

($82,091.15). The Order also noted the Court's consideration of the fact that both parties continue

to enjoy a fifty I fift}' (50 / 50) custody arrangement of the Children, and that the parties share child care

expenses for Child 2. This Court issued a separate Order on January 26, 2018 under docket number

2017-DR-01807 that Father's Petition for Recovery of Overpayment is granted and dismissed as same

had been considered and addressed and ordering the case to close.



        On March 5, 2018, Father filed his Notice of Appeal to the Superior Court appealing the

January 26, 2018 Child Support Order. On March 26, 2018, this Court ordered Father to file a Concise

Statement of Errors which he has done. On March 28, 2018, Mother filed a Motion to Quash Appeal,

which was denied by the Superior Court on April 20, 2018.            The Court nO'\V files this Opinion in

support of its ruling.



        II.     STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

        On March 26, 2018, this Court issued an Order pursuant to Pa.R.A.P. 1925(b) directing Father

to file of record and serve on the undersigned a Concise Statement of Errors Complained of on Appeal

within twenty-one (21) days of the date of this Order. The Order also directed that "any issue not

properly included in the concise statement shall be deemed waived."


        On March 27, 2018, Father filed a Concise Statement of Errors Complained of on Appeal, set

forth verbatim herein:

                1. Whether the trial court abused its discretion in holding [Father] to
                     an earning capacity, rather than using [Father's] actual income to
                     determine child support.


                                                      6
                2.   Whether the trial court abused its discretion when it precluded
                     from evidence testimony relating to [Mother's] financial condition

                     and ability to repay [Father's] $4,642.24 overpayment.



       III.     DISCUSSION

       The Superior Court has continuously held that the standard of review in child support cases

is:

                The amount of a 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. An abuse of discretion is not merely an
                error of judgment, but rather a misapplication of the law or an
                unreasonable exercise of judgment. 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.
Kessler v. Helmick, 672 A.2d 1380, 1382 (Pa. Super. 1996) (citation ornitted).


       "An abuse of discretion requires proof of more than a mere error of judgment, but rather

evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable

or based on bias, ill will, prejudice, or partiality." Kersey v. Jefferson, 791 A.2d 419, 423 (Pa. Super.

2002) (citations omitted).


        Father initially argues that this Court abused its discretion when it based Father's monthly

Child Support payments on his earning capacity rather than on his actual income. It is well established

under Pennsylvania law that "both parents are equally responsible for the support of their children."

K.lahold v. Kroh, 649 A.2d 701, 703 (Pa. Super. 1994).         The Superior Court of Pennsylvania has

continuously noted that "the duty to support one's child is absolute, and the purpose of child support

is to promote the child's best interests."   Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (qit0ting

Depp v.   Holland, 636 A.2d 204, 206 (Pa.    Super. 1994)).




                                                     7
       The Court routinely emphasizes in support hearings that it has long been determined under

Pennsylvania law "[tJhe 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 y. Laws, 758 .A.Zd '1226, 1229

(Pa. Super. 2000). Child support payments are awarded based on guidelines using the parties' monthly

net income. Pa.R.C.P. 1910.16-2. "Where a party voluntarily assumes a lower paying job, there

generally will be no effect on the support obligation." Pa.R.C.P. 1910.16-2(d)(1). If a party "willfully

fail[s] to obtain or maintain appropriate employment," support payments may be set based upon the

party's earning capacity. Pa.R.C.P. 1910.16-2(d)(4).


       An earning capacity is the amount a party could realistically earn under the circumstances.

Haselrig v. Haseldg, 840 .r\.Zd 338, 340 (Pa. Super. 2003). Earning capacity is the amount a person

realistically could earn under the circumstances, considering his age, health, mental and physical

condition, training, earnings history and child care responsibilities. Se!! Woskob v. \Xi'oskob, 843 A.2d

1247 (Pa. Super. 2004).    Among the factors that must be considered when determining a party's

earning capacity are age, education, training, work experience, health and earning history. Pa.R.C.P.

1910.16-2(d)(4). A court may also consider other factors, such as jobs available within a certain

occupation and the effort a party has exerted to find employment. Id. Generally, a party's earning

capacity will not be altered if he or she "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." Pa.R.C.P. 1910.16-2(d)(1).


        "The fact-finder is entitled to weigh the evidence presented and assess its credibility." Green

v. Green, 783 A.2d 788, 790 (Pa. Super. 2001). After examining the record and evaluating all testimony

and evidence presented to this Court, the Court properly based Father's monthly Child Support

payments on an assessed earning capacity of Eighty-Two Thousand Ninety-One Dollars and Fifteen



                                                    8
Cents ($82,091.15). Father testified he was employed with A Weber until August 15, 2017 when his

employment was terminated (N.T. 01/25/2018, pp. 34, 63). Importantly, Father testified that his

gross wages for 2016 were One Hundred Sixty-Four Thousand One Hundred Eighty-Three Dollars

($164,183.00) (N.T. 01/25/2018, p. 33). Father testified that his bi-weekly pay from A Weber in 2017

was Six Thousand Three Hundred Eighty-Eight Dollars and Forty-Seven Cents ($6,388.47) resulting

in a 2017 annual pay rate of One Hundred Sixty-Six Thousand Dollars ($166,000.00) (N.T.

01/25/2018, p. 34).


       Father was terminated from A.Weber on August 15, 2017 (N.T. 01/25/2018, p. 63). Father

was subsequently denied unemployment benefits (N.T. 01/25/2018, P: 35). Since his termination of

employment with A'Weber, Father has been working as a consultant through a consulting firm called

Trajectify (N.T. 01/25/2018, P: 35).   Father's consulting work commenced November 1, 2017, and

was based on a three-month agreement, ending january 2018      (N.T. 01/25/2018, p. 36). The record

is clear that Father works approximately eight (8) hours weekly in his current capacity as a consultant

(N.T. 01/25/2018, pp. 50-51). Father testified:


               By Ms. Fineman:
               Q So based 011 your testimony thus far today, other than the 20 hours
               you spent, in the last week or two, on this new project with Club OS,
               your consulting contracts are generally between eight hours per week,
               and then Club OS, once somebody is hired, will be 30 minutes per
               week. Is that correct?
               A Once somebody's hired, correct.

(N.T. 01/25/2018, pp. 50-51).


       The record also established that Father was not actively seeking full-time employment (N.T.

01/25/2018, p. 51). Father stated:




                                                  9
               By Ms. Fineman:
               Q And what efforts have you made to obtain full-time etnployment?
               A Well, part of what I'm doing with Trajectify and, you know, I think
               it speaks to the way the agreement was written, that 12 months after
               the period I would be no longer obligated to pay Trajectify money, is
               to figure out ways to continue to work with the existing companies in
               a larger capacity.

               In addition to that, I mean, you know, I found the Trajectify work by
               reaching out to my network. I mean, that's the way -- you hit a certain
               level in your career and the best way to find new work is to connect
               with people face to face, you know, rather than, like, a Monster.corn-
               type board. So, you know, I've been, you know, reaching out to people
               in my network, having conversations, having a lot of coffee to tty to
               find additional work.
(N.T. 01/25/2018, p. 51).


       Father further confirmed he has not formally sought full-time employment with another

employer like he had with A.Weber:


               By Ms. Fineman:
               Q Have you applied for any other jobs?
               A I have not filed, like, a formal job application with other companies.
               Q Have you had any other -- any interviews for jobs?
               A I had -- no, no other interviews.
               Q Have you worked with any headhunters?
               A I generally avoid working with headhunters because when I've tried
               working with them in the past, they just haven't gotten me any valuable
               positions.
               Q Do you have any other substantive leads for full-time employment
               other than the work that you're currently doing with Trajectify?
               A Not currently. Well, I mean -- and Club OS.
               Q Club OS is through Trajectify, though. Correct?
               A Again, like, I -- you know, I pitched them specifically. You know,
               like, I was introduced to the CEO of Club OS I think back in October,
               November, and then I saw a potential opportunity with them. And
               then I actively pursued, you know, pitching them as a consultant.

(N.T. 01/25/2018, pp. 51-52).


       This Court recognizes Father did not voluntarily depart from his job with A. Weber and that

there is a dispute between the parties as to whether or not Father was terminated for cause. Regardless



                                                  10
of that determination, the Court properly concluded Father's current earning capacity is simply not

commensurate with what he earned at A Weber. It is th.is Court's determination from examining the

record, assessing the witness(es) and considering the evidence and testimony presented that Father

possesses the availability, necessary physical health conditions, work experience, intelligence, mental

ability, job skills and employment history to secure employment more suitable to an earning capacity

as assessed by this Court, and not the lower amount he currently derives from his eight (8) hours per

week consulting work.     Father has not shown any effort to actively secure foll-time employment.

Father admitted he did not complete any job applications, did not have any job interviews and was

not working with any headhunters.


       Under Pennsylvania law, parents have an absolute obligation to support their children and this

obligation "must be discharged by the parents even if it causes them some hardship." Mencer v. Ruch,

928 J\.Z<l 294, 297 (Pa. Super. 2007). Based on the evidentiary record and Pennsylvania law, the Court

properly found that Father failed to obtain appropriate employment despite being an educated,

experienced and intelligent man in good health. The Court holds Father is capable of securing full-

time employment to earn income higher than his current consulting and appropriate to his actual

earning capacity in order to allow him to meet his monthly Child Support payment obligations. For

these reasons, the Court properly concluded that Father should be assessed an earning capacity of

Eighty-Two Thousand Ninety-One Dollars and Fifteen Cents ($82,091.15) gross annually. This is not

the amount of One Hundred Sixty-Six Thousand Dollars ($166,000.00) he earned annually at A Weber,

but is more than what he currently earns annually from his limited consulting work and his start-up

Sharey project.


       Father next argues that the Court abused its discretion when it precluded from evidence

testimony relating to Mother's financial condition and ability to repay Father's overpayment in the



                                                  11
amount of Four Thousand Sixty Hundred Forty-Two Dollars and Twenty-Four Cents ($4,642.24).

This Court finds Father's contentions are without merit. Father will obtain credits against this amount

for his Child Support obligation as established herein.


          At the commencement of the january 25, 2018 hearing, both parties stipulated Mother's

annual grnss income is Sixty-Seven Thousand Dollars ($67,000.00) from Refrigeration Air

Conditioning and such conclusion was based on her paystubs (N.T. 01/25/2018, P: 24). The parties

also stipulated they share equal physical custody fifty/fifty (50/50) of the Children (N.T. 01/25/2018,

P: 24).    Additionally, the parties agreed Mother pays health insurance for the minor Children at a

monthly cost of Ninety-Four Dollars and Ninety Cents ($94.90) (N.T. 01/25/2018, p. 24).

Furthermore, Mother testified at the hearing and Father was given ample opportunity to cross-

examine Mother and offer any documents into evidence (See N.T. 01 /25/2018, pp. 26-29). Nothing

in the record indicates this Court denied Father the opportunity to introduce any testimony and/ or

exhibits to support his case in this regard.


          "It is within the discretion of the trial court to determine, under all the circumstances, what is

just and equitable." Hattley v. Hartley, 528 i\.2d 233, 235 (Pa. Super. 1987). Rule 1910.19(g)(1) states,

in pertinent part:

                  [i]f there is an overpayment .in an amount in excess of two months of
                  the monthly support obligation and a charging order remains in effect,
                  after notice to the parties as set forth below, the domestic relations
                  section shall reduce the charging order by 20% or an amount sufficient
                  to retire the overpayment by the time the charging order is terminated.

Pa.R.C.P .1910.19(g)(1 ).


          In reaching its decision, the Court duly considered all evidence submitted into the record and

all witnesses' testimony and credibility thereof at the hearing.      The Court notes the September 14,

2017 Order established an overpayment owed to Father in the total amount of Four Thousand Six


                                                     12
Hundred Forty-Two Dollars and Twenty-Four Cents ($4,642.24), representing Pour Thousand Three

Hundred Sixty-Five Dollars and Twenty-Four Cents ($4,365.24) in case balance overpayment and

Two Hundred Seventy-Seven Dollars ($270.00) which Mother owed Father for health insurance

contribution toward offset for the month of September 2017. The .Janua1y 26, 2018 Order states in

part "[sJhould there be an overpayment on the account, it is to reduce by 20% per PaRCP 1910.19

9(g)(1)." The Court's Order further indicated "[t]he sum of $4365.24 is to be reinstated as a credit to

be liquidated as stated above." Additionally, per the January 26, 2018 Order, Mother is obligated to

provide the Children's health care coverage and Mother is responsible to pay the first Two Hundred

Fifty Dollars ($250.00) annually per Child for any unreimbursed medical expenses. The Court granted

Father's request for recognition of his overpayment and, therefore, Father's contentions with respect

to the application or disposition of that overpayment credit ate meritless.


       Finally, at the conclusion of the January 25, 2018 heating, the parties articulated to the Court

their stipulation to Father's overpayment issues and how it is going to be liquidated:


               THE COURT: I see the analysis that there was extra -- I think I
               incorporated that into the record. Does mother disagree that there
               was an overpayment?
               MS. FINEMAN: No. There's a Consent Order as part of Your
               Honor deciding how that's going to be liquidated.
               THE COURT: So there's no dispute as to overpayment.

(N.T. 01/25/2018 p. 93).



       The Court finds that Father is capable of gaining full-time employment more appropriate with

the earning capacity assigned by the Court and that his efforts to meet his Children's support

obligations and his general overall financial well-being would be better served in that manner, rather

than the cost and expense of protracted litigation.




                                                   13
       IV.     CONCLUSION

       Based upon the foregoing reasons, this Court finds Father's Appeal is without merit. The

Court's Support Order should be affumed for the reasons set forth hereinabove.




                                                     BY THE COURT:




Date: !',fay 2, 2018




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