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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINA L. PILEWSKI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY L. LEMON
Appellant No. 952 WDA 2014
Appeal from the Order May 13, 2014
In the Court of Common Pleas of Erie County
Domestic Relations at No(s): NS200301197
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 11, 2015
Appellant, Gary L. Lemon, appeals from the order entered by the
Honorable Elizabeth K. Kelly, Court of Common Pleas of Erie County, which
denied his petition to modify an existing child support order, finding that he
did not meet his burden to establish that he attempted to mitigate his lost
income after his termination for cause. We affirm.
Father has a 28-year-old disabled son to whom he is under an
obligation to provide monthly support. Father worked as a track inspector
for CSX Corporation for many years. On March 25, 2013, CSX terminated
Father’s employment for cause. In April 2013, Father moved to decrease his
monthly child support obligation based on his job loss. After a hearing, the
trial court issued an order assessing Father’s monthly net income for support
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purposes at $5,283.72 and keeping the monthly support obligation at
$804.16, plus arrears.
On December 24, 2013, Father filed another petition seeking
modification of his child support obligation, reasoning that he was employed
in a minimum wage, part-time position and that he had gone to jail for a
period of eight months1 (a result of a DUI conviction). Following a support
conference, an interim order was entered assessing Father’s monthly income
at $4,938.84 per month and keeping the monthly support obligation at
$804.16, plus arrears. Father filed a demand for a de novo hearing. The
trial court held a hearing at which time it permitted Father to argue once
again his termination for cause as the primary reason to reduce his assessed
earning capacity and his monthly support obligation. After the hearing, the
trial court entered an order making the interim order final. This timely
appeal followed.
On appeal, Father argues that the trial court erred in finding that he
did not meet his burden to establish that he attempted to mitigate his lost
income and, as a result, incorrectly assessed his earned income.
We review the propriety of a support order for an abuse of discretion.
See Ewing v. Ewing, 843 A.2d 1282, 1285 (Pa. Super. 2004).
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1
Courts will not reward criminal behavior by modifying an existing support
order because of imprisonment. See Novinger v. Smith, 880 A.2d 1255,
1257 (Pa. Super. 2005).
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“[W]here a parent is fired for cause, in order for the court to consider
reducing the parent’s child support obligation under Rule 1910.16-2(d)(1),
the parent must establish that he or she attempted to mitigate lost income.”
Id., at 1288. A panel of this Court has explained the assessment of earning
capacity:
Pa.R.C.P. 1910.16–2(d) 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 generally will be no effect on the support
obligation.
....
(4) 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.
Under Rule 1910.16–2(d)(1), if a party voluntarily accepts a
lower paying job, there generally will be no effect on the support
obligation. A party may not voluntarily reduce his or her income
in an attempt to circumvent his support obligation. Where a
parent is fired for cause, however, the court can consider
reducing the parent’s child support obligation under Rule
1910.16(2)(d)(1) if the parent establishes that he or she
attempted to mitigate lost income.
Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006) (internal case
citations omitted).
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At the hearing, Father testified that he has attempted to secure other
employment “numerous times” and offered into evidence a handwritten
sheet with twenty employers’ names, some with the type of position applied
for, and the date of application. N.T., Hearing, 5/12/14, at 7; Exhibit “A.”
Only one was with a railroad. Father applied for jobs in August, September,
and December 2013 and in February, March, and April of 2014. Father
described the list as
a copy that I made that – of the different searches I’ve done,
different on-line applications I’ve done, a couple different job
fairs I’ve gone to. Just every attempt. There’s probably some
more in there that I don’t have that I, you know, just plain
forgot, because I wasn’t documenting it at the time.
N.T., Hearing, 5/12/14, at 7. Father provided no further detail as to his job
search.
The trial court found that Father did not meet his burden of
establishing that he attempted to mitigate his lost income. The trial court
explains as follows:
Prior to his termination, Father, for more than 36 years, worked
a full-time job as a foreman at a company where he made
$29.01 per hour, plus overtime. Now, he does janitorial work for
twelve and a half hours each week, making only $7.25 per hour.
Father indicated that he is pursuing full-time employment
opportunities. Specifically, he testified to doing numerous
searches, submitting on-line applications, and attending job
fairs. In support of his testimony, he submitted a hand-written
document listing 20 items purportedly showing his efforts. The
[c]ourt questions, however, the sincerity of Father’s efforts.
Father’s employment search list does nothing more than provide
the court with company names, a few of which include job titles
for which Father presumably applied. The list does not, for the
most part, detail the type of employment sought, list the salaries
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for the positions, or even whether or not the employers actually
had open positions for which father was qualified. …
Accordingly, Father did not sufficiently satisfy his burden of
establishing that a reduction is warranted based on his efforts to
mitigate the lost income.
Trial Court Opinion, 8/7/14, at 6-7.
Based on the handwritten exhibit and the rather scant testimony
provided by Father we cannot find that the trial court abused its discretion.
Only eleven of the jobs listed in the exhibit have positions identified; the
remaining simply have the names of companies. Father applied to only one
railroad.2 As the trial court notes in its opinion, we have no concrete
information about the positions or the salaries. Father had the opportunity
to provide the trial court with this information at the hearing, but, for
whatever reason, failed to elaborate on his job search. Compare Baehr v.
Baehr, 889 A.2d 1240 (Pa. Super. 2005) (finding father did not make a
reasonable effort to find employment commensurate with his ability where
his job search consisted of simply contacting various companies to inquire
about employment opportunities and posting his resume on Monster.com.),
with Grigoruk (finding mother acted responsibly and in good faith to
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2
In his brief, Father makes much of the fact that he lost his driver’s license
and how that effectively forecloses his working for a railroad as a track
inspector. See Appellant’s Brief, at 5-6. It was simply noted at the hearing
that he lost his license; Father did not offer any explanation about how that
affected his job search.
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mitigate her earning loss where she conducted, albeit unsuccessfully, a six
month job search for positions exclusively within her experience level).
Essentially, the trial court did not believe Father’s testimony. We
cannot disturb this finding. See Doherty v. Doherty, 859 A.2d 811, (Pa.
Super. 2004) (“[A] reviewing court does not weigh the evidence or
determine credibility as these are functions of the trial court.”).
There is no bar to Father filing at some future date another petition
seeking a modification of his earning capacity and monthly support
obligation. “The person should not have to pay forever for losing
employment. At some point, the courts should take another look at his or
her true earning capacity.” Novinger v. Smith, 880 A.2d 1255, 1257 (Pa.
Super. 2005). Here, Father filed the instant petition 275 days after his
termination and woefully failed to meet his burden that he attempted to
mitigate his lost income.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
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