Hamaday, E. v. Hamaday, L.

J-S25001-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

ERIC J. HAMADAY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LORI D. HAMADAY : No. 145 EDA 2023

Appeal from the Order Entered December 14, 2022
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2017-15205

LORI D. HAMADAY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC J. HAMADAY :
:
Appellant : No. 239 EDA 2023

Appeal from the Order Entered December 20, 2022
In the Court of Common Pleas of Montgomery County Domestic Relations
at No(s): 2017-DR-01582,
PACSES #: 383116674

MEMORANDUM PER CURIAM: FILED SEPTEMBER 12, 2023

In these consolidated appeals,1 Eric J. Hamaday (Father) appeals pro se

from the December 14, 2022 order denying his petition for contempt of

custody against Lori D. Hamaday (Mother) and the December 20, 2022 order

denying his exceptions to the hearing officer’s August 11, 2022 child support

____________________________________________

1 On February 14, 2023, this Court consolidated the appeals sua sponte
pursuant to Pa.R.A.P. 513. Order, 2/14/23.
J-S25001-23

order. In the appeal at 145 EDA 2023, Father claims that the trial court was

biased against him and erred by denying his petition for contempt without a

hearing. In the appeal at 239 EDA 2023, Father claims that the trial court

erred by denying his exceptions to the trial court’s award of child support. We

affirm.

We adopt the trial court’s summary of the facts underlying this matter.

See Trial Ct. Op., 4/14/23, at 1-7. Relevant to these appeals, Father and

Mother are the parents of two children: C.H. (born in November of 2011) and

G.H. (born in April of 2013) (collectively, Children). The parties married in

2009. In 2017, Father filed a complaint for custody and Mother filed a

complaint for child support and divorce.2

In the custody matter, the trial court entered a final order granting the

parties shared legal custody and shared physical custody of Children on

September 13, 2019. The custody order also directed the parties to

participate in family counseling, which would address, among other things,

Children’s involvement in extracurricular activities and/or sports. Trial Ct.

Order, 9/13/19, at 6-7, R.R. at 33a-34a.3

On September 1, 2022, Father filed a petition for contempt alleging that

Mother had violated the 2019 custody order by unilaterally enrolling Children

in karate lessons without Father’s consent. R.R. at 426a. Father contended

____________________________________________

2 The trial court entered a divorce decree on December 23, 2019.

3 We may refer to the reproduced record for the parties’ convenience.

-2-
J-S25001-23

that Mother violated the provisions of the custody order that awarded the

parties shared legal custody of Children and required the parties to discuss

Children’s involvement in extracurricular activities during family counseling.

Id. Father claimed that the parties discussed Children’s participation in karate

during their court-ordered family counseling, but they could not reach an

agreement over sharing the cost. R.R. at 427a. Father stated that he would

“not object to the children attending karate at [Mother’s] expense[,]” but

objected so long as he would share the cost of Children’s karate lessons. Id.

The trial court heard argument on Father’s contempt petition during a

conference on November 7, 2022. Although the trial court briefly questioned

Mother, neither party conducted any cross-examination. On December 14,

2022, the trial court dismissed Father’s contempt petition.4 R.R. at 398a-

400a. Father filed a timely notice of appeal from that order, which this Court

docketed at 145 EDA 2023.

In the support proceedings, the trial court entered a memorandum and

order on July 24, 2020 directing Father to pay Mother $944.43 per month in

____________________________________________

4 Father filed a timely motion for reconsideration on December 26, 2022. The
trial court did not rule on this motion. Father then filed his notice of appeal in
the custody matter on January 3, 2023. The trial court’s failure to address
Father’s motion for reconsideration does not affect our jurisdiction over this
appeal. See Interest of C.B., 264 A.3d 761, 769 n.16 (Pa. Super. 2021)
(noting that the “filing of motion for reconsideration does not toll thirty-day
appeal period, unless trial court enters order expressly granting
reconsideration within thirty days of entry of appealable order” (citation
omitted)), appeal denied, 270 A.3d 1098 (Pa. 2022).

-3-
J-S25001-23

child support.5 On February 16, 2021, Father filed a petition to modify support

seeking a reduction in his support obligation based on changes in both parties’

incomes. Following a hearing on July 26, 2022, the support hearing officer

filed a report and recommendation, which the trial court entered as an interim

support order on August 11, 2022. R.R. at 347a-52a.

The hearing officer calculated Mother’s income based on her 2020 and

2021 tax returns and her 2022 paystubs. R.R. at 347a. The hearing officer

found that Father had voluntarily decreased his income because Father had

voluntarily left his prior employment with the Internal Revenue Service and

was now self-employed as a tax preparer. R.R. at 348a. Therefore, the

hearing officer used Father’s prior income to calculate his support obligation.

Id. The interim order set Father’s support obligation as $997 per month for

2021 and as $983 per month for 2022 and going forward. R.R. at 349a. The

hearing officer found that Mother pays $178 every two weeks for Children’s

karate lessons, and Father’s support obligation includes a share of the costs

of Children’s karate lessons. R.R. at 348a-49a.

Father filed timely exceptions to the August 11, 2022 interim support

order. The trial court denied Father’s exceptions on December 20, 2022. R.R.

____________________________________________

5 In the July 24, 2020 memorandum and order, the trial court denied Father’s

exceptions to the March 3, 2020 interim support order and made that interim
order a final support order. Father filed a timely appeal from the July 24,
2020 order. E.D.H. v. L.D.H., 1711 EDA 2020, 2021 WL 4059937 (Pa. Super.
filed Sept. 7, 2021) (unpublished mem.). This Court affirmed on September
7, 2021, and our Supreme Court denied further review on May 25, 2022. Id.
at *7, appeal denied sub nom. E.J.H. v. L.D.H., 279 A.3d 35 (Pa. 2022).

-4-
J-S25001-23

at 401a-06a. Father filed a timely notice of appeal from that order, which this

Court docketed at 239 EDA 2023.

Father filed a court ordered Rule 1925(b) statements at each trial court

docket number.6 The trial court issued a single Rule 1925(a) opinion

addressing the issues Father raised in both appeals.7

Appeal at 145 EDA 2023

In his appeal from the December 14, 2022 order denying his petition for

contempt of custody, Father raises three issues, which we reorder as follows:

1. Did the trial court err as a matter of law and abuse its discretion
with respect to multiple statements in the order in question
(custody) and its subsequent opinion and consequently, err as
a matter of law and abuse its discretion by failing to comply
with the Judicial Code of Conduct . . .?

____________________________________________

6 In a children’s fast track appeal, “[t]he concise statement of errors
complained of on appeal shall be filed and served with the notice of appeal.”
Pa.R.A.P. 1925(a)(2)(i). Although Father filed a late Rule 1925(b) statement
in his appeal from the custody order, we decline to find waiver on this basis
as the late filing does not run contrary to an order of this Court or of the trial
court, and no party had raised any allegation of prejudice. See In re K.T.E.L.,
983 A.2d 745, 747-48 (Pa. Super. 2009).

7 We note that the trial court suggests that Father has waived the issues he

raised in his appeal from the support order because Father’s Rule 1925(b)
statement is not concise and it was difficult to discern the errors Father was
raising in that statement. Trial Ct. Op. at 23-24. Nevertheless, the trial court
addressed four claims of error. Id. at 25-34. Because the trial court was able
to address Father’s claims of error, we decline to find waiver on that basis.
See Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 319 n.3 (Pa. Super.
2015) (declining to find waiver where the appellants raised thirty-six claims
of error in their Rule 1925(b) statement, but the trial court addressed the
general issues raised and there was no evidence the appellants acted in bad
faith by filing a length Rule 1925(b) statement).

-5-
J-S25001-23

2. Did the trial court err as a matter of law and abuse its discretion
by not failing to hold a hearing prior to the issuance of a final
order?

3. Did the trial court err as a matter of law and abuse its discretion
by dismissing Father’s petition for contempt?

Father’s Brief at 7-8 (formatting altered).

Violations of the Code of Judicial Conduct

In his first issue, Father argues that the trial court violated several Rules

of the Code of Judicial Conduct, specifically Rules 1.3 (avoiding abuse of the

Prestige of Judicial Office); 2.2, (Impartiality and Fairness); 2.3 (Bias,

Prejudice, and Harassment), and 2.5 (Competence, Diligence, and

Cooperation). Id. at 23-34.

Our Supreme Court has explained that it has the “exclusive right to

supervise the conduct of all courts and officers of the judicial branch of

government pursuant to Article V, Section 10(c) of our Constitution[.]” Reilly

v. SEPTA, 489 A.2d 1291, 1298 (Pa. 1985), overruled on other grounds by

Drake v. Pa. Nat. Mut. Cas. Ins. Co., 601 A.2d 797 (Pa. 1992); see also

Commonwealth v. Kearney, 92 A.3d 51, 62 (Pa. Super. 2014) (explaining

that “enforcement of the Code of Judicial Conduct is beyond the jurisdiction of

this Court” (citing Reilly, 489 A.2d at 1298)).

Further, our Supreme Court has stated:

Perceived violations of either [the Code of Judicial Conduct or the
Code of Professional Conduct, which governs the conduct of
attorneys] do not permit the trial courts or the intermediate
appellate courts to alter the rules of law, evidentiary rules,
presumptions or burdens of proof. More importantly, violations of

-6-
J-S25001-23

those Codes are not a proper subject for consideration of the lower
courts to impose punishment for attorney or judicial misconduct.

Reilly, 489 A.2d at 1299.

Therefore, this Court lacks jurisdiction to hear any claims that the trial

court violated the Code of Judicial Conduct. See id. at 1298-99; see also

Kearney, 92 A.3d at 62. To the extent that Father argues that the trial court

was biased in favor of Mother and against Father, we may consider that as

part of our abuse of discretion analysis. See Gross v. Mintz, 284 A.3d 479,

489 (Pa. Super. 2022) (explaining that an abuse of discretion occurs if the

trial court “reaches a conclusion that is the result of partiality, prejudice, bias

or ill will as shown by the evidence of record” (citation omitted)).

Father’s Contempt Petition

Father’s second and third issues are related, therefore, we will discuss

them together. Father argues that the trial court erred by denying his petition

for contempt without first holding a hearing. Father’s Brief at 49-52. Father

contends that the November 7, 2022 proceeding was not a hearing because

neither party had the opportunity to submit evidence or to cross-examine the

other party’s witnesses. Id. at 50-51 (citing 2 Pa.C.S. § 505). Additionally,

Father claims that the trial court erred in relying on J.R. v. L.T., 1394 WDA

2016, 2017 WL 4861627 (Pa. Super. filed Oct. 26, 2017) (unpublished

mem.),8 to support its decision not to hold a hearing. Id. at 51-52. Father
____________________________________________

8 We note that Father has instead cited J.R. v. L.T., 60 WDA 2017, 2017 WL

3701178 (Pa. Super. filed Aug. 28, 2017) (unpublished mem.). Compare
(Footnote Continued Next Page)

-7-
J-S25001-23

contends that the facts of J.R. and the instant case are distinguishable,

including that the petitioner in J.R. did not contest the mother’s authority to

unilaterally enroll the child in summer camp. Id. at 51. Father concludes that

the trial court erred by failing to hold a hearing on his contempt petition.

Additionally, Father argues that the trial court erred by failing to hold

Mother in contempt of the custody order. Id. at 26-28, 42-49. Specifically,

Father contends that because the parties have shared legal custody, Mother

violated the custody order by unilaterally signing Children up for karate

lessons without Father’s consent. Id. at 45-47. Father asserts that enrolling

Children in the karate school “should be considered a major, significant

decision that both parents must agree to.” Id. at 51; see also id. at 26-27

(Father claims that the karate school is an education institution because it

charges “tuition”); id. at 29 (arguing that the trial court’s conclusion that

“enrollment of children in an extra-curricular activity is not commonly

characterized as a ‘major decision’ requiring Court approval” is “absurd”

because Mother signed a three-year contract and any monetary decision

regarding the children to which both parents are expected contribute must be

considered a “major decision”). Father also asserts that Mother violated the

custody order because she did not discuss enrolling children in karate lessons

during the parties’ court-ordered co-parenting counseling sessions. Id. at 47.
____________________________________________

Father’s Brief at 51 with Trial Ct. Op. at 16 n.35. These appeals involved the
same parties, but the case cited by the trial court relates to the necessity of
holding a hearing before dismissing a petition for contempt. See J.R., 2017
WL 4861627, at *4-5.

-8-
J-S25001-23

Father concludes that the trial court erred by failing to hold Mother in contempt

of the custody order.

Initially, before addressing the merits of this issue, we must determine

whether Father has adequately developed his claim for review. This Court

may raise this issue of waiver sua sponte. See Tucker v. R.M. Tours, 939

A.2d 343, 346 (Pa. Super. 2007). “The issue of waiver presents a question of

law, and, as such, our standard of review is de novo and our scope of review

is plenary.” Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d

260, 269 (Pa. 2020) (citation omitted).

This Court has stated:

While this court is willing to liberally construe materials filed by a
pro se litigant, we note that appellant is not entitled to any
particular advantage because he lacks legal training. As our
Supreme Court has explained, any layperson choosing to
represent himself in a legal proceeding must, to some reasonable
extent, assume the risk that his lack of expertise and legal training
will prove his undoing.

Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super.

2006) (citation omitted and formatting altered).

“It is well-settled that this Court will not review a claim unless it is

developed in the argument section of an appellant’s brief, and supported by

citations to relevant authority.” In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa.

Super. 2017) (citations omitted); see also Pa.R.A.P. 2119(a), (c) (providing

that the argument section of an appellate brief shall contain discussion of

issues raised therein and citation to pertinent legal authorities and references

-9-
J-S25001-23

to the record). “Where an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived.”

M.Z.T.M.W., 163 A.3d at 465-66 (citation omitted and formatting altered).

Even constitutional claims can be waived if an appellant does not properly

develop them in his or her appellate brief “in a fashion that would enable

[appellate] review.” K.N.B. v. M.D., 259 A.3d 341, 352 n.15 (Pa. 2021)

(citations omitted). “We shall not develop an argument for an appellant, nor

shall we scour the record to find evidence to support an argument; instead,

we will deem [the] issue to be waived.” Milby v. Pote, 189 A.3d 1065, 1079

(Pa. Super. 2018) (citation omitted).

Here, Father has cited 2 Pa.C.S. § 505 in support of his claim that the

trial court erred by failing to hold a hearing on his petition for contempt.

Section 505 governs hearings before Commonwealth agencies and does not

apply to proceedings before trial courts. 2 Pa.C.S. §§ 501, 505. Additionally,

although Father contends that the facts of J.R. are distinguishable from this

case, Father has not cited any legal authority to support his argument that

the trial court must hold a hearing before dismissing a petition for contempt.

Lastly, Father has not cited any legal authority regarding shared legal

custody and decisions regarding extracurricular activities in support of his

claim that Mother violated the custody order by enrolling Children in karate

lessons without Father’s agreement. Instead, Father baldly asserts that

Children’s karate lessons are a major educational decision on which both

- 10 -
J-S25001-23

parties must agree because the parties have shared legal custody and they

must pay “tuition” for those lessons. Therefore, we conclude that Father has

waived his claims that the trial court erred by denying Father’s petition for

contempt without a hearing. See K.N.B., 259 A.3d at 352; M.Z.T.M.W., 163

A.3d at 465-66.

Appeal at 239 EDA 2023

In his appeal from the December 20, 2022 support order, Father raises

seven issues, which we reorder as follows:

1. Did the trial court err as a matter of law and abuse its discretion
when it imputed an earning capacity on Father, not using his
actual earnings for purposes of calculating child support?

2. Did the trial court err as a matter of law and abuse its discretion
in failing to apply appropriate expenses to Father’s imputed
earning capacity?

3. Did the trial court err as a matter of law and abuse its discretion
in failing to impute to [Mother] an earning capacity when the
evidence showed that she does not report all her tips and has
fluctuating income while working as much or as little as she
chooses?

4. Did the trial court err as a matter of law and abuse its discretion
by ordering Father to pay two-thirds of the children’s karate
school where he never consented, and where the expense was
not reasonable for Father given his earnings?

5. Did the trial court err as a matter of law and abuse its discretion
when it failed to order Mother to reimburse Father for her
appropriate share of the school expenses he paid for the
children?

6. Did the trial court err as a matter of law and abuse its discretion
in failing to make the effective date of the order retroactive to
when Mother’s income increased when compared to the prior
order?

- 11 -
J-S25001-23

7. Did the trial court rule in an unconstitutional manner,
conflicting with Article I, Section I of this Commonwealth’s
Constitution?

Father’s Brief at 8-10 (formatting altered).9

In reviewing Father’s appeal of the support order, our standard of review

is as follows:

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.

We further note that 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. See 23 Pa.C.S. §
4352(a); see also Pa.R.C.P. 1910.19. The burden of
____________________________________________

9 Father also argues that the trial court violated the Code of Judicial Conduct

with respect to his support case. Father’s Brief at 34-41. However, in his
statement of questions, Father only asserts that the trial court violated the
Code of Judicial Conduct with respect to the custody order. Id. at 7.
Pa.R.A.P. 2116 provides that “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby.”
Pa.R.A.P. 2116(a). Therefore, we conclude that Father has waived his claim
that the trial court violated the Code of Judicial Conduct in the support case.
See id.

Even if not waived, for the reasons explained above, this Court lacks
jurisdiction to enforce the Code of Judicial Conduct. See Reilly, 489 A.2d at
1298-99; Kearney, 92 A.3d at 62. To the extent that Father argues that the
trial court was biased in favor of Mother and against Father, we may consider
that as part of our abuse of discretion analysis. See Summers v. Summers,
35 A.3d 786, 788 (Pa. Super. 2012).

- 12 -
J-S25001-23

demonstrating a “material and substantial change” rests with the
moving party, and the determination of whether such change has
occurred in the circumstances of the moving party rests within the
trial court’s discretion.

Summers v. Summers, 35 A.3d 786, 788-89 (Pa. Super. 2012) (some

citations omitted and formatting altered).

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) (citation omitted). This Court has

explained that

[the] finding [of a hearing officer] is only advisory and not in any
way binding on the trial court. Rather, it is the sole province and
the responsibility of the [trial] court to set an award of support
and even if the evidence before the support hearing officer is
adequate to support [his or] her recommendation, the trial court
need not adopt it.

Ewing v. Ewing, 843 A.2d 1282, 1286 (Pa. Super. 2004) (citations omitted

and formatting altered); see also Sirio, 951 A.2d at 1196 (“the trial court is

obligated to conduct a complete and independent review of the evidence when

ruling on exceptions” (citation omitted)). Further, this Court, as “a reviewing

court does not weigh the evidence or determine credibility as these are

functions of the trial court.” Doherty v. Doherty, 859 A.2d 811, 812 (Pa.

Super. 2004) (citation omitted).

Calculation of Father’s Earning Capacity

Father’s first and second issues in his appeal from the support order are

related, therefore we will discuss them together. Father argues that the trial

- 13 -
J-S25001-23

court erred in determining his support obligation based on an assessment of

his earning capacity rather than his actual earnings. Father’s Brief at 62-74.

Father claims that he was entitled to a downward modification of support

based on a change in his income because he did not change employment with

for the purpose of avoiding his support obligation and he made efforts to

mitigate the loss of his income. Id. at 70-71. Father asserts that he expected

to earn nearly the same amount of money as a self-employed tax-preparer as

he did in his former position with the IRS. Id. at 63. Father contends that

the trial court failed to consider that when “circumstances beyond [Father’s]

control” affected his earnings as a tax preparer, he took on additional tax

preparation work from another source. Id. at 64, 66-70. Father concludes

that the trial court should have used his actual earnings and not an earning

capacity based on his prior salary to calculate his support obligation.

Additionally, Father argues that the trial court erred by failing to adjust

his earning capacity downward to account for certain expenses he would have

incurred if he remained in his old occupation. Id. at 74-77 (citing Pa.R.C.P.

1910.16-2(d)(4)(i)(D)). Specifically, Father asserts that if remained

employed at the IRS full-time, he would have incurred costs for insurance,

childcare, and his court-ordered counseling in the amount of $975 per month.

Id. at 75 (citing Father’s Br. in Supp. of Exceptions, 10/7/22, at 9, R.R. at

361a). Father contends that if this Court affirms the trial court’s decision to

base his support obligation on his earning capacity rather than his actual

- 14 -
J-S25001-23

earnings, his earning capacity must be adjusted to reflect these costs. Id. at

77.

It is well-established that

a person’s support obligation is determined primarily by the
parties’ actual financial resources and their earning capacity.
Although a person’s actual earnings usually reflect his [or her]
earning capacity, where there is a divergence, the obligation is
determined more by earning capacity than actual earnings.
Earning capacity is defined as the amount that a person
realistically could earn under the circumstances, considering his
[or her] age, health, mental and physical condition, training, and
earnings history.

Mencer v. Ruch, 928 A.2d 294, 299 (Pa. Super. 2007) (citation omitted).

Additionally, this Court has held:

To modify a support obligation based upon the reduced income, 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 [the]
petitioner’s efforts to mitigate any income loss.

Effectively, [the party] 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. 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. . . .

Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007) (citations omitted and

formatting altered); see also Pa.R.C.P. 1910.16-2(d)(1)(ii) (stating that

“[t]he trier-of-fact shall not downwardly adjust a party’s net income if the

trier-of-fact finds that . . . the party voluntarily assumed a lower paying job,

quit a job, left employment, changed occupations, changed employment

- 15 -
J-S25001-23

status to pursue an education, or employment is terminated due to willful

misconduct”).

Pa.R.C.P. 1910.16-2 further provides that “[w]hen a party willfully fails

to obtain or maintain appropriate employment, the trier-of-fact may impute

to the party an income equal to the party’s earning capacity.” Pa.R.C.P.

1910.16-2(d)(4)(i). Also, “[w]hen the trier-of-fact imputes an earning

capacity to a party who would incur childcare expenses if the party were

employed, the trier-of-fact shall consider reasonable childcare responsibilities

and expenses.” Pa.R.C.P. 1910.16-2(d)(4)(i)(D).

In her report and recommendation, the hearing officer made the

following findings of fact:

Father is currently self-employed as a tax preparer. Father is not
an accountant.

In 2019, after 18 years with the Internal Revenue Service, Father
resigned and went to work for himself. Father cites the lack of
advancement opportunities, dissatisfaction with his co-workers,
and the opportunity to be self-employed.

Father felt it was better to work fewer hours during his custodial
time.

* * *

Father relies on the custody evaluation dated January 21, 2019
which states (per Father) that the children would benefit if Father
had a flexible schedule. Father could not direct the hearing officer
to the specific page of the report where this is stated. Additionally,
Father argues if he is held to his prior earnings, there should
continue to be a reduction for health insurance costs, even though
he is providing insurance at no cost. These arguments have no
merit.

- 16 -
J-S25001-23

Father voluntarily left his prior employment to pursue self-
employment and voluntarily decreased his income. Father is held
to his prior earnings of $3,997.00 net per month.

Per Rule 1910.16-2(d), the trier of fact shall not downwardly
adjust a party’s net income if the party voluntarily quit a job, left
employment, or changed employment status.

Father may pursue self-employment but he has the burden to
maintain his prior income level. If Father’s tax preparation season
has ended, Father can/could look for other work to supplement
his income.

R.R. at 348a.

Further, the trial court explained:

Here, Father worked for the IRS for 18 years before leaving to
start his own business. He cited several reasons why he left his
position at the IRS revolving around his dissatisfaction with the
position. Father also specifically stated that he left the position in
order to spend more time with his children. In support of this
proposition, he cites the January 21, 2019 custody evaluation by
Dr. Gerald Cooke [(the evaluator)] from the parties’ custody case.

The evaluator made mention in the report that Father should
maintain a flexible schedule to spend more time with his children.
Father claims that he took this as a suggestion by the evaluator
to quit his job at the IRS and start his own business in order to
have more time to spend with his children. However, upon review
of the evaluation, this mention of Father’s work schedule was in
no way meant to be a suggestion that Father should quit his job.
It was simply meant as a suggestion that the evaluator suggested
Father work more on his non-custodial days and less on his
custodial days (particularly during the busy tax season) so he can
make more of the time he has with his children. . . .

The [hearing] officer stated that Father has a continuing obligation
to maintain a similar income to what was originally designated
and, due to this, did not downwardly adjust Father’s income
pursuant to Rule [1910.16-2(d)]. It also does not go unnoticed
that Father changed employment voluntarily during the exact
same time as all the support litigation was transpiring.

- 17 -
J-S25001-23

When reviewing an award of support, a [hearing officer’s] report
and recommendation, although only advisory, is to be given the
fullest weight and consideration. The hearing officers’ reports are
made with the benefit of having heard and seen witnesses and are
entitled to great consideration, and should not be lightly
disregarded.

The undersigned is satisfied that the [hearing] officer properly
carried out her duty to determine whether assigning Father an
earning capacity was appropriate. Therefore, it was not an error
to uphold her assignment of Father’s earning capacity.

Trial Ct. Op. at 27-29 (footnotes omitted and some formatting altered).

Based on our review of the record, we conclude that the trial court did

not abuse its discretion by dismissing Father’s exceptions related to his

earning capacity. See Summers, 35 A.3d at 788. To the extent Father

challenges how the hearing officer and the trial court weighed the evidence

presented at the support hearing, this Court will not reweigh the evidence or

substitute its judgment for that of the fact-finder on appeal. See Sirio, 951

A.2d at 1195; Doherty, 859 A.2d at 812. The record supports the trial court’s

conclusion that Father voluntarily decreased his income; therefore, we discern

no abuse of discretion in imputing to Father an earning capacity equal to his

prior salary when calculating his support obligation. See Ney, 917 A.2d at

866; Pa.R.C.P. 1910.16-2(d)(1)(ii), (d)(4)(i).

As for Father’s claim that the trial court failed to consider his reasonable

childcare expenses in calculating his earning capacity, we conclude that Father

has waived this claim because he failed to support his argument with relevant

references to the record. See Pa.R.A.P. 2119(c); see also M.Z.T.M.W., 163

A.3d at 465-66. The only source for the adjustment of $975 in monthly

- 18 -
J-S25001-23

childcare costs claimed by Father are the allegations in his appellate brief as

well as a brief that he previously filed with the trial court. However,

statements in briefs do not constitute evidence. See, e.g., Lin v. Bd. of

Revision of Taxes of City of Philadelphia, 137 A.3d 637, 645-46 (Pa.

Cmwlth. 2016) (stating that “it is axiomatic that statements in briefs or legal

memoranda do not constitute evidence of record upon which decisions can be

based” (citations omitted));10 Commonwealth v. Evans, 473 A.2d 606, 609

(Pa. Super. 1984) (holding an averment of fact in a brief filed with the trial

court could not substitute for evidence). Because this Court will not “scour

the record to find evidence to support an argument[,]” we find that Father has

waived his claim that the trial court improperly calculated his earning capacity.

See Milby, 189 A.3d at 1079; see also Pa.R.A.P. 2119(c); M.Z.T.M.W., 163

A.3d at 465-66.

Calculation of Mother’s Earning Capacity

In his third issue, Father argues the trial court erred by not imputing an

earning capacity to Mother greater than the income documented in Mother’s

tax returns and paystubs. Father’s Brief at 81-87, 89-90. Father claims that

the trial court failed to consider: (1) Mother can work for more hours per week

than she does; (2) Mother does not report all of the tips she receives as a

____________________________________________

10Although decisions of the Commonwealth Court are not binding on this
Court, they may provide persuasive authority. See Maryland Cas. Co. v.
Odyssey Contracting Corp., 894 A.2d 750, 756 n.2 (Pa. Super. 2006).

- 19 -
J-S25001-23

hairdresser on her tax returns; and (3) Mother received disability payments

in 2021 while recovering from surgery. Id. at 81-87.

In her report and recommendation, the hearing officer made the

following findings of fact:

Mother’s 2021 tax return shows gross wages of $15,593.00 and
she received a tax refund of $6,620.00. Mother had hand surgery
in 2021 and did not work a full year. Mother essentially paid no
federal taxes in 2021.

* * *

Father believes Mother is underemployed/under reporting her
income and requests she be held to an earning capacity of
$2,932.00 per month net, even though it does not appear Mother
has ever earned this amount of income.

R.R. at 347a.

Further, the trial court explained:

At the support hearing on July 26, 2022, Father asserted that
Mother should be held to an earning capacity of $2,932 per month.
This is due to the fact that he believes Mother is underemployed
and otherwise not reporting the full amount of her income on her
taxes. However, the [hearing] officer indicated in her report that
it appeared that Mother has never earned that level of income.

The [hearing] officer once again thoroughly addressed her
determination of Mother’s income. . . .

Ultimately, the [hearing] officer calculated Mother’s income as
follows: $1,813 per month for 2021 and $2,258 per month in
2022. Notably, Mother most recent income finding in 2022 was
an increase of Mother’s income findings from the prior March 3,
2020 Order which was $1,891.08 per month.

* * *

The undersigned is satisfied that the [hearing] officer heard the
testimony and analyzed the evidence presented to her and, as a
result, came to well-reasoned conclusion as to Mother’s income

- 20 -
J-S25001-23

findings. Father’s numerous arguments that the hearing officer
erred in calculating Mother’s income is without merit.

Trial Ct. Op. at 30-31 (some formatting altered).

Based on our review of the record, we conclude that the trial court did

not abuse its discretion by dismissing Father’s exceptions related to Mother’s

earning capacity. See Summers, 35 A.3d at 788. Father again challenges

how the hearing officer and the trial court weighed the evidence presented at

the support hearing, and this Court will not reweigh the evidence or substitute

its judgment for that of the fact-finder on appeal. See Sirio, 951 A.2d at

1195; Doherty, 859 A.2d at 812.11 For these reasons Father is not entitled

to relief on this issue.

Ordering Father to Pay for Children’s Karate Lessons

In his fourth issue, Father argues the trial court erred in ordering him to

pay a share of the costs of Children’s karate lessons as part of his child support

obligation. Father’s Brief at 52-57. Specifically, Father contends that the trial

court erred by ordering that Father to repay Mother two-thirds the costs of

Children’s karate lessons where Father did not consent to enroll them in those

classes and the custody order does not direct Children to attend those lessons.

____________________________________________

11 Additionally, while Father cites to Mother’s testimony that she received
disability benefits of at least $1,700 in 2021, Father has not cited any record
evidence indicating that these benefits were omitted from the trial court’s
calculation of Mother’s 2021 income using her tax returns. See Milby, 189
A.3d at 1079 (explaining that this Court will not “scour the record to find
evidence to support an argument” and instead deem the issue to be waived
(citation omitted)). Therefore, Father’s claim regarding Mother’s disability
benefits is waived. See M.Z.T.M.W., 163 A.3d at 465-66.

- 21 -
J-S25001-23

Id. at 53. Father acknowledges that pursuant to Pa.R.C.P. 1910.16-6(d)(2),

a support order can apportion additional expenses for Children’s

extracurricular activities among the parties if those expenses are reasonable

under the parties’ circumstances. Id. at 53-54. However, Father contends

that Rule 1910.16-6 must be read in conjunction with the current custody

order, which Father asserts requires that the parties discuss Children’s

participation in extracurricular activities during co-parenting counsel and both

parties agree to enroll Children in activities. Id. at 54-55. Therefore, Father

concludes that the trial court erred in denying his exceptions to the interim

support order directing Father to reimburse Mother for Children’s karate

lessons.12

Father has not cited legal authority to support his claim that a support

obligation for the costs of extracurricular activities under Pa.R.C.P. 1910.16-

6(d)(2) must be interpreted in conjunction with the existing custody order.

Further, Father’s support argument relies on his interpretation that the 2019

custody order requires that both parties must agree to enroll Children in

extracurricular activities. As discussed above, Father waived his claim that

Mother was in contempt of the custody order because he failed to support it

with citation to and discussion of legal authorities regarding shared legal
____________________________________________

12 Father also argues that ordering him to pay for Children’s karate lessons is

not reasonable under the circumstances because the amount is beyond what
he can afford based on his current income. Father’s Brief at 55-56. As stated
above, we discern no abuse of discretion in the trial court’s conclusion that
Father voluntarily decreased his income and imputing to Father an earning
capacity equal to his prior salary.

- 22 -
J-S25001-23

custody and decisions regarding extracurricular activities. Therefore, Father’s

claim that the trial court erred by ordering him to contribute to the costs of

Children’s karate lessons is waived and no relief is due. See M.Z.T.M.W.,

163 A.3d at 465-66.

Reimbursement for Educational Expenses and Effective Date of Order

Father’s fifth and sixth issues relate to his claims that the trial court

erred by imputing an earning capacity to him based on his prior salary and

failing to impute an earning capacity to Mother greater than her documented

income. Therefore, we will discuss these issues together. In his fifth issue,

Father argues the trial court erred by ordering Mother to reimburse Father

$160 for Children’s educational expenses. Father’s Brief at 88-89. Father

argues that the trial court erred by using the incorrect total amount for

Children’s educational expenses in its support order. Id. at 88. Father further

contends that the trial court erred in awarding Father $160 in reimbursement

because the amount of reimbursement should be calculated using what Father

claims to be Mother’s earning capacity and Father’s actual income. Id.

In his sixth issue, Father argues that the trial court erred by not making

the support order retroactive to January 1, 2019 with respect to Mother’s

income. Id. at 77-81. Father contends that he is entitled to an order that is

retroactive to a date prior to the date on which he filed his petition to modify

because Mother misrepresented her earnings by not reporting all the tips she

receives on her paystubs and tax returns and Mother failed to notify the

domestic relations section of her increased income in 2020. Id. at 78-80.

- 23 -
J-S25001-23

For the reasons stated above, we concluded that Father’s claims

regarding both his and Mother’s earning capacities are meritless or waived,

therefore, we conclude that Father’s related claims that Mother should pay a

greater share of Children’s educational expenses and the support order should

be retroactive to January 1, 2019 are meritless and no relief is due.

Constitutional Violations

In his final issue, Father essentially argues that the trial court’s support

order improperly assigned Father an earning capacity based on his previous

occupation and improperly adjusted Father’s earning capacity for reasonable

childcare expenses by requiring Father to pay for two-thirds of Children’s

karate school fees in violation of Father’s right to the pursuit of happiness

under Article I, Section I of the Pennsylvania Constitution. Father’s Brief at

59-61. Father also contends that the requirement that he pay for Children’s

karate lessons violates Article I, Section II of the Pennsylvania Constitution

which provides that governments are instituted for the peace, safety, and

happiness of the people. Id. at 56-57.

Father has not cited legal authority to support his claim that essentially,

assigning an earning capacity based on his previous occupation for which the

trial court upheld the support hearing officer’s finding that Father voluntarily

reduced his income that impacted his obligation to pay for a portion of

Children’s extracurricular activities violates his constitutional rights.

Therefore, we conclude that Father has waived his constitutional claim

regarding the support order and no relief is due. See Trial Court’s Op. at 25-

- 24 -
J-S25001-23

29; see also K.N.B., 259 A.3d at 352 n.15; M.Z.T.M.W., 163 A.3d at 465-

66.

Conclusion

Accordingly, we conclude that Father’s issues are waived, meritless,

and, or relate to issues that are outside this Court’s jurisdiction as discussed

herein. For these reasons, we affirm the trial court’s orders.

Orders affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2023

- 25 -