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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHEENA BAKER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DOUGLAS BAKER, :
:
Appellee : No. 852 WDA 2014
Appeal from the Order May 12, 2014
in the Court of Common Pleas of Venango County,
Domestic Relations Division, D.R. No. 24 of 2012;
PACSES No. 320113017
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 23, 2015
Sheena Baker (“Mother”) appeals from the Order of the trial court
assigning to Douglas Baker (“Father”) a net income of $1,000.00 per month,
and requiring Father to pay child support in the amount of $133.00 per
month from February 2013 through July 2013, and after applying an
amendment to the support guidelines, requiring Father to pay $62.00 per
month from August 2013 forward. We affirm.
Mother and Father married on August 19, 2006. The parties have one
son (“Child”), who was born on in October 2007. Mother and Father
separated on August 20, 2011, after which Child resided with Mother. The
trial court entered a divorce Decree in January 2013.
While the parties were separated, Mother filed a Complaint for child
support. On February 14, 2012, the parties reached an agreement whereby
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Father would pay child support in the amount of $400.00 per month,
beginning that same date. The trial court entered an Order reflecting the
parties’ agreement.
On February 6, 2013, Father filed a Petition to modify the February
2012 support Order. In his Petition, Father alleged the following:
[Father] requests [that] the monthly child support amount be
reviewed as he is no longer responsible to pay [Mother]
insurance on his business garage that was calculated into the
current court[-]ordered support total.
Petition for Modification, 2/6/13, ¶ 2.
Ultimately, the matter proceeded to a hearing before a Domestic
Relations hearing officer (the “Hearing Officer”). After a hearing, the
Hearing Officer assigned to Father a monthly net income of $1,905.40.
Hearing Officer Report and Recommendation, 6/27/13, at 4. In doing so,
the Hearing Officer explained that “[Father] is self-employed as a mechanic.
His 2012 tax return shows net income for the year of $265.00. This is
unreasonable. He did receive lease income in prior years[,] but does not
now have that income.” Id. Consequently, the Hearing Officer
recommended that Father pay $465.59 per month in child support. Id.
Father filed Exceptions to the Report and Recommendation of the
Hearing Officer. After argument on the Exceptions, the trial court entered
an Order remanding the matter to the Hearing Officer. Trial Court Order,
9/11/13, at 1. The trial court directed the Hearing Officer to conduct
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another hearing, and “thereafter specifically indicate how he arrives at any
wage that he assigns to [Father].” Id.
After a hearing on remand, the Hearing Officer, crediting Mother’s
testimony, found that “a qualified auto mechanic with [Father’s] experience
should be capable of earning at least $15.00 per hour.” Interim Order,
11/7/13. The Hearing Officer issued the following explanation in support of
this finding:
As to the determination of [Father’s] earning capacity, the
[H]earing [O]fficer is disregarding [Father’s] actual earnings[,]
as evidenced by his tax returns and his testimony concerning his
eligibility for public benefits. … The [H]earing [O]fficer finds
credible the testimony of the conference officer who investigated
the issue of earning capacity resulting in [Mother’s] Exhibit A.
[Father] has been in business for a number of years and should
have acquired the tools and experience necessary to justify a
finding of an earning capacity of $15.00 per hour. The
reasonableness of an earning capacity of $15.00 per hour was
also supported by the testimony of a witness experienced in the
management of an automobile repair shop including the rates of
pay of various experienced mechanics.
Id. at 2.
Father timely filed Exceptions. After oral argument, the trial court
concluded that the Hearing Officer had erred in assigning a wage to Father.
Child Support Order, 2/28/14, at 1. The trial court reasoned that Father had
worked in his present position, as a self-employed mechanic, for eight or
nine years. Id. The trial court additionally offered the following rationale
for not adopting the findings of the Hearing Officer:
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It is clear from the evidence that [Father] was working in the
capacity as a self-employed auto-mechanic while the parties
resided together ….
The court hereby finds that [Father] did not change positions
and did not seek out a lower paying position to frustrate the
purposes of the obligation of child support or to frustrate
[Mother] from obtaining child support from [Father]. [Father]
was merely working in the same capacity he had been working in
all along and while the parties were together….
Id. at 2. The trial court again remanded the matter and directed the
Hearing Officer to calculate Father’s support obligation, based upon Father’s
income “as submitted during the prior hearings[,] and said obligation shall
be retroactive to the original hearing to adjust child support.” Id. at 3.
However, upon the Motion of Mother, the trial court entered a final
Order finding Father’s net monthly income to be $1,000. Trial Court Order,
4/29/14, at 1. The trial court’s Order calculated Father’s support obligation,
from February 2013 through July 2013, to be $133.00 per month, and from
August 2013 forward to be $62 per month. Mother filed a timely Notice of
Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Mother now presents the following claim for our review:
Did the [trial] court err as a matter of law or abuse its discretion
in rejecting the determination of the [Hearing Officer] that []
Father has an earning capacity of $15 per hour[,] and otherwise
err in determining that his monthly net income is only $1,000?
Brief for Appellant at 2.
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Mother argues that, by statute, “the [child support] guidelines shall
place primary emphasis on the net incomes and earning capacities of the
parties.” 42 Pa.C.S.A. § 4322(a) (emphasis omitted). Mother directs our
attention to Pennsylvania Rule of Civil Procedure 1910.16-2(d), and argues
that, “[a]lthough a person’s actual earnings usually reflect his earning
capacity, where there is a divergence, the obligation is determined more by
earning capacity than actual earnings.” Brief for Appellant at 5 (emphasis
omitted) (quoting Mencer v. Ruch, 928 A.2d 294, 299 (Pa. Super. 2007).
According to Mother, there is an obvious “divergence” between Father’s
asserted annual income and “what he is realistically capable of earning as an
experienced, trained, licensed, certified auto mechanic.” Brief for Appellant
at 5. Mother directs our attention to Father’s testimony regarding his age,
education, work experience and certifications. Id. at 6. Mother further
directs our attention to evidence regarding local wage rates for auto
mechanics and mechanics with Father’s qualifications. Id.
Mother also contends that the trial court erred when it relied upon this
Court’s decision in Dennis v. Whitney, 844 A.2d 1267 (Pa. Super. 2004),
arguing that the Dennis case is distinguishable. Brief for Appellant at 7. In
Dennis, Mother asserts, although the father had a bachelor’s degree as an
agricultural engineer, he had not worked in that field and there were no jobs
available in that field. Id. at 7. Mother asserts that in Dennis, unlike in
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the instant case, the court addressed whether the father should be forced to
stop working on the family farm to pursue non-existent work. Id.
Finally, Mother takes issue with the trial court’s rejection of the
findings of the Hearing Officer. Id. Mother asserts that in Dennis, unlike in
the instant case, the trial court heard the evidence de novo, rather than
merely reviewing the findings of the Hearing Officer. Id. Mother disputes
the trial court’s finding that Father is “doing the best he can,” arguing that
“[t]here is nothing to support this conclusion, which was made without the
benefit of having been the trier of fact.” Id.
“In reviewing a support order, we are limited to considering whether[,]
based on clear and convincing evidence[,] the trial court abused its
discretion.” Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006).
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. 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.
Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super. 2012) (citations
omitted).
Generally, the amount of support to be awarded is based upon the
parties’ monthly net income. Pa.R.C.P. 1910.16-2. However, “[i]f the trier
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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.” Pa.R.C.P.
1910.16-2(d)(4).
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); see also Gephart v. Gephart, 764 A.2d 613,
614-15 (Pa. Super. 2000) (explaining that 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).
A party may not voluntarily reduce his or her income in an attempt to
circumvent a support obligation. Woskob v. Woskob, 843 A.2d 1247,
1253-54 (Pa. Super. 2004). However, 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,
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the trial court does not abuse its discretion in calculating earning capacity
based upon the lower paying job. Dennis, 844 A.2d at 1270.
In Dennis, the mother sought to have the father held to a higher
earning capacity, because the father had a Bachelor of Arts degree in
Agricultural Engineering. Id. at 1268. The trial court declined to assign a
higher earning capacity to father. Id. On appeal, this Court affirmed,
observing that
[the f]ather did not voluntarily reduce his income by accepting a
lower paying position, nor did he accept a lower paying job in
the face of more lucrative opportunities. The evidence of record
established that [the f]ather had been in his present position
since approximately nine years prior to the birth of his child. In
addition, the evidence established that the [f]ather had never
worked as an agricultural engineer. Finally, the [f]ather testified
at the hearing that there are no jobs in the field of agricultural
engineering in the vicinity of Erie....
Id. at 1270. This Court further discerned no abuse of discretion, where the
trial court found that the father had not willfully failed to obtain appropriate
employment in order to frustrate the mother’s attempts to receive adequate
support, or that the father had only recently “began this vocation to lower
his support payments.” Id.
In the instant case, Father presented evidence that he has children,
ages fourteen and eight years old, with Kathryn Lynch (“Lynch”). N.T.,
10/22/13, at 10. Although there is no child support order or agreement with
regard to these children, Lynch testified that Father provides support in the
form of co-payments for insurance, and the purchase of prescription drugs
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and all school clothing, totaling about $100 per month. Id. at 10, 12.
According to Lynch, she and Father split custody of the children, with each
parent having the children every other week. Id. at 10.
Father also presented evidence that he and Jennifer Porter (“Porter”)
currently share a residence, and together, they qualify for assistance from
Pennsylvania’s Department of Public Welfare. Id. at 13. Father presented
his application for public welfare assistance, which stated that Father
received gross wages of $1,231.25 per month. Id. Father also testified that
his monthly gross income is approximately $1,200 per month. Id. at 16.
However, Father further testified that he uses some of his gross earnings to
pay business expenses for his automobile repair business, the Rage
Automotive Shop. Id. According to Father, his gross income barely pays
the expenses for his business. Id. at 32.
Father further testified as to his certifications for advanced engine
repair, as well as for chassis, brakes and air-conditioning work. Id. at 25.
Father stated that he has never worked for an automobile dealership or for
any other garage. Id. In explaining why he did not seek other, full-time
employment, Father testified as follows:
I do have other medical conditions that would prohibit me
from doing other heavy physical labor, I mean, when I was 17[,]
I had a car accident, broke my back in six places, my hip in
three places, my jaw, I was paralyzed and so forth, so I do have
limitations. So by being self[-]employed[,] I can pace myself at
the speed I need to be.
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Id. at 33. Father also explained that the time he is actually able to bill an
hourly rate varies. Id. According to Father, “[i]t varies a lot, by the time
you deal with the customers during the day, you call the parts stores and
wait for the deliveries and so forth, … even though you were there for eight
hours[,] you may only work three hours a day on a car….” Id. at 34. As a
result, Father explained, he may only bill about 10 hours per week at $35.00
per hour. Id. Although Mother presented evidence that Father could earn
more elsewhere, the trial court found that Father did not willfully fail to
obtain or maintain appropriate employment. See Trial Court Opinion,
8/20/14, at 3.
This Court has held that the “credibility to be assigned the parties’
testimony and supporting exhibits lies initially with the hearing officer and
the trial court.” Sirio v. Sirio, 951 A.2d 1188, 1195 (Pa. Super. 2008).
Although the trial court’s scope of review is limited to evidence received by
the hearing officer, the trial court is obligated to conduct a complete and
independent review of the evidence when ruling on exceptions. Id. at 1196;
see also Cunningham v. Cunningham, 548 A.2d 611, 613-14 (Pa. Super.
1988).
Here, the trial court determined that “Father did not actively do
anything to alter his earnings or to frustrate the system[,]” and “simply
continued to work in the same position that he had been working all along.”
Trial Court Opinion, 8/20/14, at 3; see also Dennis, 844 A.2d at 1270.
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Because the record supports the trial court’s findings, and there is no clear
and convincing evidence that the court abused its discretion, we cannot
grant Mother relief on her claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
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