J-S01037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIRISA L. GENNOCK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN S. GENNOCK
Appellee No. 1141 WDA 2014
Appeal from the Order Entered June 16, 2014
In the Court of Common Pleas of Lawrence County
Domestic Relations at No(s): 597 of 2005, D.R., PACSES NO. 876107490
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 02, 2015
Appellant, Kirisa L. Gennock (“Mother”), appeals from the order
entered in the Lawrence County Court of Common Pleas, which granted
Appellee’s, John S. Gennock (“Father”), petition for modification of child
support and suspended Father’s child support payments. We vacate and
remand for further proceedings.
The trial court’s opinion sets forth the relevant facts and procedural
history of this case as follows:
[Mother] and [Father] are the natural parents of two minor
children. [Mother] initiated a complaint for child support
on July 15, 2005. At that time, [Mother] was employed as
a school teacher, and [Father] was a [self-employed]
contractor. Following a conference, [Father] was assessed
a monthly support obligation for the two minor children.
On December 4, 2013, [Father] filed a petition for
modification of child support, wherein [Father] claimed he
suffered from a medical disability and is unable to work.
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[Father] failed to provide the Office of Domestic Relations
with sufficient verification of his disability, and his request
for a reduction in his child [s]upport obligation was
dismissed. [Father] was directed to continue child support
payments as directed by the July 14, 2011 Support Order.
[Father] then filed a timely demand for a hearing before
[the trial] [c]ourt.
At the [de novo] [h]earing, [Father] testified as to his
various forms of past employment. [Father] eventually
became a self-employed contractor in 2001. In February
2012, [Father] began to suffer chronic pain and fatigue.
[Father] stated that he attempted to maintain continuous
employment, but [Father] was unable to work at the
capacity required in the construction trade. [Father] has
continuously undergone medical treatment, but his
insurance changed following the parties’ divorce in January
of 2014. Consequently, [Father] had to begin a new
course of treatment with different physicians. [Father]
described his inability to complete daily functions and his
struggles with pain management. [Father] expressed a
desire to work and various attempts at employment, but
explained that his severe pain made any efforts futile.
[Mother] testified that she has observed [Father]
performing yard work at his girlfriend’s residence.
[Mother] stated that within weeks of the [de novo]
[h]earing she saw [Father] operating a Bobcat and
mending a fence in the back yard. [Mother] believes
[Father] is able to maintain a full-time job and requests
[Father] be assessed a monthly earning capacity
consistent with his prior income.
Based upon the testimony presented, [the trial] [c]ourt
entered an [o]rder on June 16, 2014[,] suspending
[Father’s] child support obligation. From this [o]rder,
[Mother] filed a timely appeal.
(Trial Court Opinion, filed August 15, 2014, at 2-3). The court ordered
Mother to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Mother timely complied.
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Mother raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN FINDING THAT
[FATHER] WAS UNEMPLOYED AND THEREFORE LACKS
SUFFICIENT INCOME TO ASSESS A CHILD SUPPORT
ORDER FOR THE BENEFIT OF THE PARTIES’ MINOR
CHILDREN?
WHETHER THE TRIAL COURT ERRED IN FINDING [FATHER]
WAS NOT SELF-EMPLOYED?
WHETHER THE TRIAL COURT ERRED IN DETERMINING
[FATHER] WAS UNABLE TO WORK DUE TO REASONS
OTHER THAN MEDICAL REASONS?
(Mother’s Brief at 4).
In her issues combined, Mother argues Father willfully failed to obtain
or maintain appropriate employment. Mother claims Father is able to work
but chooses not to; and he failed to produce any medical evidence that he is
unable to work. Mother maintains the court unreasonably determined Father
lacked sufficient income to pay child support because he was unemployed,
and the court should have imputed an earning capacity to Father. Mother
concludes this Court should vacate and remand for a hearing to determine
Father’s proper earning capacity and child support obligation. We agree.
The well-settled standard of review in a child support case provides:
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
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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.
Silver v. Pinskey, 981 A.2d 284, 291 (Pa.Super. 2009) (en banc) (quoting
Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)). Additionally, “[t]he
fact-finder is entitled to weigh the evidence presented and assess its
credibility[.]” Samii v. Samii, 847 A.2d 691, 697 (Pa.Super. 2004)
(quoting Green v. Green, 783 A.2d 788, 790 (Pa.Super. 2001), appeal
denied, 569 Pa. 707, 805 A.2d 524 (2002)).
In most cases, child support is awarded pursuant to a statewide
guideline as follows:
§ 4322. Support guideline
(a) Statewide guideline.―Child and spousal
support shall be awarded pursuant to a Statewide
guideline as established by general rule by the Supreme
Court, so that persons similarly situated shall be treated
similarly. The guideline shall be based upon the
reasonable needs of the child or spouse seeking support
and the ability of the obligor to provide support. In
determining the reasonable needs of the child or spouse
seeking support and the ability of the obligor to provide
support, the guideline 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. The guideline so developed shall
be reviewed at least once every four years.
23 Pa.C.S.A. § 4322(a). Well-established law makes clear both parents are
responsible for the support of their children. Sammi, supra at 696 (citation
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omitted). Significantly, “[t]he determination of a parent’s ability to provide
child support is based upon the parent’s earning capacity rather than the
parent’s actual earnings.” Id. (quoting Laws v. Laws, 758 A.2d 1226,
1229 (Pa.Super. 2000)). “Where a party voluntarily assumes a lower paying
job, there generally will be no effect on the support obligation. Where a
party willfully fails to obtain appropriate employment, his…income will be
considered to be equal to his…earning capacity.” Portugal v. Portugal,
798 A.2d 246, 250 (Pa.Super. 2002) (citing Kersey v. Jefferson, 791 A.2d
419 (Pa.Super. 2002)) (internal citations and quotation marks omitted).
Earning capacity is the amount that a person could realistically earn under
the circumstances, not the amount which a person could theoretically earn.
Gephart v. Gephart, 764 A.2d 613, 615 (Pa.Super. 2000). “Age,
education, training, health, work experience, earnings history and child care
responsibilities are factors which shall be considered in determining earning
capacity.” Pa.R.C.P. 1910.16-2(d)(4). Further, the trial court must conduct
a full inquiry before making a factual determination about a party’s earning
capacity. See Haselrig v. Haselrig, 840 A.2d 338 (Pa.Super. 2003).
“When a party seeks to modify a child support order, the moving party
has the burden of proving by competent evidence that a material and
substantial change of circumstances has occurred since the entry of the
original or modified support order.” Soncini v. Soncini, 612 A.2d 998,
1000 (Pa.Super. 1992) (citation omitted). “[C]hanged circumstances include
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proof of an increase in expenditures for litigants’ children, along with other
facts which could demonstrate that a previous support order should be
reconsidered.” Farabaugh v. Killen, 648 A.2d 60, 62 (Pa.Super. 1994)
(citation omitted). “The change in circumstances must be ‘permanent,’
meaning it is irreversible and indefinite in duration.” Crawford v.
Crawford, 633 A.2d 155, 164 (Pa.Super. 1993) (citation omitted).
“The lower court must consider all pertinent circumstances and base
its decision upon facts appearing in the record which indicate that the
moving party did or did not meet the burden of proof as to changed
conditions.” Sammi, supra at 695 (citation omitted). “[W]here the moving
party’s burden of proof has not been met, an abuse of discretion will be
found.” Crawford, supra (citation omitted). See Kimock v. Jones, 47
A.3d 850, 857 (Pa.Super. 2012) (holding father’s failure to provide trial
court with any variation in his finances or child’s needs, which would affect
his ability to pay support, did not constitute material and substantial change
in circumstances); Soncini, supra (holding father failed to show material
and substantial change of circumstances because record failed to support
father’s claims of decreased earnings and increased expenses).
Compare Farabaugh, supra (holding substantial increase in
expenditures for children, including tutoring for learning disability and
substantial orthodontic work, along with necessary household expenses,
constituted material and substantial change in circumstances);
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Commonwealth ex rel. Sladek v. Sladek, 563 A.2d 172, 175 (Pa.Super.
1989) (holding specific increase in cost of living, which affects expenditures
on children, constituted change of circumstances under Rule 1910.19(a));
Hesidenz v. Carbin, 512 A.2d 707, 712 (Pa.Super. 1986) (holding
appellant produced sufficient evidence to demonstrate substantial change in
circumstances by introducing doctor’s deposition testimony, which detailed
Appellant’s deteriorating health due to symptoms of coronary artery disease
after birth of second child, and doctor’s recommendation led to appellant’s
decision to terminate part-time employment).
Instantly, at the de novo hearing, Father testified that he was a self-
employed contractor from 2001 until February 2012, when he was suddenly
unable to get out of bed for two weeks. (N.T., 6/3/14, at 10-12). Father
testified he continues to suffer from severe pain in various parts of his body,
which prevents him from completing the daily functions of an employee or
general contractor. Id. at 14-15. Father also testified he has been treating
with several physicians since February 2012; however, he was forced to
obtain new physicians in January 2014, after a change in medical insurance.
Id. at 16-17. Father testified he attempted to perform contracting work in
the six months prior to the hearing, but he was able to work only twenty-five
percent of the time he used to work. Id. at 17-18, 19-20. Nevertheless,
Father testified he reached a point in October 2014, where he could no
longer work at all. Id. at 21. Additionally, Mother testified at the hearing
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that she saw Father working in the yard of his home one week prior to the
hearing. Id. at 36-38. Mother also introduced three photographs of an
individual she claimed was Father performing various contracting work in the
yard. Id. at 36-41.
Father’s testimony was his only evidence. There is nothing in the
record to prove Father’s total disability except his testimony. Father did not
present any medical or other documentary evidence, any witnesses, or any
physical evidence of his total disability. Therefore, Father failed to introduce
any substantiating evidence to support his self-proclaimed total disability.
Notwithstanding Father’s testimony, Father did not meet his burden of proof
to show a material and substantial change of circumstances. See Soncini,
supra. Thus, the court’s decision to suspend Father’s child support
payments was in error. See Crawford, supra; Silver, supra. Accordingly,
we vacate the trial court’s order and remand for a new hearing so Father can
present admissible corroborating evidence of a change in circumstances
regarding earning capacity to justify relief from child support.
Order vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2015
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