J-A20014-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RALPH A. FERRIS                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

MARYANN PETRI

                          Appellant                No. 1443 WDA 2015


                  Appeal from the Order September 4, 2015
                 In the Court of Common Pleas of Erie County
                  Domestic Relations at No(s): NS20150596


BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 06, 2016

      Maryanne Petri (“Mother”) appeals from the child support order

entered on September 4, 2015, which established her monthly obligation for

three children at $789.    We affirm.

      Mother and Ralph A. Ferris (“Father”) married on June 18, 1994,

separated during 2002, and divorced on December 31, 2004. The parties’

three children were born during April 1998, March 2001, and July 2002

respectively.   Mother and Father initially shared equal physical custody of

the children, and during 2013, Mother, a registered nurse, obtained a child

support award in the amount of $300 per month. The award was calculated

using an assessed monthly earning capacity of $3,521.57 to determine

Mother’s income for the purposes of the support guidelines. While Mother
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disputed the court’s determination of her earning capacity at every stage of

those support proceedings, she did not appeal the trial court’s final child

support order.

       The amicable custody arrangement between Mother and Father quickly

deteriorated, and following an “indicated” report that Mother perpetrated

emotional abuse against one of the children, Father obtained primary

physical custody of the children during 2015.1           As Mother was limited to

partial   physical    custody    on    alternating   weekends,   her   support   was

terminated, and on April 24, 2015, Father filed the complaint for child

support that is the genesis of this appeal.

       Following a support conference, the trial court’s domestic relations

section entered an interim order awarding Father $789 per month in child

support and $90 toward arrears. While the parties agreed upon Father’s net

monthly income, which was documented by his federal tax return for 2014,

Mother’s earnings were again contested. Mother argued that she no longer

had the earning capacity that was assessed in the former case because she

lost her child abuse clearances under the Child Protective Services Law
____________________________________________


1
  The Child Protective Services Law recognizes three types of child abuse
reports: 1) an “Indicated report” is an agency determination that is
supported by substantial evidence of alleged abuse based upon its own
investigation; 2) a “Founded report” has been verified by a judicial
adjudication of guilt, guilty plea, or plea of no contest; and 3) an “Unfounded
report” is any report that is determined to be neither indicated nor founded.



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(“CPSL”) as a consequence of the founded allegation of abuse and could not

work in the positions that she previously held.        Father countered that

Mother’s earning capacity was established in the prior proceeding and that

the identical figure should be used in the present case.       The domestic

relations section agreed and assessed Mother a net earning capacity of

$3,521.57 in light of the prior assessment and Mother’s education and work

experience.

     Mother demanded a de novo support trial, arguing that she had been

unemployed for seven months due to the allegations of abuse and that she

could only work one day per week as a result of related stress and mental

health issues.   Father’s income was not in dispute.    At the outset of the

September 4, 2015 hearing, Father’s attorney reminded the trial court of the

prior support proceedings that the court presided over during 2013, in

relation to Mother’s support complaint. Father posited that Mother should be

held to the same earning capacity that the court assessed at the close of the

2013 proceeding.    The trial court stated that it understood the relevant

issues and invited Mother to proffer testimony.

     Mother testified that, prior to January 2015, she earned approximately

$27 per hour as an emergency room nurse at St. Vincent Hospital.         She

worked four twelve-hour shifts per two-week pay period, i.e. twenty-four

hours per week. In January 2015, the hospital suspended her without pay

as a result of the indicated finding of abuse. She returned to work during

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July 2015, when the indicated finding was expunged from her record and

she was eligible to receive the required child abuse clearances.2 While she

received a two-dollar per hour raise upon her return to work, she reduced

her employment to one four-hour shift per week. Mother asserted that the

reduction was due to her diagnoses of anxiety and depression.                She

attempted to verify her mental health conditions by introducing two

physician verification forms that had been completed by her psychiatrist and

her primary care physician; however, the trial court sustained Father’s

objection to the documents as untimely under Pa.R.C.P. 1910.29(b)(2)

(party must serve the physician verification form no later than twenty days

after the support conference).          After sustaining the objection, the court

reiterated, “I also understand that these issues have been before the court

significantly before.”     N.T., 9/4/15, at 11-12.3    Following the hearing, the

____________________________________________


2
  Days after an administrative law judge expunged the agency’s “indicated”
finding of emotional abuse, Erie County Child and Youth Service issued a
fresh “indicated” finding of abuse against Mother in relation to one of the
other children. Mother’s appeal from the latter determination was pending
when the support hearing occurred. N.T., 9/4/15, at 3, 7-8, 12. Father
avers in his brief that the second indicated report was also expunged.
Father’s brief at 5 n.4.
3
  We observe that, to the extent that the trial court indicated that it heard
evidence regarding Mother’s mental health problems during the 2013
proceedings, the record does not support that finding.          The current
allegations of anxiety and depression did not arise until 2015, supposedly
concomitant with the loss of shared physical custody of the children and the
leveling of indicated reports that she perpetrated emotional abuse. Stated
(Footnote Continued Next Page)


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trial court sustained the domestic relations section’s award to Father of $789

per month child support (plus $90 toward arrears) and entered that award

as a final child support order. This appeal followed.

      Mother complied with the trial court’s order to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         In its

ensuing Rule 1925(a) opinion, the trial court misstated the procedural

posture of this matter as an appeal from Mother’s petition for modification of

an existing support order, and it cited legal authority relevant to the review

of that type of petition. In addition, in reaching its ultimate determination,

the trial court found that the circumstance that led to Mother’s inability to

obtain her CPSL clearances, i.e., the allegation of abuse, was tantamount to

Mother’s voluntary reduction of income under Pa.R.C.P. 1910.16-2(d)(1) and

concluded that Mother did not adduce evidence to establish that she

attempted to find alternative employment in order to mitigate the lost

income. This appeal followed.

      Mother presents three questions for our review:

            1.    Whether the trial court abused its discretion by
      ignoring significant factors beyond Mother’s control that had
      material, adverse impacts on her ability to work at her
      established place of employment . . . as well as to earn income
      in general; i.e., frivolous [abuse] cases that [delayed] . . .
      necessary clearances to work with patients[.]
                       _______________________
(Footnote Continued)

plainly, we do not rely on this aspect of the trial court’s recollection of the
2013 proceedings.



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             2.    Whether the trial court abused its discretion in
       disregarding valid Physician Verification Forms [confirming her]
       health issues.

              3.    Whether the trial court abused its discretion in
       assigning Appellant [an earning capacity] based upon full-time
       work . . . when her employment history since 2002 [was not]
       full-time [sic].

Mother’s brief at 5.4

       We previously stated “[t]he principal goal in child support matters is to

serve the best interests of the children through the provision of reasonable

expenses.” R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013). A parent’s

duty to provide for his or her children financially is absolute “even if it

causes hardship or requires sacrifice.”          E.R.L. v. C.K.L., 126 A.3d 1004,

1007-1008 (Pa.Super. 2015); Christianson v. Ely, 575 Pa. 647, 838 A.2d

630, 638 (2003). Upon review of a child support order, we apply the abuse

of discretion     standard and       we    “may only    reverse the   trial court's

determination where the order cannot be sustained on any valid ground.”

R.K.J., supra. “An abuse of discretion is [n]ot merely an error of judgment,

but if in reaching a conclusion the law is overridden or misapplied, or the

____________________________________________


4
  Father’s argument focuses upon the testimony adduced during the 2013
trial and items in Mother’s reproduce record. As neither the notes of
testimony from the related, but distinct, child support case nor the pertinent
contents of the reproduced record are included in the certified record, we
may not consider them herein. Hence, Father’s brief is of little value to our
review.



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judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will, as shown by the evidence of record.” Id.

      We address Mother’s three issues jointly.         The crux of Mother’s

collective contention is that the trial court erred in assessing an earning

capacity, rather than utilizing her actual income, in calculating her child

support obligation under the support guidelines.          Preliminarily, Mother

assails the trial court’s mischaracterization of this case as an appeal from a

petition to modify an existing support order. She argues that the misstep is

either “a breath taking level of incompetence” or “a deliberate effort to

deceive [this Court about] the nature of the case.”       Mother’s brief at 11.

She highlights that the current support matter is listed under a different

docket number than the support order entered in 2013 and notes that the

parties have exchanged roles of obligor and obligee since 2013. The second

component of Mother’s argument is that, in light of the trial court’s

misstatement of the underlying proceedings as a petition for modification,

the court’s assessment of earning capacity was improper because Father did

not demonstrate that she hid income or that a discrepancy existed between

income and training. The final aspect of the argument challenges the trial

court’s finding that Mother’s employment issues relating to her inability to

obtain CPSL clearances was tantamount to a voluntary reduction in income

that would warrant utilizing an assessed earning capacity over actual

earnings. No relief is due.

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      We define earning capacity as “that amount which the person could

realistically earn under the circumstances, considering his or her age, health,

mental and physical condition and training.” Gephart v. Gephart, 764 A.2d

613, 615 (Pa.Super. 2000)(citation omitted).          Pursuant to Pa.R.C.P.

1910.16-2(d)(4), which permits the trial court to impute an income equal to

a party’s earning capacity, the trial court is directed to engage the following

considerations:

      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. In order for
      an earning capacity to be assessed, the trier of fact must state
      the reasons for the assessment in writing or on the record.
      Generally, the trier of fact should not impute an earning capacity
      that is greater than the amount the party would earn from one
      full-time position.      Determination of what constitutes a
      reasonable    work regimen depends upon all relevant
      circumstances including the choice of jobs available within a
      particular occupation, working hours, working conditions and
      whether a party has exerted substantial good faith efforts to find
      employment.

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

      Instantly, the trial court erred in treating Mother’s de novo appeal

from the conference officer’s interim order as a petition for modification.

However, the misstep was harmless insofar as Rule 1910.16-2(d)(4) permits

the trial court to impute an earning capacity in this case that was equal to

the amount the court attributed to Mother in 2013.           Significantly, we

observe that the trial court did not simply apply that amount mechanically as

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J-A20014-14




the law of the case.    Rather it considered the factors enumerated in Rule

1910.26-2(d)(4), and noted that several of the factors remained unchanged

since the earlier proceeding. The fact that the present case is listed under a

different docket number than Mother’s 2013 complaint or that Mother and

Father have exchanged roles as support obligor and obligee since 2013 are

irrelevant to the determination of Mother’s monthly income for purposes of

calculating her obligation under the support guidelines. The key factors for

the court’s consideration were Mother’s training, health, work experience,

and earnings history.    All of these factors were either unaffected by the

passage of time or were addressed by the trial court during the de novo

hearing.    Hence, we reject Mother’s assertion that the trial court’s

mischaracterization of the case as a petition to modify an existing order is

tantamount to reversible error. The trial court was familiar with the facts of

this case and while Mother introduced evidence of her current employment

status, as discussed infra, she did not establish that any of the factors had

changed in any meaningful way.

      The second aspect of Mother’s argument is that Father did not

demonstrate that earning capacity was warranted. Specifically, she argues

that Father could not establish that she failed to obtain appropriate

employment or hid income, or that a discrepancy exists between her training

and actual income. The certified record belies this assertion.




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      While Mother is not hiding income, during the evidentiary hearing, she

testified that despite her training, experience, and ability to earn between

$27 and $29 per hour, she elected to work twenty-four hours per week prior

to her suspension during January 2015 and only four hours per week

following her reinstatement. Hence, Mother’s actual income is incongruous

with her established earning capacity. Although Mother claimed that stress

and mental health problems prevented her from working more than four

hours per week, she did not introduce evidence to support her claim. Recall

that the trial court sustained Father’s objection to the two physician

verification forms that Mother attempted to introduce and found her

unsubstantiated testimony incredulous.

      As the propriety of the trial court’s evidentiary ruling may be dipositive

of Mother’s current argument, we address this question at the outset.

Essentially, Mother assails the trial court for sustaining Father’s objections to

the two completed physician verification forms that she attempted to

introduce into evidence. Physician verification forms are specific documents

whose form, use, and admissibility is governed by Pa.R.C.P. 1910.29. The

documents are used in support cases to verify that a parent has a medical

condition that affects his or her ability to earn income over a specific period

of time.   Pursuant 23 Pa.C.S. § 4342(f), the forms are not subject to

hearsay exceptions.    They are, however, subject to a notice requirement

under Rule 1910.29(b)(2), which requires the documents to be served “on

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the other party not later than 20 days after the [support] conference” and

the petitioner to allow 10 days for the other party to object to the document.

If proper notice is provided and there is no objection, the form must be

admitted   into   evidence    without      the    physician’s    testimony.     Rule

1910.29(b)(2).     However, where notice was not provided and/or an

objection is leveled, “the rules of evidence apply to determine the

document’s    ultimate   admissibility.”         See   Rule   1910.29,   Explanatory

Comment—2000.

      We recently reiterated, “The admission or exclusion of evidence is

within the sound discretion of the trial court, and in reviewing a challenge to

the admissibility of evidence, we will only reverse a ruling by the trial court

upon a showing that it abused its discretion or committed an error of law.”

K.T. v. L.S., 118 A.3d 1136 (Pa.Super. 2015).                 Herein, the trial court

sustained Father’s objection to the physician certification forms because

Mother neglected to provide the required 20-days’ notice of the forms. The

certified record confirms not only that Mother failed to comply within 20 days

of the support conference, but also that, despite two continuances that

delayed the hearing from August 18, 2015 to September 24, 2015, Mother

neglected to serve the forms upon Father at all.              By failing to serve the

forms on Father, Mother denied him the opportunity to review the

documents and level any substantive objections to their admission without

the examining physicians’ testimony. Under these circumstances, we cannot

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discern an abuse of discretion in the trial court’s decisions to sustain Father’s

objection to the admission of the two forms.

       As the trial court properly excluded the physician verification forms

pursuant to Rule 1910.29(b), the court examined Mother’s bare assertion

that her anxiety and depression prevented her from working in any

meaningful manner.         As noted, the trial court found Mother’s testimony

unpersuasive.       Since credibility determinations are squarely within the

purview of the fact finder, we have no basis to disturb the trial court’s

conclusion that Mother’s reduced employment was properly considered

voluntary under the guidelines and that she did not make any reasonable

attempts to mitigate her lost income.5

       Finally, we rebuff Mother’s assertion that it was unfair for the trial

court to assess her with a full-time earning capacity at this stage of her

career when she traditionally limited her employment to approximately

twenty-hours per week while the family was intact.            Even considering

____________________________________________


5
  In light of the fact that the initial allegation of abuse was expunged, we
reject the trial court’s rationale that Mother’s unpaid suspension between
January and July 2015 was tantamount to a voluntary reduction in
employment. However, to the extent that Mother is terminated or endures
another unpaid suspension based upon a substantiated allegation of abuse,
we would agree with the trial court that those consequences would
constitute a voluntary reduction in income under the guidelines. Absent
these additional facts, however, our holding is based upon Mother’s decision
to reduce her work load to four hours per week notwithstanding her ability
to secure the required CPSL clearances.



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Mother’s typical schedule, the discrepancy between Mother’s training, work

history, and wage rate and her current income is palpable.                      It is beyond

argument that Mother worked at least twenty hours per week while

managing an intact family or at least maintaining equally shared physical

custody of three children. Now that those constraints have been lifted, logic

would    dictate   that       Mother      has    additional    time    to   dedicate   to    her

employment.        Mother’s unqualified financial obligation towards her three

children is not negated by the strain of everyday life. Thus, for all of the

foregoing reasons, we find the the trial court did not abuse its discretion in

assessing     Mother      a    fulltime    employment          wage,    even   though       prior

circumstances, that are no longer applicable, dictated that she maintain a

part-time schedule. Mother’s claim fails.

        In sum, the certified record reveals that upon considering Mother’s

earning history, current earnings, and the prevailing economic conditions,

the trial court reasoned that Mother’s earning capacity should more

accurately reflect her earning potential rather than her actual income.                       As

the   trial   court’s     rationale       adressed       the   appropriate     considerations

enumerated in Rule 1910.16-2(d)(4) and was not the result of partiality or

ill-will, we cannot find a basis to disturb its conclusion.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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