J-A05040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEGAN S. RODGERS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RYAN J. MURPHY,
Appellant No. 2018 EDA 2014
Appeal from the Order Entered June 11, 2014,
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): DR NO. 13-09976 PACSES NO. 945114108
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 31, 2015
Ryan J. Murphy (“Father”) appeals from the order setting the amount
of monthly child support he is obligated to pay to Megan S. Rodgers
(“Mother”). We affirm.
We summarize the facts of this case as follows. Mother and Father
married in April of 2011. Thereafter, Mother gave birth to Son. Mother and
Father separated in February of 2013. In July of 2013, Mother filed for
divorce. On July 22, 2013, Mother filed a complaint for child support.
A hearing was held before a Master on December 9, 2013.1 On
April 4, 2014, the Master issued a proposed order of child support. The
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1
At the time of the hearing, Mother was thirty-two years old, possessed a
master’s degree, was employed as an autistic support teacher, and lived
(Footnote Continued Next Page)
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Master estimated Father’s earning capacity to be $30,000.00 per year, and
proposed that Father pay Mother $741.00 per month for support, plus
$34.00 per month for arrears, for a total child support payment of $775.00
per month. That amount also included a contribution by Father towards the
total sum of $245.00 that Mother spent for weekly childcare expenses at a
daycare facility. Father timely filed exceptions to the proposed order. The
trial court held argument on Father’s exceptions, relied on the Master’s
findings of credibility, and denied Father’s exceptions. Father filed this
timely appeal. Father and the trial court complied with the requirements of
Pa.R.A.P. 1925.
Father presents the following issues for our review:
1. Did the Trial Court err in confirming the Master’s assignment
to Father of an earning capacity of $30,000.00 per year, as that
earning capacity was inconsistent with his earnings history, his
education and current and recent income experience, and
disregarded his efforts at obtaining higher-paying full-time
employment, which were limited by his familial responsibilities to
his ailing father, and the potential for higher earnings with the
company in the future?
2. Did the Trial Court err in confirming the Master’s acceptance
and allocation of the childcare expense of $245.00 per week, for
a choice of daycare on which Father was not consulted and
where Father could provide alternate and far less expensive
childcare, and the child primarily resides with Mother and her
parents who, with Father and Father’s mother, had previously
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(Footnote Continued)
with Son at the home of Mother’s parents. Father was thirty-nine years old,
had a high school diploma, had served a few years in the United States
military, was employed as a taxi driver, and lived in an apartment with his
mother.
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shared childcare responsibilities particularly where the expense
constitutes [an] unreasonable burden on Father?
3. Did the Trial Court and the Master err in failing to consider
that, while Father rented an apartment and financially assisted
his elderly mother who resided with him, Mother lives with her
parents in their home and has no expenses with regard to rent,
maintenance or utilities and hence deviate from the guideline
support as provided by the Rules?
Father’s Brief at 2-3.
Father first argues that the trial court erred in confirming the Master’s
assignment of a $30,000.00 annual earning capacity to Father. Father
claims that the earning capacity attributed to him is inconsistent with his
recent earnings history, education, training and income experience.
We address this issue mindful of the following standard of review:
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 the
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.
R.C. v. J.S., 957 A.2d 759, 761 (Pa. Super. 2008) (quoting Belcher v.
Belcher, 887 A.2d 253 (Pa. Super. 2005)) (citations and quotation marks
omitted). A finding of an abuse of discretion is not lightly made but must be
based only upon a showing of clear and convincing evidence. Christianson
v. Ely, 838 A.2d 630, 634 (Pa. 2003).
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[T]he duty to support one’s child is absolute, and the
purpose of child support is to promote the child’s best interests.
The principal goal in child support matters is to serve the best
interests of the child through provision of reasonable expenses.
The duty of child support, as every other duty encompassed in
the role of parenthood, is the equal responsibility of both mother
and father. That duty is absolute.
R.C., 957 A.2d at 763 (citations and quotation marks omitted).
In Pennsylvania, an award of child support is based upon the Child
Support Guidelines promulgated by our Supreme Court. The guidelines were
enacted to ensure “that persons similarly situated shall be treated similarly.”
23 Pa.C.S. § 4322(a). “In determining the . . . ability of the obligor to
provide support, the guidelines shall place primary emphasis on the net
incomes and earning capacities of the parties, with allowable deviations for
unusual needs, extraordinary expenses and other factors, such as the
parties’ assets, as warrant special attention.” Id.
A person’s earning capacity is defined not as the amount which the
person could theoretically earn, but 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, 614-615 (Pa. Super. 2000). This Court has held that where a parent
has not voluntarily reduced income to avoid more lucrative career
opportunities, but has consistently performed a lower paying job from before
the birth of a child, the trial court did not abuse its discretion in calculating
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earning capacity based upon the lower paying job. Dennis v. Whitney, 844
A.2d 1267, 1270 (Pa. Super. 2004).
The trial court offered the following analysis pertinent to Father’s claim
regarding the assignment of his earning capacity:
[Father] contends that the trial court erred in confirming the
Master’s assignment of an earning capacity of $30,000 per year
to [Father]. . . . The assessment of an earning capacity in
support matters is governed by Pa.R.C.P. 1910.16-2(d)(4),
which provides that, “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.” The Rule
further provides that the factors to be considered in determining
an earning capacity are “age, education, training, health, work
experience, earnings history and child care responsibilities.” Id.
In the instant case, the Master took special note in her
Report of the fact that [Father] has been “unable to maintain
long term employment in the various fields that he has
experience since 2010.” (See Report of Master in Support for
child support, p. 6), (“Report for child support”). Accordingly,
the Master was not convinced “that [Father] is diligently working
towards finding appropriate and consistent employment and
instead is looking for opportunities that will afford him with large
pay-outs, status or the ability to be his own boss.” (See Report
for child support, p. 6).
Having made the determination that [Father] willfully
failed to obtain appropriate employment, the Master next took
into consideration the relevant factors pursuant to Pa.R.C.P.
1910.16-2(d)(4) in order to determine an earning capacity.
Given that [Father] is thirty-nine years old and in good health,
the Master took into consideration [Father’s] various jobs, the
longest having lasted five or six years when he was employed in
the mortgage finance industry in Arizona in 2003 (N.T.[,
12/9/13,] at 74, 77-78), and his employment for an estate
service as a contractor doing clean outs for one and one-half to
two years. (See Report for child support, p. 5) (N.T. at 38-39).
At the time of the hearing, [Father] had been employed as an
independent contractor for a limousine service for six (6) weeks,
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but had also interviewed for a job with a commercial lending
institution and had been offered a sales management job. (See
Report for child support, p. 5). The Master noted in her Report
that when questioned about the job offer in sales management,
[Father] did not know the name of the company or the salary
range for the job. (See Report for child support, p. 5), (N.T. at
74-76). The only income information provided by [Father] was
his 2012 federal tax return which showed W-2 wages of $10,577
while employed as an assistant to a real estate agent[.] (See
Ex. H-2 to Report for child support), (N.T. at 71-72). The Master
took note of the fact that [Father] stated that he had additional
income in 2012 from his work with Dan Donohue Estate Service,
but that this income was not reflected on his 2012 tax return as
he was paid under the table on a cash basis. (Report for child
support, p. 5), (N.T. at 57, 71-72). Based on the inconsistencies
of [Father’s] testimony and the evidence of record of [Father’s]
employment history, the Master arrived at an earning capacity
assessment of $30,000 annually or $576.92 per week.
We find the Master’s determination that [Father] has
willfully failed to obtain appropriate employment and the
Master’s assessment of an earning capacity of $30,000 annually
for [Father] to be supported by the record. The Master
specifically determined that [Father] lacked credibility with
regard to his willingness to seek employment commensurate
with his job experience. This court will not disturb the credibility
determination of the Master who had the opportunity to observe
the demeanor of the parties and where the record provides
ample support. Further, we find the earning capacity assessed
by the Master to be within a range that [Father] could
realistically earn as it is based on his past work experience. A
review of the record of the Master’s hearing shows that [Father]
earned $500 to $800 a week working in his past job for Dan
Donohue Estate Services[.] (N.T. at 37). He testified that he
had earned a total of $5,665.72 for a six week period at his
current job as a limousine driver[.] (Id. at 61-62) (See also
Exhibit H-1, Report for child support). In 2003, he had earned
$5000 to $6000 per month working for Wells Fargo as a
mortgage loan officer[.] (N.T. at 66-67). In spite of the fact
that [Father] was less than candid about his past and current
employment ventures, this Court finds that the Master did not
err in her assessment of [Father’s] earning capacity.
Trial Court Opinion, 8/22/14, at 5-8.
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Our review of the certified record reflects ample support for the
Master’s and the trial court’s ultimate determination of a $30,000.00 earning
capacity for Father. Indeed, based upon Father’s previous earnings and
work experience, the assignment of a $30,000.00 earning capacity to Father
is conservative. Therefore, the trial court did not abuse its discretion in this
regard. Accordingly, Father’s contrary claim lacks merit.
In his second issue, Father argues that the Master and the trial court
erred in accepting, without sufficient documentation, Mother’s claim that she
expends a total of $245.00 per week in childcare expense. Father further
contends that Mother enrolled Child in daycare without consulting Father or
obtaining his consent, alleging that family members could provide daycare
for several days per week at no cost.
Again, we observe that our review is limited to ascertaining whether
there is sufficient evidence to sustain the trial court’s order and whether
there has been an abuse of discretion. Mooney v. Doutt, 766 A.2d 1271,
1276 (Pa. Super. 2001) (citing Stredny v. Gray, 510 A.2d 359 (Pa. Super.
1986)). Pennsylvania Rule of Civil Procedure 1910.16-6 addresses
adjustments to support obligations and provides in relevant part as follows:
Rule 1910.16-6. Support Guidelines. Adjustments to the
Basic Support Obligation. Allocation of Additional
Expenses
Additional expenses permitted pursuant to this Rule
1910.16-6 may be allocated between the parties even if the
parties incomes do not justify an order of basic support.
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(a) Child care expenses. Reasonable child care
expenses paid by either parent, if necessary to maintain
employment or appropriate education and pursuit of income,
shall be allocated between the parties in proportion to their net
incomes and added to his and her basic support obligation.
Pa.R.C.P. 1910.16-6(a).
Our review of the record reflects that Mother testified that she pays
$245.00 per week in child care expenses. N.T., 12/9/13, at 14. In addition,
Mother presented documentation from Son’s daycare service provider
reflecting that tuition for a two-year-old child is $245.00 per week. Report
of Master in Support, 4/4/14, at W-2 (Docket Entry 5). Thus, we conclude
that there was sufficient evidence in the record to support the determination
of the weekly child care expense of $245.00, and that the trial court did not
abuse its discretion in this regard.
Concerning Father’s allegation that the child care expense is
unnecessary because Son’s grandmothers could provide child care for Son,
and that Mother enrolled Son in daycare without consulting Father, our
review of the record reflects otherwise. The record indicates that Son
attended daycare prior to the parties’ separation. Specifically, the parties
separated in February of 2013, and Son had been enrolled in daycare since
August of 2012. N.T., 12/9/13, at 5, 152-153. The record further reveals
that, although prior to August of 2012 the grandmothers did babysit Son for
several days of the week, the task had become too difficult for the
grandparents, and the decision was made by the parties prior to August of
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2012 to enroll Son in a daycare program. Id. at 146-152. Therefore, we
conclude that there was sufficient evidence in the record to support the
determination that the child care expense was necessary, and that the trial
court did not abuse its discretion. Accordingly, Father’s challenge to the
award of child care expenses lacks merit.
In his final issue, Father argues that the trial court and the Master
erred in failing to deviate downward from the support guidelines based upon
the parties’ actual living expenses. Father claims that Mother lacks
household expenses because she lives with her parents, yet Father lives with
his mother and expends a significant portion of his income towards their
housing expenses.
In addressing this claim, we are cognizant that the overarching
purpose of child support is to promote the child’s best interest. Arbet v.
Arbet, 863 A.2d 34, 39 (Pa. Super. 2004). Moreover, the appropriate
award for child support
shall be determined in accordance with the support guidelines
which consist of the guidelines expressed as the child support
schedule set forth in rule 1910.16-3, the formula set forth in
1910.16-4 and the operation of the guidelines as set forth in
these rules.
Pa.R.C.P. 1910.16-1(b). The child support schedule provides a table
indicating the appropriate amount of support depending upon the parties’
combined income and the number of children. Pa.R.C.P. 1910.16-3. The
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formula establishes what percentage of the total support determined from
the schedule for which each party will be responsible. Pa.R.C.P. 1910.16-4.
The guidelines were established to bring more predictability to
discretionary aspects of child support determinations:
[T]he support guidelines are the Legislature’s response to the
Federal Government’s mandate that States establish mandatory
guidelines for determining child support. See Introduction to the
1998 Explanatory Comment, Pa.R.C.P. 1910.16-1, 42 Pa.C.S.A.;
42 U.S.C. § 667(a). This statute replaced a discretionary system
and was enacted to create greater uniformity, predictability and
equity in determining child support awards, while at the same
time maintaining a degree of judicial discretion necessary to
address unique circumstances. See Explanatory Comment-1998
to Rule 1910.16-1 (stating purpose of guidelines is to promote
“(1) similar treatment of persons similarly situated, (2) a more
equitable distribution of the financial responsibility for raising
children, (3) settlement of support matters without court
involvement, and (4) more efficient hearings where they are
necessary.”)
L.S.K. v. H.A.N., 813 A.2d 872, 879 (Pa. Super. 2002) (citing Colonna v.
Colonna, 788 A.2d 430 (Pa. Super. 2001)). Further, the guidelines are
presumed to be correct, as evidenced by the following:
(d) Rebuttable Presumption. If it has been determined that
there is an obligation to pay support, there shall be a rebuttable
presumption that the amount of the award determined from the
guidelines is the correct amount of support to be awarded. The
support guidelines are a rebuttable presumption and must be
applied taking into consideration the special needs and
obligations of the parties. The trier of fact must consider the
factors set forth in Rule 1910.16-5. The presumption shall be
rebutted if the trier of fact makes a written finding, or a specific
finding on the record, that an award in the amount determined
from the guidelines would be unjust or inappropriate.
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Pa.R.C.P. 1910.16-1(d). Thus, the support determined under the guidelines
is a rebuttable presumption, from which the trier of fact may deviate under
certain circumstances. Arbet, 863 A.2d at 42.
“As these rules and the prevailing case law make clear, a court
generally has reasonable discretion to deviate from the guidelines if the
record supports the deviation.” Silver v. Pinskey, 981 A.2d 284, 296 (Pa.
Super. 2009) (citing Ricco v. Novitski, 874 A.2d 75 (Pa. Super. 2005)). As
we stated previously, “In determining the . . . ability of the obligor to
provide support, the guidelines shall place primary emphasis on the net
incomes and earning capacities of the parties, with allowable deviations for
unusual needs, extraordinary expenses and other factors, such as
the parties’ assets, as warrant special attention.” 23 Pa.C.S.
§ 4322(a) (emphasis added).
Regarding deviation, Pa.R.C.P. 1910-5 provides as follows:
(a) Deviation. If the amount of support deviates from the
amount of support determined by the guidelines, the trier of fact
shall specify, in writing or on the record, the guideline amount of
support, and the reasons for, and findings of fact justifying, the
amount of deviation.
(b) Factors. In deciding whether to deviate from the amount of
support determined by the guidelines, the trier of fact shall
consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
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(4) ages of the children;
(5) the relative assets and liabilities of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their
children;
(8) in a spousal support or alimony pendent lite
case, the duration of the marriage from the
date of marriage to the date of final
separation; and
(9) other relevant and appropriate factors,
including the best interests of the child or
children.
Pa.R.C.P. 1910-5.
In addressing Father’s claim that a downward deviation of his support
obligation was required and concluding that the requested deviation was not
appropriate, the trial court offered the following analysis:
[Father] . . . avers that both the trial court and the Master
erred in failing to consider that while [Father] pays rent for an
apartment and cares for his elderly mother who resides with
him, [Mother] lives with her parents and has no housing or utility
expenses. Pa.R.C.P. 1910.16-5 sets forth the factors allowing
for deviation from the presumptive amount under the support
guidelines. The Master properly determined that [Father’s]
expenses and debts are not so unusual or extraordinary as to
warrant a deviation from the guidelines. (See Report for child
support, p. 6). During the Master’s hearing, [Father] testified
that his Mother lives with him and contributes to the monthly
rent of $930 and that his portion of the monthly rent is $400-
$500. (N.T. at 42). [Father] further testified that his total
monthly household expenditures are approximately $800. (Id.
at 42-43). In addition, [Father] testified that he had no debts or
obligations other than a private loan in the amount of $8,663
towards which he makes payments when he can afford to [pay].
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(Id. at 43-44). Based on the testimony and evidence of record,
we concur with the Master’s finding.
Trial Court Opinion, 8/22/14, at 8-9.
Our review of the record reflects ample support for the trial court’s
determination that Father failed to rebut the presumption that the guideline
amounts were appropriate. Indeed, Father’s own testimony before the
Master indicated that at the time of the hearing he was living in an
apartment with his mother and they shared living expenses. N.T., 12/9/13,
at 42. The only residents of the household were Father and his mother. Id.
When asked how much he was contributing toward the household, Father
replied:
Ah, I’m paying – let’s see – the rent is 930, I’m paying about
four to five of that, plus electric, cable – ah – so, I’m probably
spending, roughly, about six hundred a month.
Id. Father then offered the following clarification of his household expenses:
[FATHER]: Oh – oh, excuse me, a question, am I supposed to
include food and everything like that, ma’am?
THE MASTER: Yes.
[FATHER]: Oh, yeah, I take care of all the groceries and
everything else in the household, so then, that would take it up,
probably, close to – I’d say, probably eight – all the prescriptions
– all everything.
My mother doesn’t have very much and my father just
passed away in June and I’m trying to catch up on everything
and so, she’s my responsibility as well as all my other ones.
Id. at 42-43. Thus, Father offered testimony that his contribution for
household expenses was approximately $800.00 per month. Father also
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indicated that he has no other children under the age of eighteen, has no
credit card debt, and has no student loans. Id. at 43. In addition, Father
testified that he has an obligation in the form of a private loan in the amount
of $8,663.00, and he makes payments on the loan based upon what he can
afford to pay. Id. at 44. In light of this testimony presented by Father, we
cannot conclude that his stated monthly expenses amount to unusual needs
or extraordinary expenses such that they would rebut the presumption that
the support guidelines are applicable. Likewise, Father has not established
that other factors, such as the parties’ assets, would warrant special
attention. Hence, it is our determination that the trial court did not err in
refusing to deviate downward from the support guidelines in this matter.
Accordingly, Father’s contrary claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2015
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