J-A16003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 NOREEN S. ROBBINS                       :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RUSSELL W. ROBBINS                      :
                                         :
                     Appellant           :    No. 1743 MDA 2018

              Appeal from the Order Entered October 1, 2018
   In the Court of Common Pleas of Snyder County Domestic Relations at
                           No(s): 2017-00045,
                         PACSES No. 572116488


BEFORE:    LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                            FILED JUNE 21, 2019

      Russell W. Robbins (Father) appeals from the trial court’s order, entered

in the Court of Common Pleas of Snyder County, assigning Appellee Noreen

S. Robbins (Mother) an earning capacity of $9.50 per hour for a 40-hour work

week in this support action. After careful review, we affirm.

      A prior panel of our Court set forth the relevant facts underlying this

appeal as follows:

      On April 21, 2017, [Mother] filed a complaint for spousal support
      and child support against [Father]. A support conference was held
      on May 24, 2017, at which time [Mother] was not employed. At
      the conference, the hearing officer assigned [Mother] to an
      earning capacity to $16 per hour based on upon her prior
      employment as a certified medical coder. The trial court entered
      an interim support order for the parties’ three minor children,
      using [Father’s] actual earnings and [Mother’s] $16-per-hour
      earning capacity.

      [Mother] filed a timely appeal of the interim order to the Court of
      Common Pleas, and the trial court conducted a de novo hearing
____________________________________
* Former Justice specially assigned to the Superior Court.
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      on August 18, 2017. The only item at issue was [Mother’s]
      earning capacity. [Mother] testified that she was fifty-five years
      old and had a bachelor’s degree in elementary education, a
      master’s degree in reading education, and a certificate as a
      professional medical coder. Most recently, [Mother] worked as a
      coder from 2008 to 2010 for UPMC and earned approximately $16
      per hour.

      [Mother] testified that after she gave birth to the couple’s triplets
      ([C]hildren) in 2010, she did not work because of the cost of
      childcare. She stated that she and [Father] agreed that she would
      stay at home in part because of the cost of daycare. N.T.,
      8/18/17, at 8. [Mother] has been a stay-at-home mother for the
      entirety of [C]hildren’s lives. At the time of the de novo hearing,
      [C]hildren were about to start second grade. For these reasons,
      [Mother] requested that she be imputed an earning capacity of
      minimum wage for a full-time work week. [Id.] at 31. [Father]
      countered that he did not recall agreeing that [Mother] would
      remain at home after the first four to five years of [C]hildren’s
      lives. Id. at 27.


      The trial court determined that [Mother’s] earning capacity was
      $16 per hour over a forty-hour work week. The court used
      [Mother’s] most recent employment information to establish her
      earning capacity. Of relevance to this appeal, the court found that
      it would be inappropriate to assess [Mother’s] earning capacity at
      the minimum wage given her education and certification as a
      medical coder and that [Mother’s] efforts to obtain employment
      were “half-hearted.”

N.S.R. v. R.E.R., No. 1374 MDA 2017 (Pa. Super filed April 11, 2018)

(unpublished memorandum).

      Mother filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, claiming that

the trial court abused its discretion in “holding [her] to an earning capacity of

$16-per-hour for a job she held seven (7) years earlier and prior to the parties’

agreement that [she] would remain in the home to care for [C]hildren.”



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Mother’s Statement of [Errors] Complained of on Appeal, 9/7/17. On appeal,

our Court affirmed the trial court’s earning capacity determination, concluding

that “[t]he record reveals that sufficient evidence was adduced to support the

trial court’s findings of fact and credibility determinations regarding the lack

of an agreement between the parties [concerning Mother being a stay-at-

home mom for seven years] and [Mother’s] half-hearted efforts to obtain

employment commensurate with her earning capacity.” Id. at 6.

      On January 18, 2018, Mother filed a petition for modification of child

support based on her allegation that there was a material and substantial

change of circumstances regarding her employment at the local elementary

school. In her petition, Mother claimed that her income for support purposes

should be her actual earnings of $9.50 per hour for a 25-hour work week. On

September 21, 2018, the trial court held a hearing on Mother’s petition,

incorporating the hearing notes from the August 18, 2017 de novo hearing.

At the time of the hearing, Mother was employed as a utility aide during the

school year by the Selingsgrove School District, where her hourly wage is

$9.50.   She typically works 25 hours a week and is paid biweekly.           On

September 25, 2018, the Honorable Michael Hudock entered an order finding

that Mother should be assigned an earning capacity of $9.50 an hour at a 40-




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hour work week, effective January 18, 2018. Father filed a timely notice of

appeal1 and court-ordered Rule 1925(b) statement.

       Father raises the following issue for our consideration: Whether the trial

court erred as a matter of law and [abused] its discretion in not applying the

law of the case established by . . . [J]udge Hudock, affirmed by the Superior

Court[,] and, further, in finding that there was a substantial change in

circumstances based on [Mother’s] testimony[.] Appellant’s Brief, at 5.

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

Arbet v. Arbet, 863 A.2d 34, 39 (Pa. Super. 2004) (citation omitted).

       Generally there is no change to the support obligation following a

voluntary reduction of income:

       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.


____________________________________________


1 On October 1, 2018, the court entered an interim allocated support order
reflecting Mother’s new earning capacity.


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Pa.R.C.P. 1910.16-2(d)(1). However, when a parent has not voluntarily

reduced his or her income to “circumvent his [or her] support obligation” the

court “can consider reducing the parent’s child support obligation.”        See

Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006) (stating court

may reduce support obligation when parent is fired for cause and has

attempted to mitigate lost income); see also Kersey v. Jefferson, 791 A.2d

419, 423 (Pa. Super. 2002) (holding that in order to modify existing support

order to reflect reduced income, parent must first demonstrate change was

not made to circumvent support obligation).

     “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.”   See Pa.R.C.P. 1910.16-2(d)(4).        The factors

considered in determining an individual’s earning capacity are “[a]ge,

education, training, health, work experience, earnings history and child care

responsibilities.” Id. (emphasis added). Moreover:

     [i]n 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)(2).




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      At the modification hearing, Mother testified that she had “applied for

everything that [she] possibly could” and that to her knowledge she had

“applied for every medical coding position that’s been available since August

the 18th of 2017.” N.T. Support Modification Hearing, 9/21/18, at 8. Mother

also testified that since August 18, 2017, she had not been offered any

positions as a medical coder. Id. at 9. As a result, Mother returned to her

per diem position at the elementary school in August 2017, where she makes

$9.50 per hour and works approximately 25 hours per week. Mother also

testified that she is currently trying to obtain a full-time position as an income

maintenance caseworker with Dauphin County, and has taken an online Civil

Service exam for that position. Id. at 9, 27.

      At the time of the hearing, Mother testified that she continues to take

Children to and from school daily, drives them to their multiple sports’

practices and extracurricular activities during the week, takes them to Sunday

School, and drives them to the majority of their doctor and dentist

appointments. Id. at 22, 26. Since the last support hearing, Father had

asked Mother to exchange Children at 5:00 PM, rather than the initially agreed

upon time of 4:30 PM – resulting in Mother having Children an extra half hour

every week.

      In rendering its decision, the court specifically found that Mother had

“exerted substantial good faith efforts to find employment.”            Pa.R.C.P.

1910.16-2(d)(4).    Moreover, in determining what an appropriate earning

capacity is for Mother, the court properly considered her child care obligations

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and the cost that would be imputed to the parties were Mother to obtain a

full-time job which would necessitate Children being placed in pre- and post-

school care.   See id.     The trial court also acknowledged that Mother’s

“accreditation [in medical coding] is in a technical field where the rate of

change is lightning speed. . . . I can’t imagine she’s as desirable as a coding

employee as she would have been eight years ago [when she last held a

position in the field.]”   N.T. Modification Hearing, 9/21/18, at 47-48.       In

concluding that Mother’s earning capacity should be reduced to $9.50 rather

than $16.00 per hour, the court made the following statement on the record:

      I understand that [there is evidence that she had an earning
      capacity of $16/hour, but] that’s eight years old in a technical field
      and she’s only in this position because she followed her spouse in
      his work moves. So I’m going to make this order which is going
      to direct that the [c]ourt does find, and I’m relying very much on
      [Rule] 1910.16-(d)(4), which I’ve cited earlier that there really is
      no evidence here that she’s willfully failed to obtain or maintain
      appropriate employment.

      I did mention the fact that she’s in this position only because she
      moved I think it was four times in seven years in order to
      accommodate job changes on the part of [Father]. It’s a different
      world out here. She’s a person who is 57 years old, not that that
      throws you out of the marketplace[,] but it can make you a less
      desirable employee when you’re competing against young people
      in the technical fields.

      I find that based on her age, education, training, health, work
      experience, earning history, and child care responsibilities, I’m
      considering those factors and I find that her earning capacity has
      not been shown to be currently $16 an hour for a 40-hour per
      week job[,] but I think that her job as a teacher’s elementary
      school aide is way below her abilities and skills and if she were
      looking in a different area, she might do better.

      So in the exercise – I also feel that minimum wage is sure, she
      could get a job at minimum wage[,] but I think she’s well-qualified

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      to do better than that. So what I’m going to do is I’m going to
      make a finding that she should be assigned because she’s
      demonstrated she can get a job at $9.50 an hour. Granted, it’s
      only 25 hours [a week,] but that to me is an indicator of what her
      potential is. I’m going to assign her a wage of $9.50 an hour for
      a 40-hour week. That’s going to be the earnings to be assigned
      to her for purposes of calculating the child support.

Id. at 51-52.

      Based on our review of the record, we find that that trial court properly

considered the requirements of Rule 1910.16-2(d), weighed the record

evidence, and assessed Mother’s credibility at the September 21, 2018

modification hearing. See Morgan v. Morgan, 99 A.2d 554, 559 (Pa. Super.

2014) (“[T]he trial court, as the finder of fact, is entitled to weigh the evidence

and assess the credibility of witnesses.”) (citation omitted); see also

Krankowski v. O’Neil, 928 A.3d 284, 286 (Pa. Super 2007) (“A support order

will not be disturbed on appeal unless the trial court failed to consider properly

the requirements of the Rules of Civil Procedure Governing Actions for

Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying these

Rules.”). Accordingly, we find no abuse of the court’s discretion in assigning

Mother an earning capacity of $9.50/hour based on a 40-hour work week.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/21/2019


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