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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINA M. TELISKI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LANCE A. THORNTON
Appellant No. 1405 WDA 2016
Appeal from the Order Entered September 15, 2016
In the Court of Common Pleas of Erie County
Domestic Relations at No(s): NS201600393/PACSES No. 225115840
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED JUNE 29, 2017
Lance A. Thornton appeals from the September 15, 2016 order of the
Erie County Court of Common Pleas directing Thornton to pay Christina M.
Teliski1 $956.05 per month in spousal support effective March 28, 2016. We
affirm.
On April 15, 2014, the trial court assessed Thornton with an earning
capacity of $115,000 in a separate child support action filed by Lorraine
McCall.2 Thornton appealed the April 15, 2014 assessment, and this Court
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*
Retired Senior Judge assigned to the Superior Court.
1
Teliski did not file a brief with this Court.
2
The trial court explained this assessment as follows:
The assessment was based upon Mr. Thornton’s prior
employment with STNA and was the same earning capacity
(Footnote Continued Next Page)
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affirmed. See McCall v. Thornton, No. 790 WDA 2014, unpublished mem.
(Pa.Super. filed Dec. 31, 2014).
On January 14, 2016, following a support modification conference, the
Domestic Relations Section of the Erie County Court of Common Pleas
entered an interim order in McCall, assessing Thornton’s earning capacity at
$115,000. Thornton demanded a de novo hearing. At that hearing:
Mr. Thornton presented evidence indicating that his
business, RainEater, LLC, was restructured and is now Eric
Automotive Aftermarkets Holdings, Inc. In addition, Mr.
Thornton, asserting that his income is only around $50,000
per year as an employee for Eric Automotive Aftermarket
Holdings, Inc., testified that he no longer manages or
_______________________
(Footnote Continued)
set for Father on January 8, 2013 . . . As previously
explained:
[Mr. Thornton] did not challenge the $115,000.00
earning capacity assessment in January of 2013.
Furthermore, [Mr. Thornton’s] circumstances have
not changed since January of 2013. He owns and
operates RainEater now, as he did then. RainEater
allegedly operated at a loss in excess of $100,000
then as it allegedly does now. The only thing which
has changed is that [Mr. Thornton], inconsistent with
his position of lack of income, is now building a
$328,105.00 home. In sum, in early 2013 Mr.
Thornton accepted an assessment of $115,000.00
annual earning capacity, yet by the end of the year
he wanted the Court to believe that he was incapable
of such income, even though his circumstances had
not changed and he was capable of building a
$328,105.00 home.
See Opinion, June 24, 2014 at 5-6.
Trial Ct. Op., 10/26/16, at 1-2 (“1925(a) Op.”).
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leads the company, that he does not make executive
decisions and that he only retained approximately a 45%
interest in the company.
Trial Ct. Op., 10/26/16, at 2 (“1925(a) Op.”). On March 21, 2016, the trial
court entered an order finalizing the January 19, 2016 interim order.
Thornton appealed, and on December 22, 2016, this Court affirmed. 3 See
McCall v. Thornton, No. 535 WDA 2016, unpublished mem. (Pa.Super.
filed Dec. 22, 2016).
On March 28, 2016, Teliski filed a support complaint against Thornton,
seeking spousal support and alimony pendente lite (“APL”). In its opinion,
the trial court set forth the factual and procedural history of this case:
Following a May 31, 2016 conference, an Interim Order of
Court issued setting Mr. Thornton’s monthly APL obligation
as $956.05, plus $125 for arrears. The June 2, 2016
Summary of Trier of Fact issued by the conference officer
details that Mr. Thornton was assessed with a $115,000
annual gross earning capability based upon the December
3, 2014 Superior Court ruling and March 9, 2016 de novo
hearing in McCall v. Thornton. Mr. Thornton filed a
Demand for Court Hearing. Following the de novo hearing,
the Court issued its August 23, 2016 Order making the
June 2, 2016 interim order a final order. Mr. Thornton, on
September 20, 2016 filed his Notice of Appeal from the
Order.
Id.
Thornton raises one issue on appeal: “The trial court erred and
abused [its] discretion in assessing [his] income at $6,871.42 a month and
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3
Although Thornton’s brief acknowledges the importance of the
McCall case, he did not advise us that another panel of this Court rendered
a decision in that case adverse to him in December 2016.
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not assessing his income at a level consistent with income taxes and pay
records.”4 Thornton’s Br., Stmt. of Question Involved (suggested answer
omitted).5 Our standard of review in support matters is as follows:
[T]his 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 . . .
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.
W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (quoting Summers
v. Summers, 35 A.3d 786, 788 (Pa.Super. 2012)).
Thornton argues that the trial court incorrectly calculated his earning
capacity. However, Thornton admits that “this identical issue [was] before
this Court regarding [his] earning capacity” in McCall, and that “the trial
court at the [de novo hearing] noted that it would consider the evidence
from the earlier case in arriving at a decision in this case.” Thornton’s Br.,
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4
In his Pennsylvania Rule of Appellate Procedure 1925(b) statement,
Thornton raised issues regarding collateral estoppel between the child
support matter with Ms. McCall and the instant appeal. However, Thornton
has expressly abandoned these issues on appeal. See Thornton’s Br. at 5.
5
Thornton’s brief contains a table of contents with incorrect page
numbers, and his brief is unpaginated.
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Stmt. of the Case, ¶ 3. At the de novo hearing, Thornton admitted the
similarities between McCall and this case:
[THORNTON’S COUNSEL]: . . . Right now, Mr. – in another
case, Mr. Thornton’s income capability is on appeal to the
Superior Court.
THE COURT: That’s one of my cases, right?
[THORNTON’S COUNSEL]: Yes, ma’am. I didn’t [k]now if
– because the Superior Court is looking at that now,
whether that’s something that should be stayed until that
decision is made? And again, I just brought that – wanted
to bring that to the Court’s attention, not normally dealing
with an issue sort of like that, you know, back-to-back kind
of issue.
THE COURT: Yes, I understand what the position is. And
our support conference officer in this case utilized the
income capability from that previous case –
[THORNTON’S COUNSEL]: Yes.
THE COURT: -- that is currently up on appeal.
[THORNTON’S COUNSEL]: Yes. So I don’t know if this
should be stayed until the Superior Court makes a decision
on that, Your Honor.
THE COURT: I understand what the issue is with regard to
that. And I understand that Mr. Thornton’s argument in
this case is the same as the argument in the case
that’s up on the Superior Court –
[THORNTON’S COUNSEL]: Yes, Your Honor.
THE COURT: -- and that is, what is his actual income.
[THORNTON’S COUNSEL]: Yes, Your Honor.
...
THE COURT: . . . I understand what your issue is,
[counsel], so really the reason we’re here today is Mr.
Thornton’s income capability. And your argument is that
this proceeding should be stayed pending the resolution –
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[THORNTON’S COUNSEL]: Yes, Your Honor.
THE COURT: -- of the Superior Court, and if the Superior
Court deems that my determination in the prior case was
incorrect, then it’ll be remanded for a rehearing on income
calculations.
[THORNTON’S COUNSEL]: Yes, Your Honor.
THE COURT: And if I am upheld by the Superior
Court, then, in fact, the income calculation that I
establish from Mr. Thornton will be in place both for
that case and then it would be in place for this case.
[THORNTON’S COUNSEL]: Yes, Your Honor.
N.T., 8/5/16, at 3-5.
In deciding Thornton’s prior appeal in McCall, this Court addressed
Thornton’s claims and the trial court’s rationale for setting Thornton’s
earning capacity at $115,000 as follows:
[Thornton] complains that the trial court erred when it
assessed his earning capacity based on a job that he held
years ago and ignored all evidence that his current
company is going through hard times and his income is
diminished. He concedes that when he worked for
NASCAR and STNA, he made a high income. However,
when he lost his job at STNA when his division was sold,
he started his own company, RainEater. [Thornton]
further asserts that RainEater filed for bankruptcy. He was
able to keep RainEater going but could not make it grow.
He then transferred his shares to a group of investors and
became an employee with a 45% ownership stake. At the
hearing before the trial court, [Thornton] presented pay
stubs to demonstrate that he earns a gross bi-weekly
salary of $2,667.24. Brian Hickey, the controller for the
new company, testified that [Thornton] does not have
access to company funds and that the company was
operating at a loss. According to [Thornton], the trial
court abused its discretion when it determined that
[Thornton] failed to show any material or substantial
change of circumstances since the April 15, 2014 order.
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The trial court explained its determination:
The Court remains unconvinced, however, that
[Thornton’s] reported earnings present an accurate
picture of his actual income in connection with his
business interests. As Brian Hickey testified, Erie
Automotive Aftermarket Holdings, Inc. was created
for the purpose of overtaking RainEater. While
RainEater was restructured, [Thornton] clearly
remains more than just an employee. First,
inconsistent with [Thornton’s] testimony of a 45%
interest in Erie Automotive Aftermarket Holdings,
Inc., both the Form 2553 Election by a Small
Business Corporation for Erie Automotive
Aftermarket Holdings, Inc. and the minutes from the
October 1, 2015 Organizational Meeting of
Shareholders and Board of Directors indicate that
[Thornton] is an 82% shareholder of Erie Automotive
Aftermarket Holdings, Inc. Moreover, while
[Thornton] allegedly reports to Jeff Fatica, who is the
CEO, Jeff Fatica holds only 4% ownership in the
Company and he and all other officers of Erie
Automotive Aftermarket Holdings, Inc. serve at the
pleasure and under the direction and control of the
Board of Directors. See Exhibit 7, Bylaws of Erie
Automotive Aftermarket Holdings, Inc.; see also Erie
Automotive Aftermarket Holdings, Inc[.],
Organizational Meeting minutes, October 1, 2015.
Meanwhile, [Thornton] is one of only five voting
members of the Board of Directors of Erie
Automotive Aftermarket Holdings, Inc. See Erie
Automotive Aftermarket Holdings, Inc[.],
Organizational Meeting minutes, October 1, 2015.
Furthermore, [Thornton] admitted in his March 2016
testimony that, despite his lack of a formal
leadership role in Erie Automotive Aftermarket
Holdings, Inc., the employees of the company look
up to him for guidance. This is clear as Brian Hickey,
who was [Thornton’s] only other witness and
supposedly serves as the Controller for the new
company, lacked any knowledge about ownership
interests in the company. Mr. Hickey attempted to
explain his lack of insight as his role serving more of
the day to day operations and employee payroll type
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of issues, yet [Thornton] even had to correct Mr.
Hickey on how payment for employee insurance
works. In that regard, the Court is not convinced
that [Thornton] is merely an employee of Erie
Automotive Aftermarket Holdings, Inc. with only
$50,000 in income.
Accordingly, while the structure of [Thornton’s]
business may have changed, the Court is not
convinced that it has changed in a manner which
changed [Thornton’s] income. [Thornton] has not
been forthright regarding his interest and role with
the business, continuing the appearance that his
actual income is sheltered. In that regard,
[appellant] failed to prove a material and substantial
change of circumstances since entry of the April 15,
2014 Order.
Trial court opinion, 6/6/16 at 4-5.
Essentially, the trial court failed to find appellant
credible. As fact-finder, that is the trial court’s
prerogative. It is not the role of this court to reweigh the
evidence and make its own credibility determinations. See
Habjan v. Habjan, 73 A.3d 630, 644 (Pa.Super. 2013).
Further, the trial court’s conclusion that appellant owned
82% of Erie Aftermarket Holdings, Inc., was supported by
the evidence in the record. Because appellant was not
found credible, he failed to meet his burden of proof.
Here, appellant has failed to establish that the trial court
abused its discretion when it adopted the interim order as
final.
No. 535 WDA 2016, unpublished mem. at 5-7.6
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6
Courts and parties ordinarily may not rely upon or cite an
unpublished memorandum from this Court. See 210 Pa. Code § 65.37.
However, we may do so here because Thornton, who was a party in the
McCall case, agreed during the trial court proceedings that the outcome of
this case would be controlled by this Court’s disposition of the McCall
appeal.
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The calculation of earning capacity is based on the support guidelines
under Pennsylvania Rule of Civil Procedure 1910.16, which are used
regardless of whether the support ordered is paid to a child or a spouse.
See Strawn v. Strawn, 664 A.2d 129, 132 (Pa.Super. 1995) (“Spousal
(and child) support are to be awarded pursuant to a statewide guideline as
established by general rule by the Pennsylvania Supreme Court”); Pa.R.C.P.
1910.16-1 (“[T]he support guidelines determine the amount of support
which a spouse or parent should pay based on the parties’ combined
monthly net incomes as defined in Pa.R.C.P. No. 1910.16-2”). In light of
Thornton’s admissions before the trial court and this Court, our decision on
the merits in McCall, and the support guidelines, we agree with our prior
reasoning in McCall and affirm the trial court’s order.7
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7
In its Rule 1925(a) opinion, the trial court found that the allegations
of error with respect to the calculation of Thornton’s earning capacity “are
without merit for the reasons set forth by the Court in its June 6, 2016
Opinion in McCall v. Thornton[,]” because:
[a]ll of the . . . allegations relate to the assessment of Mr.
Thornton’s income and are the same allegations made by
Mr. Thornton regarding the same income assessment on
appeal in McCall v. Thornton at 535 WDA 2016. This is
consistent with the assertion of Mr. Thornton’s counsel at
the August 5, 2016 de novo hearing in [this case] that his
evidence and position regarding Mr. Thornton’s income
was the same as that presented regarding his income in
McCall v. Thornton.
1925(a) Op. at 4-5 (internal citations omitted).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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