J-A16037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.J.P., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
:
v. :
:
L.L.P., :
:
Appellant :
: No. 1302 WDA 2015
Appeal from the Order Dated August 6, 2015
in the Court of Common Pleas of Allegheny County,
Family Division at No(s): FD 13-006662-009
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 07, 2016
L.L.P. (Mother) appeals from the trial court’s denial of Mother’s
exceptions to the hearing officer’s recommendations which granted S.J.P.’s
(Father’s) motion for modification. After a thorough review, we reverse.1
Mother and Father are the parents of two minor children (Children),
born in May 2005 and August 2010, who are the subject of the instant
support action. An initial support order was entered by consent on
September 11, 2013. This order obligated Father to pay $1,400 per month
in child support, $50.00 in arrears, and a portion of Children’s medical care
expenses.
1
Also before us is Father’s motion to quash based on alleged insufficiencies
within Mother’s brief and the reproduced record. Because we do not find
any of the alleged deficiencies to impede our review, we deny Father’s
motion.
* Retired Senior Judge assigned to the Superior Court.
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In March 2015, Father filed a petition for modification of the support
order,2 which was granted by the hearing officer. Specifically, the hearing
officer determined Mother's net monthly income to be $6,859 and Father's
monthly net income to be $7,559. The officer therefore recommended that
Father's child support obligation be reduced to $317 per month, plus $40 on
arrears. Mother filed exceptions. The trial court heard arguments and
ultimately dismissed Mother’s exceptions and entered the hearing officer’s
recommendations as a final order.
Mother timely filed a notice of appeal from that order, and both Mother
and the trial court complied with Pa.R.A.P. 1925.
Mother states one question for our review: “Whether the [trial court]
erred in finding that [Father’s] averment that his income slightly changed
constitutes a substantial change in circumstances so as to justify a
substantial reduction in a non-income, non-guideline based consent order for
child support?” Mother’s Brief at 1 (capitalization and suggested answer
omitted).
We set forth our well-settled standard of review and applicable
principles of law with respect to a support order.
2
The petition stated that Father’s income had “increased” as the reasoning
for seeking modification. See Motion for Modification, 3/15/2015, at 2.
Father avers this was a mistake made by the individual in the Domestic
Relations Office who prepared Father’s modification petition. Father’s Brief
at 3.
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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.
Silver v. Pinskey, 981 A.2d 284, 291 (Pa. Super. 2009) (quoting Mencer
v. Ruch, 928 A.2d 294, 297 (Pa. Super. 2007)).
“An award of support, once in effect, may be modified via petition at
any time, provided that the petitioning party demonstrates a material and
substantial change in their circumstances warranting a modification.”
Plunkard v. McConnell, 962 A.2d 1227, 1229 (Pa. Super. 2008). See
also Pa.R.C.P. No. 1910.19(a) (“A petition for modification or termination of
an existing support order shall specifically aver the material and substantial
change in circumstances upon which the petition is based.”).
Demonstrating a material and substantial change is necessary to
modify both court-ordered and consented-to support orders. See
Boullianne v. Russo, 819 A.2d 577, 580 (Pa. Super. 2003) (citing
Nicholson v. Combs, 703 A.2d 407, 417 (Pa. 1997) (“[A] family court’s
power to modify a support order downward is not precluded by the existence
of an agreement upon which the support order is based. ‘In [a] support
action,... the payee may not claim that the [agreement] prevents the family
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court from modifying the order downward if such reduction is necessary to
prevent payor from having to comply with an order that he cannot pay due
to changed circumstances.’”).
On appeal, Mother argues that the trial court erred in accepting the
hearing officer’s recommendations to decrease Father’s monthly support
obligation. Specifically, Mother avers that Father’s income has actually
increased, and regardless of whether it has increased or decreased, such
fluctuation is due to a voluntary change in circumstances, i.e.: Father
voluntarily changing jobs does not warrant a change in Father’s support
obligation. Mother’s Brief at 5-7.
The trial court offered the following explanation to support its findings
that Father presented a material and substantial change.
Notwithstanding the fact that an increase in income may
constitute a material and substantial change in circumstance
thus making [Mother’s] sole issue complained of on appeal
meritless, this [c]ourt finds that Father actually had a decrease
in income between 2013 and 2015; which further justifies a
modification of the 2013 Support Consent Order. The record
from the April 28, 2015 modification hearing reveals that
[Father] changed employers multiple times between 2013 and
2015. Due to overlapping bonuses and some independent
contract work in 2013, [Father] was projected to earn
approximately $140,000 per year at the time the 2013 Support
Consent Order was entered. In 2015, however, the record
reflects that [Father] is earning only $126,880 per year, a
$13,120 decrease in income since 2013.
Trial Court Opinion (TCO), 10/23/2015, at 6-7. The court further found that
at the time the [s]upport [c]onsent [o]rder was entered, [Father
and Mother’s] respective incomes were [u]nknown as the Order
was entered without any testimony and/or findings. After
reviewing the entire situation de novo, it is clear that [Father]
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has sustained his burden of proving a material and substantial
change in circumstances and that the Hearing Officer was
justified in recommending a support order based upon the
parties’ respective net incomes as of 2015 and in accordance
with Pennsylvania’s Support Guidelines.
Id. at 7.
We disagree. Accepting the trial court’s finding that Father’s income
decreased by $13,120,3 that decrease was neither an involuntary change nor
a substantial one. “As is provided in Pa.R.C.P. 1910.16–2(d)(1),[4] generally
there is no change to the support obligation following a voluntary reduction
of income[.]” Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010).
While our Court has upheld support modifications based upon voluntary
reductions in income, we have long held that in order for such a reduction to
be warranted,
a petitioner must first establish that the voluntary change in
employment which resulted in a reduction of income was not
made for the purpose of avoiding a child support obligation and
secondly, that a reduction in support is warranted based on
petitioner's efforts to mitigate any income loss. In effect,
petitioner must present evidence as to why he or she voluntarily
left the prior employment and also as to why the acceptance of a
lower paying job was necessary.
Grimes v. Grimes, 596 A.2d 240, 242 (Pa. Super. 1991).
3
Mother argument that Father’s income has not decreased since entering
into the 2013 consent custody order is of no moment, since we find Father’s
purported decrease in income of $13,120 to be neither a substantial nor
involuntary change to warrant a change in his support obligation.
4
“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.” Pa.R.C.P. 1910.16–2(d)(1).
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Instantly, Father failed to present evidence that he had made efforts
to mitigate the income loss, nor why accepting his current position was
necessary.5 Significantly, Father makes no argument that the less than 10%
reduction in income prohibited him from paying the monthly court-ordered
support and he does not dispute the fact that he voluntarily chose to change
jobs, understanding his income would decrease as a result.
We are mindful that it is within the trial court’s discretion to determine
what a substantial change is. See Plunkard v. McConnell, 962 A.2d 1227,
1229 (Pa. Super. 2008) (“[T]he determination of whether such change has
occurred in the circumstances of the moving party rests within the trial
court’s discretion.”). Likewise, we are cognizant that since the prior support
order was entered by consent, without testimony or determination of the
parties’ income, the trial court “was not limited to considering only changed
circumstances, but could be justified in examining the entire situation de
novo.” Bradley v. Bradley, 564 A.2d 504, 506 (Pa. Super. 1989).
However in this case, the trial court’s analysis is completely devoid of
any reason why Father’s voluntary reduction in income, resulting in a less
than 10% difference between his income in 2013 and 2015, warranted a
5
Father’s counsel set forth his work history, explaining that since 2013 he
left three jobs for various personal reasons, including that he felt one
department he worked in was “completely disorganized and [Father] did not
like the way the department was run.” N.T., 4/28/2015, at 6, 10. He
eventually accepted his current position which he “plans to stay [] for the
immediate future” where he is paid hourly with no bonus structure, vacation
pay, or sick days. Id. at 11.
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reduction in his obligation, a complete disregard of the parties consented to
agreement, and a new order based on the support guidelines.
Because we find a dearth of evidence to support the trial court’s
conclusion that Father has met his burden in accordance with our well-
established case law, we vacate the order granting Father’s support
modification and reinstate the order dated September 11, 2013.
Order vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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