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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.R.F., 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
D.W.F.,
Appellant No. 1310 MDA 2016
Appeal from the Order Entered July 26, 2016
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 11-20575
PACSES No. 252112708
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 28, 2017
D.W.F. (Father) appeals from the order of July 26, 2016, that
overruled his exceptions to the January 8, 2016 order that set his earning
capacity for child support purposes at $25.59 per hour in the context of
Father's fifth petition seeking modification of the amount he pays to L.R.F.
(Mother) for the support of their two children. We affirm.
The parties married in May of 1998 and separated in January of 2010.
They are the parents of two minor children: G.F. (born in March of 2000)
and S.F. (born in May of 2003), both of whom are in Mother's primary
custody. A bifurcated divorce was entered on November 17, 2014, but the
* Retired Senior Judge assigned to the Superior Court.
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economic claims remain pending. The trial court provided the following,
extensive factual and procedural history of this matter, stating:
This child support saga began when [Mother] filed a
divorce complaint on April 29, 2011, followed by a praecipe for a
hearing on her request for alimony pendente lite, on May 5,
2011. A hearing was held July 21, 2011, but because [Father]
(who at that time owned and operated his own business,
Automatic Sprinkler Supply, Inc.) did not provide sufficient
documentation (the most recent tax return available was that for
2008), an interim order was entered based on [Father's] paystub
(he paid himself a wage) and the matter was rescheduled.
[Mother] then filed a complaint for spousal support and, after
leaving the marital residence, a complaint for child support.
Further hearing was held October 17, 2011, but [Father] still did
not provide the documentation "necessary to validate his alleged
income from his business." A third hearing was held December
7, 2011, at which [Father] attempted to present a picture of his
business as being "so financially strapped that he is unable to
take even his paycheck from it." This attempt was rejected by
the hearing officer based on [Father's] testimony respecting
continued business expenses being incurred, certain "loan
repayments" being made by the business to [Father], and
[Father's] prior practice of using the loan repayments to lower
his W-2 income for purposes of college financial aid applications.
The hearing officer found [Father's] testimony lacking in
credibility and instead used [Father's] 2010 W-2 to set his
support obligation, in an Order dated December 14, 2011.
On February 22, 2012, [Father] petitioned for modification,
indicating that his business had significantly decreased. After a
hearing on May 1, 2012, however, the hearing officer found that
[Father] had presented nothing significantly different than what
he had presented in December 2011, again found him lacking in
credibility, and continued the support based on his 2010 W-2.
Exceptions to the hearing officer's order were denied.
On April 18, 2013, [Father] again petitioned for
modification, again alleging that his income had decreased. He
presented a 2012 personal income tax return which showed he
had a gross income of $46,453.00,1 but presented no financial
information for the business, no bank account statements and no
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credit card statements, even though these documents had been
requested. The hearing officer found that the tax return was not
credible, based on other information from which she concluded
that [Father] had falsified his 2011 tax return, and the lack of
supporting documentation. By Order dated July 3, 2013, the
support was continued based on the 2010 W-2.
'The 2010 W-2 showed a gross income of $80,787.22.
[Father's] May 20, 2014 petition for modification again
alleged that his income had decreased. At the hearing on that
petition, held July 14, 2014, following [Father's] testimony that
his business was failing, that he had no money, that he had
moved into the business property (from the foreclosed -upon
marital residence), that he had lost all of his employees and that
most of his customers now used the services of a former
employee, considering that [Father] had produced no financial
documents, general ledgers or business tax returns and had
testified that he was not looking for work, the hearing officer
found that he was intentionally limiting his income because of
the divorce litigation. By Order dated August 1, 2014, the
support was continued based on the 2010 W-2. Exceptions to
that Order were later withdrawn, as the parties agreed to
continue the Order in effect.
[Father's] December 17, 2014, petition for modification
took a different tactic. Rather than asserting reduced business
income, [Father] alleged that he had a new job, earning $15.25
per hour, less than the earning capacity previously set. In an
Order dated March 18, 2015, [Father] was found to be working
for his pastor through a business owned by his pastor, which
business was in direct competition with [Father's] previous
business, and was begun three weeks after the pastor had begun
working for [Father], prior to the change in roles. The hearing
officer again found that [Father] had intentionally reduced his
income and had made no effort to mitigate that reduction, but
agreed to review the support because it had been more than
three years since the earning capacity had been set and in this
Commonwealth, "a child support litigant is entitled to a review of
his or her case every three years whether or not the litigant is
alleging a material and substantial change in circumstances."
The hearing officer then set an earning capacity based on a
finding that [Father] had the following job skills: installation,
repair and inspection of sprinkler systems, managing a business,
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hiring and firing employees, creating and executing business
plans, scheduling work, providing estimates, engaging in
contract negotiations, issuing invoices, keeping track of
receivables, maintaining an inventory and paying bills. A
capacity of $25 per hour was assessed. Since there was no
explanation as to the source of this figure, however, in response
to exceptions, although upholding the hearing officer's
assessment of an earning capacity based on [Father's] job skills,
the court remanded the matter for further hearing, the purpose
of which was to hear evidence of what those skills are worth in
today's job market.
The most recent hearing in this matter was then held on
December 7, 2015, at which [Mother] presented the testimony
of a vocational evaluation expert, who opined that someone with
[Father's] set of job skills could expect to earn $25.59 per hour.
[Father] presented the testimony of a building inspector/senior
plans examiner who earns $48,000 per year, and his own
testimony, that he would not be able to work as a building
inspector as he does not have the required certifications. The
hearing officer found the testimony of the vocational evaluation
expert more relevant, and assessed an earning capacity based
on that expert's opinion. That decision was upheld on
exceptions and [Father] has now appealed.
Trial Court Opinion (TCO), 8/29/16, at 1-3. Specifically, the July 26, 2016
order from which Father now appeals, confirmed that Father's earning
capacity was $25.59 per hour. The July order also affirmed the January 8,
2016 order, which directed that the child support amount due was $908.49
per month plus $90.85 per month in arrears.'
' The January 8, 2016 order also provided that Father owed Mother $128.54
per month in alimony pendent lite plus $12.85 per month in arrears.
However, because a final decree in divorce has not been entered, "we do not
have jurisdiction to entertain an appeal from an order of spousal support...."
Portugal v. Portugal, 798 A.2d 246, 255 (Pa. Super. 2002).
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As a basis for its determination, the trial court explained in its opinion
that:
The gravamen of [Father's] complaints on appeal is that the
earning capacity assessed to him is not consistent with his
education, training, experience, health, earning history and
availability of jobs. To the contrary, however, the vocational
evaluation expert provided evidence of what a person earns if he
works in the same field as has [Father] for over twenty years,
and the capacity assessed is consistent with [Father's] earning
history (he actually has earned significantly more in the past).
As for availability of jobs, the evidence was more than sufficient
to support a finding that the sprinkler business is still out there,
but is simply being performed by the pastor's company rather
than [Father's] company. The court believes [Father]
intentionally transferred his customers to others, a former
employee and his pastor, arranged to work for the pastor at
$15.25 per hour, and then came into court seeking a reduction
of his support obligation. The assessment at $25.59 per hour is
actually significantly less than what the court believes [Father]
would still be earning if he had not orchestrated the ruse.
TCO at 3-4.
Father filed a timely appeal and a concise statement of errors
complained of on appeal. He now raises the following four issues for our
review:
[1.] Whether the trial court erred in assessing [Father] with a
theoretical earning capacity in determining his obligation for
child support[?]
[2.] Whether the trial court erred
in not assessing [Father] with
a realistic, practical earning capacity consistent with his
education, training, experience, health, earning history and
availability of jobs in determining his obligation for child
support[?]
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[3.] Whether the trial court erred in assessing [Father] an
earning capacity that went beyond the directive of the remand
order in determining his obligation for child support[?]
[4.] Whether the trial court erred in adopting the report of the
expert as the expert[']s valuation of capacity was not consistent
with [Pa.R.C.P.] 1910.16[-]2(d)(4) in determining Father's
obligation for child support[?]
Father's brief at 5.
Initially, we note that when reviewing a child support order, we are
guided by the following well -settled standard:
"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." Calabrese v. Calabrese, 452
Pa. Super. 497, 682 A.2d 393, 395 (1996). 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. Id. 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.
Depp v. Holland, 431 Pa. Super. 209, 636 A.2d 204, 205-06
(1994). See also Funk v. Funk, 376 Pa. Super. 76, 545 A.2d
326, 329 (1988). 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. Depp, 636 A.2d at 206.
McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (quoting Samii
v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004)).
All four of Father's issues center on the earning capacity assigned to
him by the trial court. Essentially, Father claims that Mother's vocational
expert based an earning capacity determination on theoretical, not realistic,
circumstances and that the expert did not consider the factors outlined in
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Rule 1910.16-2(d)(4). Father further contends that the hearing officer
exceeded the trial court's directive set forth in the remand order and failed
to determine an earning capacity based on what Father's skills are worth in
today's job market.
We begin addressing Father's claims of error by setting forth the
language contained in Rule 1910.16-2(d)(4), which addresses earning
capacity and states:
(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 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).
We also consider the following discussion in Morgan v. Morgan, 99
A.3d 554 (Pa. Super. 2014), which sheds light on the arguments raised in
this appeal:
There is no requirement in the Rule that the trial court must
adjust the earning capacity to reflect the "[a]ge, education,
training, health, work experience, earnings history and child care
responsibilities" of the party to which the earning capacity is
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being assigned; the Rule requires only that the trial court
consider these factors. See Pa.R.C.P. 1910-16.2(d)(4). ...
"[T]he 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) (citation
omitted). "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." Id. at 286.
Id. at 558.
In concluding that Father's issues have no merit, we rely on the trial
court's January 8, 2016 order that discussed the testimony provided at the
December 7, 2015 hearing by Mother's vocational expert, Mitchell Schmidt.
Mitchell Schmidt ... was established as an expert in the area of
vocational evaluation and estimates of earning capacity. He
provided his expert opinion that [Father] is capable of earning
$25.59 per hour. He arrived at this opinion by examining the
March 18, 2015 family court order, the transcript of the February
19, 2015 hearing and excerpts of the transcript from the
February 26, 2015 hearing and then performing a vocational
evaluation of available wage information from the Pennsylvania
Department of Labor and Industry. He did not interview
[Father]. Mr. Schmidt submitted a report dated November 15,
2015.... In that report, Mr. Schmidt details various occupations
for which he believes [Father] is qualified and also lists wage
data from the Williamsport, PA Metropolitan Statistical Area and
the State College, PA Metropolitan Statistical Area. Specifically,
he opine[d] that [Father's] skill set would best match the
occupations of building inspector, pipefitter and control valve
installer and repairer. He testified that this is his opinion
because in the past [Father] has actually performed the tasks
that one needs to perform in these three occupations. [Mr.
Schmidt] concludes the average hourly wage for an individual
with [Father's] skill set in the Williamsport, PA area is $21.87
and the average hourly wage for an individual with [Father's]
skill set in the State College, PA area is $29.36. He then
averages those together and conclude[d] that [Father] has an
earning capacity of $25.59 per hour.
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Trial Court Order (TC Order), 1/8/16, at 2-3 (footnotes omitted).
In that same order, the trial court discussed Father's testimony and
the testimony of Ronald Decker, "a retired senior plans examiner/building
codes official[,]" who was presented by Father. Id. at 3. Next, the trial
court explained the basis for its decision, stating:
Essentially, the parties have presented competing
evidence. [Mother] contends that [Father] has an earning
capacity consistent with the one found in the March, 2015 Family
Court order and [Father] contends through the presentation of
Mr. Decker's testimony that his earning capacity is somewhat
lower. A finding is made that the testimony of Mitchell Schmidt
is more relevant to this case. Mr. Decker testified to his
knowledge as a state certified building inspector. His testimony
focused on the multiple certifications possessed by one who
inspects buildings for the state. [Father], on the other hand,
testified that he has performed inspections of sprinkler systems
for many years, that he continues to work as a sprinkler system
inspector and that he is unaware that any certification for that
work is necessary. [Father] has not ever worked as a building
inspector certifying that a building meets or exceeds state codes
requirements. This is the work discussed by Mr. Decker.
Instead, [Father's] work history includes inspection of buildings
for safety and to determine whether repairs and/or upgrades are
needed. At the conclusion of his inspections he has never issued
a certification that the inspected property passes state codes.
Clearly, because [Father] has done this work for over twenty
years, inspections of commercial buildings are done for reasons
other than to obtain a certificate that the building passes state
codes requirements.
Mr. Schmidt's testimony evaluated not whether [Father]
can issue Pennsylvania codes certifications to building owners
but whether he possesses the knowledge and skill set necessary
to hold employment in certain areas, specifically as a building
inspector, a pipefitter, and as a control valve installer and
repairer, the three occupations which Mr. Schmidt testified most
closely mirror the skill set that [Father] has already been using
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for more than twenty years in his business. Although he did not
interview [Father], Mr. Schmidt was able to evaluate [Father's]
own words regarding his past experience and his skill set by
examining [Father's] testimony at the time of the hearing held
on February 19 and February 25, 2015.
Id. at 4-5. The trial court then discussed the specifics as to the average
earning capacity for someone working in these occupations in the geographic
areas where Father has worked in the past. The court concluded that "it is
appropriate to use the average of the Williamsport and State College wages
about which Mr. Schmidt testified." Id. at 6. Thus, the court set Father's
earning capacity at $25.59 per hour.
Our review of the record reveals that the trial court's findings and
resulting conclusions are supported by the record. Moreover, as directed in
the Morgan decision, the factors set forth in Rule 1910.16-2(d)(4) are to be
considered and, as factfinder, the court is required to make credibility
determinations with regard to the evidence presented. Simply stated, the
court's reliance on Mr. Schmidt's testimony was not a theoretical exercise;
rather, it was based on realistic circumstances that projected what Father's
earning capacity would be with his past experience and the worth of those
skills in the marketplace. The court did not abuse its discretion and,
accordingly, we conclude that Father's issues are without merit.
Order affirmed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 2/28/2017