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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HEATHER M. MILLER IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
CHRISTOPHER M. MILLER
Appellant No. 305 WDA 2017
Appeal from the Order Entered January 18, 2017
In the Court of Common Pleas of Erie County
Domestic Relations at No(s): NS 201500162
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 29, 2017
Christopher M. Miller (“Father”) appeals from the January 18, 2017
order denying his motion to modify the allocated child and spousal support
obligations in favor of his wife, Heather M. Miller (“Mother”), and three
children.1 We reverse the portion of the order relating the calculation of
Father’s child support obligation and remand for further proceedings.
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1 Mother filed for divorce during 2015 and, as of the date of the January 18,
2017 support hearing, no divorce decree had been entered. While we have
jurisdiction to consider claims related to child support, we cannot address
issues related to spousal support or alimony pendent lite until a divorce decree
has been entered and the certified record shows that no economic claims
remain to be decided. Hrinkevich v. Hrinkevich, 676 A.2d 237, 239
(Pa.Super. 1996) (“the portion of a trial court order attributable to child
support is final and immediately appealable; however, the portion of an order
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On April 22, 2015, Mother instituted this action for support for herself
and the parties’ four minor children, the oldest of whom subsequently reached
the age of emancipation and is no longer involved in these proceedings.
Mother and Father share equal physical custody of the children. During the
conference phase of the support proceedings, the parties consented to a June
16, 2015 support order that obligated Father to pay Mother $2,840 per month.
The order allocated $1,609.54 of the amount toward child support, $907.13
in spousal support designated as alimony pendent lite (“APL”), and a $323.30
contribution toward the mortgage on the marital home where Mother and the
children lived. The monthly obligation was based upon Father’s stipulation to
a monthly net income of $7,359.40 from a masonry business that he operated.
Approximately three months after the support order was entered, Father
filed a petition to modify the order so that it conformed to a consent order
entered in the parallel divorce proceeding. That order provided Father credit
for paying the mortgage directly to the bank. During the ensuing support
conference, Father also requested a downward modification of his support
payment because he was forced to close his masonry enterprise. He explained
that he had to shutter his business due to his inability to pay vendors, satisfy
mounting operating costs, and pay overdue taxes and unemployment
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allocated to spousal support is interlocutory.”). Hence, we address Father’s
arguments only as they relate to his child support obligation.
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compensation insurance. He obtained employment with a competitor earning
$25.00 per hour. The conference officer discredited Father’s assertions,
concluded that he voluntarily abandoned his masonry company to reduce his
support obligations, and assigned Father an earning capacity that was
identical to the income that he earned from his business. Accordingly, the
conference officer issued an interim order that credited Father’s past mortgage
payments against his support arrears, but did not alter the monthly support
obligation.
Father filed a de novo appeal from the conference officer’s interim order,
and following an evidentiary hearing, the trial court ruled that the interim
order was “appropriate” and entered it as final order. The court neglected to
issue any independent finding of facts to support its decision. Father did not
appeal.
On February 4, 2016, Father filed another petition for a downward
modification of his support obligation. He stated that he had been laid off
from his initial employer during December 2015, but was hired at the same
rate by a different competitor three months later. In addition, Father claimed
that he was being sued by his former suppliers. He asked that his income for
support purposes be calculated at the amount of his actual earnings of $25.00
per hour. The conference officer denied that petition, and following an
evidentiary hearing, the trial court continued to assign Father an earning
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capacity commensurate with what it had been when he operated his masonry
venture. Again, the court declined to proffer an independent finding of facts.
On October 24, 2016, Father filed a third petition to reduce his support
obligations. He leveled several grounds for the downward modification. First,
he argued that his former earning capacity had been greatly reduced and that
the imputed amount was impossible to achieve. In addition to that complaint,
he (1) contended that Mother’s earning capacity should reflect her ability to
earn a $50,000 annual salary as an elementary school teacher; (2) argued
that APL was inappropriate because Mother was delaying the divorce
proceedings; and (3) reasserted his initial complaint that the redundant
mortgage contribution should be removed from the calculation of the support
order. See Conference Officer’s Summary, 10/17/16, at 2. The conference
officer issued an interim order that reduced the total support obligation from
$2,840 to $2,548.90 to reflect the emancipation of the oldest child and the
overdue removal of the duplicate $323 mortgage contribution requirement
that had persisted since the initial support order entered during 2015.
Nevertheless, the interim order increased the amount that Father paid to each
of the three remaining children by $29.40 per child, and without explanation,
it increased Mother’s monthly APL from $907.13 to $1011.03. During the
ensuing de novo appeal, Father presented evidence of his prolonged economic
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struggle,2 including the fact that he frequently works up to sixty hours per
week and solicits side jobs simply to earn enough money to comply with the
court-ordered support obligations that now exceed seventy percent of his net
monthly income. N.T., 1/18/17, at 16-17, 19, 20-21, 27.
Once more, the trial court found the conference officer’s interim order
appropriate and extended it as a final support order. Although the court
initially continued its refusal to express any independent findings of fact,
following Father’s timely appeal from the January 18, 2017 order, the trial
court finally provided its stand-alone rationale. Essentially, the court
determined, “Father simply has not demonstrated a change of
circumstances[,]” that warranted modification. Trial Court Opinion, 4/11/17,
at 6. The court continued, if Father objected to the assessment of his earning
capacity, he should have appealed that order at the outset. It reasoned, “[A]
modification petition is not a substitute for an appeal.” Id. at 8. For the
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2Father testified that he filed a petition for bankruptcy during December 2016.
That petition does not affect our decision herein insofar as Father’s domestic
support obligations are not subject to discharge. See 11 U.S.C.A. § 523(a)
(5) and (15). It is unclear, however, whether the trial court’s post-petition
determination of Father’s support obligations violated the Bankruptcy Code’s
automatic stay of state court proceedings. We need not address that question,
nor the related issue regarding the effect of the stay on the instant appeal,
because Father’s bankruptcy case was closed on September 26, 2017. See
U.S. Bankruptcy Court, Western District of Pennsylvania, case number 16-
11178-TPA.
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following reasons, we disagree with the court’s perspective that Father is
eternally bound by the court’s prior assessment of an earning capacity.
Father presents two issues for our review:
[1.] Whether the trial court committed an error of law and/or an
abuse of discretion when it failed to consider the combination of
several important factors pertaining to Appellant's actual income
for purposes of guideline calculation, to-wit: Appellant's actual
income; the passage of time over a prolonged period to reevaluate
earning capacity; and Appellant's realistic earnings versus
theoretical earning capacity.
[2.] Whether the trial court committed an error of law and/or an
abuse of discretion when it failed to, in lieu of utilizing guidelines
as to non-existent prior income, apply a deviation from the same
due to actual income.
Father’s brief at 4.
Initially, we delineate our standard or review of a support order.
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 that 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.
Arbet v. Arbet, 863 A.2d 34, 39 (Pa.Super. 2004) (citation omitted).
We conclude that the trial court erred in its persistent utilization of
Father’s prior, exorbitant earning capacity instead of his modest actual
earnings to calculate his income for support purposes. Father’s first complaint
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is that his non-existent prior income from his defunct business should no
longer be used to calculate his income. In rejecting Father’s claim, the trial
court determined that there has not been a change of circumstances between
these support modification proceedings and the prior ones to warrant
modification. However, this rationale misses the mark. Father’s position is
largely premised upon the passage of time since his business closed, and he
relies upon that time lapse as the premise for his position that his actual
earnings, as opposed to the income he earned from his business, should be
used for support purposes. Hence, the change in circumstances at issue
herein is the period of time that his business has been closed.
The law is clear that support obligations are determined by actual
income and financial resources rather than earning capacity. Pa.R.C.P.
1910.16-2. (“Generally, the amount of support to be awarded is based upon
the parties monthly net income.”). Indeed, earning capacity is reserved for
instances where a party “willfully fails to obtain appropriate employment[.]”
Smedley v. Lowman, 2 A.3d 1226, 1228–29 (Pa.Super. 2010). Pa.R.C.P.
1910.16–2(d)(4), states:
(4) Earning Capacity. 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. 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
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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). Even when a court imputes an earning capacity,
that fiction must be a reasonable reflection of reality. Indeed, “a support
obligation is based upon the ability of a party to pay, and . . . the concept of
an earning capacity is intended to reflect a realistic, rather than a theoretical,
ability to pay support” Rule 1910.16-2 Explanatory Cmt—2010.
Father maintains that the protracted period of time that his business has
been shut down should have been considered by the trial court before it
rejected his request to modify the order using his actual earnings for support
purposes. We agree. In Novinger v. Smith, 880 A.2d 1255, 1256 (Pa.Super.
2005), we addressed a similar issue and concluded, “Even if a person loses a
job through his or her own fault, [eventually] it is necessary to reevaluate the
situation by considering his or her earning capacity relative to the employment
market at the later time.” In that case, the father lost his position as a welder
earning $40,000 per year and accepted a job as a general handyman. While
his actual earnings were closer to $25,000, the trial court assigned the higher
earning capacity for support purposes because his employer fired him for
cause after he was late for work the day that he was discharged from a drug
rehabilitation facility. In reversing the trial court’s utilization of earning
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capacity, we concluded that the father’s actions failed to establish that he had
deliberately tried to avoid his child support obligation and that he should be
assigned an earning capacity equivalent to his actual earnings. Significantly,
as it relates to the case at bar, we reasoned, “When a person quits a job or is
fired for an infraction, . . . [t]he person should not have to pay forever for
losing employment. At some point, the courts should take another look at his
or her true earning capacity.” Id. at 1257.
In the present case, Father had a successful masonry enterprise for
fifteen years that he stipulated during the 2015 support conference afforded
him net monthly income of $7,359.40. However, three months after entering
that stipulation, Father was required to shutter his business and accept a
position with a former competitor earning a small fraction of the stipulated
amount. It is beyond argument that the trial court was permitted to discount
Father’s purported reason for closing his business and conclude instead that
Father was merely trying to avoid his support obligations. However, it is
equally undeniable that Father’s economic struggles continued sixteen to
eighteen months later and that he demonstrated a commitment to working
sixty hours per week in order to comply with his support obligations. These
later facts belie the trial court’s tireless findings that Father is simply
attempting to circumvent his financial obligations. In fact, it strains reason
for the trial court to persist in the belief that Father would perform sixty hours
of strenuous masonry labor per week for the benefit of a former competitor if,
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as the trial court believes, he can revive his business at any time. See Trial
Court Opinion, 4/11/17, at 2 n.2. (“Father did not, however, liquidate his
business assets and, therefore maintained the ability to work on his own.”).
While the facts of the two cases differ in that the trial court made an
initial determination that Father was attempting to shirk is financial obligations
to his wife and children, our holding in Novinger is informative. Prior to
October 2015, Father operated an enterprise that appeared economically
successful until he was forced to shutter it due to the cumulative economic
circumstances of impending lawsuits by creditors and imminent penalties for
multiple years of unpaid taxes. Since that date, he has worked for two former
competitors earning $25 per hour and he attempted to mitigate the difference
in income by working overtime when available and by soliciting side jobs from
friends and family members. During the January 2017 hearing, Father
presented evidence that the circumstances surrounding the failure of his
masonry business continued to exist and that it would be impossible to
miraculously re-invigorate the once successful enterprise.
We find that the trial court’s refusal to recognize that the imputed
obligation is outdated and contrary to reality, as shown by the certified record,
is manifestly unreasonable. Particularly convincing is Father’s principled
attempt to mitigate the loss of his income and to continue to satisfy a support
obligation that is approximately seventy percent of his monthly wages. Stated
plainly, to the extent that Father could have earned $7,359.40 per month as
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the owner of a masonry business, the certified record does not sustain the
court’s decision to continue to assess that earning capacity at this juncture.
As we recognized in Novinger, supra, at 1257, “[a]t some point, the courts
should [revisit the obligor’s] true earning capacity.” Since the grounds for the
court’s use of Father’s earning capacity as the basis for determining his
support obligation, i.e., the appearance of an attempt to shirk his financial
responsibilities, have diminished since Father first stipulated to his net
monthly income, we conclude that the court abused its discretion in denying
Father’s petition to modify his support obligation. Support should be
calculated in light of Father’s eighteen month earning history as an employee
working forty to sixty hours per week rather than as the owner of a successful
business. Thus, we remand the case with instructions for the trial court to
fashion a guideline child support order utilizing Father’s net monthly income
pursuant to Pa.R.C.P. 1910.16-2 retroactive to October 24, 2016, the date
that Father filed the underlying petition.3
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3 As Father’s appeal of the allocated order relating to APL is interlocutory, the
calculation of that obligation is not affected by our decisions herein.
Hrinkevich, supra. To the extent that Father’s independent financial
obligation to Mother continues after the entry of a final divorce decree, he can
appeal the trial court’s determination at the juncture. Thomas v.
Thomas, 760 A.2d 397, 398 (Pa.Super.2000) (“[W]hen all economic matters
involved in a divorce are resolved, any support order can be reviewed and
corrected when the court finalizes the equitable division of the property.”).
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Order reversed. Matter remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
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