J-S22033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.M.B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
B.S.W.,
Appellant No. 1248 MDA 2016
Appeal from the Order Entered June 29, 2016
In the Court of Common Pleas of Dauphin County
Domestic Relations at No(s): 1280 DR 2009, PACSES No. 817110975
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.:
FILED JUNE 08, 2017
I respectfully concur in part and dissent in part. I concur with the
learned Majority’s modification of the child support order to set Mother’s
yearly gross earning capacity for the period of August 26, 2015, through
January 3, 2016, at $25,000.
I disagree, however, with the Majority’s finding that the trial court
abused its discretion when it awarded Mother a credit for child care expenses
equal to the amount granted to Father. The trial court issued this award on
the basis that it assigned Mother a full-time earning capacity and “it is a
general assumption that a parent who is employed full-time will incur child
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22033-17
care costs.” Trial Court Opinion, 9/29/16, at 10. The trial court assigned
full-time earning capacity to Mother. Accordingly, her support obligation
should be dictated by that earning capacity. If Mother should choose to
continue to work only part-time, her support obligation calculated on her
earning capacity will not be changed. Where a party willfully fails to obtain
appropriate employment, his or her income will be considered to be equal to
his or her earning capacity. Pa.R.C.P. 1910.16–2(d)(4); Kersey v.
Jefferson, 791 A.2d 419, 423 (Pa. Super. 2002). Thus, Mother’s support
obligation will not be altered due to her failure to seek and acquire full-time
work.
Moreover, the parties share custody of the Children fifty/fifty and both
were assigned full-time earning capacities. Father was awarded credit for
child care in light of the court holding him to a full-time earning capacity and
his custodial status. Accordingly, I believe the trial court was correct in
giving the parties equal credit for child care costs because they share
fifty/fifty custody of the Children and both were assigned full-time earning
capacities as of January 4, 2016. Therefore, I would affirm that part of the
trial court’s holding.
Accordingly, I respectfully concur in part and dissent in part.
-2-
T.M.B. v. B.S.W.
Combined Opinion