J-A23027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIC J. PIKIEWICZ, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICHELE L. TIMMERS,
Appellee No. 1867 WDA 2013
Appeal from the Order entered October 29, 2013,
in the Court of Common Pleas of Erie County,
Domestic Relations, at No(s): No. NS201300791
BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 26, 2014
affirm.
The parties are the parents of one minor child, born in October of
2002. The trial court summarized the case history as follows:
On December 18, 2002, [Mother] filed a Complaint for
Support [in which she requested spousal and child
support]. Following a de novo hearing, the [trial court]
issued a November 3, 2003 Order assessing Mother with a
monthly net income/earning capacity of $1,982.40, Father
with a net income/earning capacity of $4,079.30[,] and
month and his spousal obligation at $411.42 per month.
Throughout the pendency of this proceeding, there were
multiple petitions for modification of support, resulting in
recent order was a February 25, 2010 Order of Court
J-A23027-14
which assessed Mother with a monthly net income of
$2,724.05, Father with a monthly net income of
$589.77 plus arrears.
On May 29, 2013, Father filed a Petition for Modification
of an existing Support Order requesting that his support
29, 2013, Father filed a Complaint for Support against
Mother.
Following a June 27, 2013 support conference, a July 1,
2013 Order [was entered] assessing Mother with a
monthly net income of $2,849.89, Father with a monthly
child support obligation at $450.00 plus arrears. As
Fact, the order assessed Father with an earning capacity
based upon his 2012 wages, rather than his monthly
decrease in income. Moreover, as stated in the order, the
order allows a downward deviation from the guideline
amount due to the shared custody by the parties of the
child. A July 1, 2013 Order was also issued dismissing
ome/earning capacity greater than
Father filed a Demand for Court Hearing with regard to
both orders. [With regard to his modification petition,]
current retirement income which would result in an award
of child support for [Father]. [With regard to his complaint
Following an October 29, 2013 de novo hearing, this
Court issued orders of the same date making each of the
July 1, 2013 Orders final orders.
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Trial Court Opinion, 1/17/14, at 1-3 (citations omitted). This timely appeal
followed. Both Father and the trial court have complied with Pa.R.A.P. 1925.
Father filed his modification petition and his complaint for support
against Mother at different docket numbers. As noted by the trial court,
Father filed a notice of appeal from only the docket number listing his
complaint for support against Mother. The trial court opined:
is Pa.R.A.P. 1925(b) statement]
do not make sense in terms of the order dismissing his
Complaint, it appears that Father intended to appeal this
an earning capacity of $5,343.39[,] and setting his
monthly [child] support obligation at $450.00 plus arrears.
allegations of error.
Trial Court Opinion, 1/17/14, at 4 (citations omitted).
retirement
income was at issue in both dockets, we find no jurisdictional impediment to
appellate review. See Guy M. Cooper, Inc. v. East Penn School District,
894 A.2d 179, 181-82 (Pa. Cmwlth. 2006) (discussing Pennsylvania
ssue of whether an incorrect date or incorrect
see
also Pa.R.A.P. 105(a) (providing that rules of appellate procedure should be
construed liberally).
Father raises the following issues:
I. The Trial Court erred and abused its discretion in
ordering [Father] to pay more than 50% of the minor
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2013 when it declared the Order of July 1, 2013 as final.
II. The Trial Court erred and abused its discretion by failing
incomes and the needs of the child in calculating support in
its Order of October 29, 2013 when it declared the Order
of July 1, 2013 as final.
earning capacity rather than his actual retirement income to determine his
child support obligation, we address them together.
Our standard of review is well-settled:
When evaluating a support order, this Court may only
cannot be sustained on any valid ground. We will not
interfere with the broad discretion afforded the trial court
absent an abuse of 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
interests.
Sirio v. Sirio, 951 A.2d 1188, 1192-93 (Pa. Super. 2008) (citation omitted).
When a party petitions for modification of an existing support order, he
. 1910.19(a). It
of circumstances has occurred since the entry of the previous support order.
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Plunkard v. McConnell
determination of whether such a change occurred in the circumstances of
Id.
Berry v. Berry, 898 A.2d 1100, 1104 (Pa.
actual earnings. Reinert v. Reinert, 926 A.2d 539 (Pa. Super. 2007). Rule
1910.16-2(d)(4) of the Pennsylvania Rules of Civil Procedure provides the
domestic relations hearing officer and/or trial court with the methodology to
determine whether a party should be assessed an earning capacity. The
subsection provides:
(d) Reduced or Fluctuating Income.
(1) Voluntary Reduction of Income. When either party
voluntarily assumes a lower paying job, quits a job, leaves
employment, changes occupations or changes employment
status to pursue an education, or is fired for cause, there
will be generally no effect on the support obligation.
(2) Involuntary Reduction of, and Fluctuation in,
Income. No adjustments in support payments will be
made for normal fluctuations in earnings. However,
appropriate adjustments will be made for substantial
continuing involuntary decreases in income, including but
not limited to the result of illness, lay-off, termination, job
elimination or some other employment situation over
which the party has no control unless the trier of fact finds
that such a reduction in income was willfully undertaken in
an attempt to avoid or reduce the support obligation.
(3) Seasonal Employees. Support orders for seasonal
employees, such as construction workers, shall ordinarily
be based upon a yearly average.
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(4) Earning Capacity. If the trier of fact determines
that a party to a support action has willfully failed to obtain
or maintain employment, the trier of fact may impute to
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). Following a voluntary reduction in income, a
parent seeking a support modification must establish that the change in
income was not made in order to avoid child support and that a reduction in
mitigate the lost income. Ney v. Ney, 917 A.2d 863, 866 (Pa. Super.
2007).
obligation due to his retirement, the trial court reasoned as follows:
Voluntary retirement does not entitle a support obligor
to a reduction in his support obligation; it merely allows
him the opportunity to demonstrate a need for reduction.
See Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super.
2010).
***
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Father testified that he was laid off from his job on
February 28, 2012. The February 28, 2012 letter provided
by Father in support of his position provides:
Key Lakes, Inc. and American Maritime Officers have
agreed upon a new contract that will take effect
March 1, 2012. This new contract eliminates the
seniority provision and reduces the employee roster
to those who are permanently assigned to a specific
vessel. Regretfully, you could not be retained in a
permanent position at this initial fit out. You should
consider yourself eligible for employment at Key
Lakes, Inc., and we urge you to register to [a] ship
as jobs will become available.
The permanent assignments were made through a
process that was discussed with the union and the
final appointment list was approved by the AMO.
See February 28, 2012 Letter from Captain William C.
Peterson, General Manager, to Eric Pikiewicz. In reality,
Father did not lose his employment. To the contrary,
Father was simply unable to maintain a permanent
assignment on a ship in the Great Lakes. Work remained
available to Father through his contract with American
Maritime Officers. In fact, after February of 2012, Father
worked vessels that took him off of the Great Lakes.
Father did not, however, want to work jobs that took him
off of the Great Lakes and, therefore, on June 1, 2013,
Father, at 44 years of age, retired. Accordingly, this Court
determined that Father voluntarily retired to avoid having
to take jobs which took him off of the Great Lakes.
Prior to retirement, Father worked in the maritime
transportation industry in excess of twenty years. When
Father retired, he received a $1,660.84 monthly pension, a
substantial reduction from his $5,343.39 monthly net
income in 2012. As a result, it is clear that Father
voluntarily reduced his income.
Finding that Father voluntarily reduced his income, the
Court considered whether the change in income was made
mitigation efforts warranted a reduction in his [child
support obligation]. See Kersey v. Jefferson, 791 A.2d
419 (Pa. Super. 2002); see also Grimes v. Grimes, 596
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A.2d 240 (Pa. Super. 1991). As discussed above, Father
retired in order to avoid working off of the Great Lakes,
not to avoid child support. Father has not, however,
engaged in any mitigation efforts to minimize the impact of
his reduction in income. To the contrary, Father testified
that he has no plans to obtain steady employment;
and make a living on the farm.
Considering that Father is only 44 years old, that there
is no evidence that Father has any health problems, that
he has in excess of 20 years [of] experience in the
maritime transportation industry, and that jobs were
available in his line of work, although he voluntarily chose
not to continue working them, the Court assessed Father
with an earning capacity reflecting his work in maritime
custody arrangement, the Court allowed a downward
deviation in
are without merit.
Trial Court Opinion, 1/17/14, at 4-6.
Our review of the record and pertinent case law supports the trial
Smedley v. Lowman, 2 A.3d 1226 (Pa. Super.
2010), this Court held that the trial court did not abuse its discretion by
assigning a father an earning capacity greater than his pension for child
support purposes, when the father voluntarily retired two years after
accumulating his fully vested pension benefits, while in good health and
fifty-two years of age. Id. at 1227. In so holding, we stated that the
-two and receive a pension
representing only half of his former salary is a voluntary reduction of income
as indicated in Rule 1910.16- Id. at 1229. Additionally, we opined
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service in the Waynesboro Police Department, he also had the interests of
his seven-year-old child to consider. As stated by this Court in [Grimes v.
Grimes
Id.
The facts in Smedley are similar to the facts before us. In both cases,
neither father indicated a willingness to supplement his retirement income.
While the trial court in Smedley affirmed the assignment of an earning
capacity equivalent to a part-time job, id., our review of the record supports
the trial co
so that he could retire and spend more time with his son. Thus, the trial
earnings.
ary are unavailing. He first asserts
that the trial court abused its discretion by ordering him to pay child support
support the trial
economic analysis or need based reasoning why said support order should
be maintained in light of the new equal custody order . . . and subsequent
schooling order Id.
Our review of the record indicates that the support guidelines were
properly applied in this case, and that the trial court deviated downward in
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claim.
determination that he has not continued to seek employment after retiring,
we note that issues of credibility which are supported by the record cannot
be disturbed on appeal. See Doherty v. Doherty, 859 A.2d 811, 812 (Pa.
Super. 2004) (explaining that matters of credibility are solely within the
10.
Finally, Father argues that the trial court abused its discretion by
ther,
Id. Father
Id. at 11.
divorce proceedings in 2005, see N.T., 10/2
Grimes, supra.
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earning capacity to Father given his voluntary retirement, as well as the
deviation downward from the applicable guideline amount given the current
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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