Bochkareva, A. v. Bochkarev, V. ( 2015 )

J-A28040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANASTASIA BOCHKAREVA A/K/A IN THE SUPERIOR COURT OF
BOCHKAREV, PENNSYLVANIA
Appellant
v.
VIATCHESLAV BOCHKAREV,
Appellee No. 2924 EDA 2014
Appeal from the Order Entered August 28, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2009-05232 PACSES #285110953
BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 01, 2015
Appellant, Anastasia Bochkareva, also known as Anastasia Bochkarev1
(“Mother”), appeals from the order entered on August 28, 2014, that
disposed of her motion for modification of child support. We affirm.
Mother and Viatcheslav Bochkarev (“Father”) were born in Russia,
were married in Russia in 2003, and later moved to the United States. N.T.,
5/2/14, at 165; Trial Court Memorandum, 8/28/14, at 2. Two children were
born of the marriage. Trial Court Memorandum, 8/28/14, at 2. In 2008,
Father lost his job at Morgan Stanley in the United States. Id. The parties
planned to return to Russia with their two children. Id. Father obtained
____________________________________________
1
“Bochkareva” is the feminine form of the family name “Bochkarev.” N.T.,
5/2/14, at 22-23.
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employment at Penta Investments in Russia, and he returned to Russia in
August of 2008. Id. While Mother had planned on returning to Russia with
the children, Mother instead filed for divorce in Montgomery County in
February of 2009. Id. Mother and Father are now divorced. Id. Father
continues to reside in Russia, and Mother and the children continue to reside
in the United States. Id. Father intends to remain in Russia, and Mother
concedes this point. Id.
On September 17, 2009, Mindy A. Harris, Esquire,
conference officer in support, found [F]ather, a resident of
Russia, considering his background, education and experience,
with a net earning capacity of $2,176 per month and [M]other
with a net income, after legal deductions, of $1,841 per month.
Ms. Harris[’] recommendation was [Father] to pay child support
for two children in the amount of $618 per month, plus $81 per
month for medical insurance contribution, for a total of $699 per
month. Unreimbursed medical expenses were to be paid 54% by
[F]ather and 46% by [M]other. The recommendation became an
order on September 21, 2009. Neither side filed exceptions from
this order.
On July 10, 2012, [M]other filed a petition to modify the
September 21, 2009 order based on a change of circumstances.
Mindy A. Harris, Esquire, addressed the matter again and found,
on April 17, 2013, [F]ather with a net income of $1,383.70 per
month and [M]other with a net income of $4,720.52 per month.
Ms. Harris’ recommendation was an order against father of $485
per month for two children, $35.23 per month for medical
insurance contribution, and $223.60 per month for child care, for
a total support of $743.83 per month. Unreimbursed medical
expenses were to be paid 23% by [F]ather and 77% by
[M]other. The recommendation became an order on April 22,
2013. Mother filed exceptions from the support order on May 8,
2013.
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Trial Court Memorandum, 8/28/14, at 1-2. Following a hearing, the trial
court entered an order on August 28, 2014, which provides, in relevant part,
as follows:
AND NOW, this 28th day of August, 2014, after hearing
and briefs, the following is ORDERED:
1. For the period of July 10, 2012 through December 31, 2012
(1) Father’s net income is $1,214 net per month.
(2) Mother’s net income is $3,716 net per month.
(3) Father shall pay child support as follows:
(i) $336.00 per month for 2 children;
(ii) $49.20 per month for medical
insurance contribution $385.20 per
month TOTAL
(4) Mother shall provide medical insurance for the
children.
(5) Mother shall pay the first $250 annually for
unreimbursed medical expenses incurred for each
child.
(6) Unreimbursed medical expenses that exceed
$250 annually for each child shall be paid 24.6% by
father and 75.4% by mother.
2. For the period of January 1, 2013 through December 31, 2013
(1) Father’s net income is $1,214 net per month.
(2) Mother’s net income is $5,949 net per month.
(3) Father shall pay child support as follows:
(i) $279 per month for 2 children
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(ii) $33.88 per month for medical
insurance contribution $312.88 per
month TOTAL
(4) Mother shall provide medical insurance for the
children.
(5) Mother shall pay the first $250.00 annually for
unreimbursed medical expenses incurred for each
child.
(6) Unreimbursed medical expenses that exceed
$250.00 annually for each child shall be paid 16.94%
by [F]ather and 83.06% by [M]other.
3. For the period January 1, 2014 forward:
(1) Father’s net income is $1,214 net per month.
(2) Mother’s net income is $5,298 net per month.
(3) Father shall pay child support as follows:
(i) $291.00 per month for 2 children
(ii) $37.28 per month for medical
insurance contribution $328.28 per
month TOTAL
(4) Mother shall provide medical insurance for the
children.
(5) Mother shall pay the first $250.00 annually for
unreimbursed medical expenses incurred for each
child.
(6) Unreimbursed medical expenses that exceed
$250.00 annually for each child shall be paid 18.64%
by [F]ather and 81.36% by [M]other.
(7) Any and all arrears are due and payable
immediately and obligor shall pay $31.00 per month
on arrears with each periodic payment. All terms of
this order are subject to collection and/or
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enforcement by contempt proceedings, credit bureau
reporting, tax refund offset certification, driver’s
license revocation, and the freeze and seize of
financial assets. These enforcement/collection
mechanisms will not be initiated as long as the
obligor does not owe overdue support. Failure to
make each payment on time and in full will cause all
arrears to become subject to immediate collection by
all of the means listed above. On and after the date
it is due, by operation of law, each unpaid support
payment shall constitute a judgment against you,
[as] well as a lien against real property.
[(]8[)] This order is effective July 10, 2012. Arrears
adjustments resulting from this effective date will be
calculated by the DRO and set as of the entry date of
this order.
Order, 8/28/14. This timely appeal followed.2
On appeal, Mother raises the following issues for this Court’s
consideration:
1. Whether the trial court erred by not applying an earning
capacity pursuant to Pa.R.C.P. 1910.16-2(d)(4)?
2. Whether the trial court erred by not considering Father’s
present employment a voluntary reduction of income pursuant to
Pa.R.C.P. 1910.16-2(d)(1)?
3. Whether the trial court erred by not considering the standard
of living of the parties and children, as well as their unusual
needs pursuant to Pa.R.C.P. 1910.16-5?
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2
It does not appear as though the trial court directed Mother to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and the filing of a statement of errors complained of was not
mandatory in this matter as it is not a Children’s Fast Track appeal as
defined in Pa.R.A.P. 102. However, the trial court, on October 20, 2014,
filed a Pa.R.A.P. 1925(a) opinion incorporating the aforementioned August
28, 2014 Trial Court Memorandum.
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Mother’s Brief at 7.
We review an appeal from an order of child support under the
following standard:
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.
Morgan v. Morgan, 99 A.3d 554, 556-557 (Pa. Super. 2014) (citation and
quotation marks omitted). The 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).
In Mother’s first issue on appeal, she claims that the trial court erred
by not imputing an earning capacity to Father pursuant to Pa.R.C.P.
1910.16-2(d)(4). Section 1910.16-2(d)(4) provides as follows:
(d) Reduced or Fluctuating Income.
***
(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
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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 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).
Clearly, before the trial court may impute an income equal to Father’s
earning capacity, the trial court must first conclude that Father “has willfully
failed to obtain or maintain appropriate employment[.]” Pa.R.C.P. 1910.16-
2(d)(4). Here, the trial court, after considering the record and the
testimony, explained its decision as follows:
After review of the record, the court [found] that [F]ather,
who has lived for the last six years in Russia, and intends to
reside in Russia, has the best employment he could obtain in
Russia with TSFP (Center for Financial Support), obtaining that
employment on April 1, 2013. Father’s salary there is 50,000
rubles per month, with a tax rate of 13% (6,500 rubles per
month), for a net of 43,500 rubles per month, which is
$1,214.28 net per month U.S. currency. This $1,214.28 is not a
change of circumstances from the September 21, 2009 order
where [F]ather’s earning capacity was $2,176 net per month,
unemployment compensation (U.S. Dollars). Indeed, it is less
than the prior order.
Prior to [F]ather obtaining employment on April 1, 2013 at
TSFP, [F]ather was laid off in August-September 2009 at a
Russian job at Penta, when Penta closed its Moscow office.
Thereafter, [F]ather obtained Russian unemployment
compensation throughout 2010. During the Russian
unemployment compensation, [F]ather was offered a job as a
cook for a company and a job as an industrial worker, both
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positions at lower salaries than at his present job. From the time
Penta closed its doors, until obtaining the April 1, 2013
employment with TSFP, [F]ather was aggressive and diligent in
attempting to obtain employment in Russia. Father spoke to
clubs and organizations at schools where his resume was
submitted, he looked for vacancies on the Internet, he was
registered for online conferences on career search, he
interviewed with various companies, and was proactive in
networking and speaking to people.1
1
The reality is that [F]ather has been unemployed
for years, has obtained a job in Russia after good
faith efforts for the most money as has been offered,
has resided in Russia for 6 years, and there has been
no change in financial circumstances for [Father]
since the September 2009 order to warrant an
increase in said order. Arguments to the contrary by
[M]other are rejected by the court.
The court found [F]ather to be credible.2
2
The court also finds [F]ather’s excerpts from his
brief to be accurate, as follows:
“After his loss of employment from
Penta, Father’s living was financed by a
combination of factors, including the fact
that he lives rent free with his mother,
he has borrowed money from his family,
lived on credit cards, and liquidated
assets. With respect to the credit cards,
he did cash advances and then balance
transfers from one credit card to pay
back another credit card, which he did
several times.” ([Father’s Post-Trial]
Brief, [8/15/14] p. 4).
[* * *]
“Further, Mother’s argument that the
Court should give Father an earning
capacity has no basis in law or fact.
Mother provided no evidence to
contradict that Father’s income in Russia,
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where he has lived for six (6) years, is
the highest income of any job he could
find or was offered, and his testimony
that this was the best income he could
get was, to the contrary, not
contradicted.” ([Father’s Post-Trial] Brief,
[8/15/14] p. 5).
[* * *]
“Father is employed. He lives in Russia.
His income is known, his ability to live in
Russia at that level of income (which as
noted is higher than the other job offers
he received) was explained as he is able
to live with his mother (he doesn’t even
own a car, he occasionally used his
mother’s but that no longer exists as it
was stolen as noted in the testimony).”
([Father’s Post-Trial] Brief, [8/15/14] pp.
5-6).
On the other hand, there has been a substantial change of
circumstance concerning [M]other’s income. Mother’s net income
in the September, 2009 order was $1,841 net per month.
Mother’s W-2 income for 2012 is $52,981 gross per year.
Father’s attempt to impute $1,000 per month additional rental
income is rejected by the court based on the record. The issue of
[M]other’s income from January 1, 2014 going forward,
according to [F]ather, would be to extend [M]other’s 2013
$94,246 gross income into 2014. The court rejects this approach
as [M]other’s base salary is $77,000 gross per year. Her bonuses
are discretionary. However, the record shows that [M]other has
received $3,750 bonus thus far in 2014, so that sum will be
added to [M]other’s $77,000 salary for gross income going
forward for [M]other of $80,750 gross per year. As to [M]other’s
receiving further bonuses, [F]ather can always address that
issue when and if it occurs.
Lastly, [M]other admits there is no child care after June 1,
2013. However, the issue remains if [M]other has proved a child
care expense from July 10, 2012 to June 1, 2013. The court
finds she has not. Mother presented no testimony on this issue.
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The court is left to speculate and guess about child care,
concerning the amount and frequency and the very child care
itself. Mother’s exhibit M-A-5 shows a copy of one check for 60
and a 3 page “account detail” that does not reflect any specific
child care payment whatsoever and is of no probative value
regarding child care.
Trial Court Memorandum, 8/28/14, at 2-4.
The trial court found that Father’s testimony was credible and that
Father was employed in the best job he could obtain. Nothing in Mother’s
argument causes this Court to conclude there was any error or abuse of
discretion in the trial court’s conclusion. Therefore, because the trial court
did not find that Father willfully reduced his income, there was no error in
refusing to impute a greater income to Father pursuant to Pa.R.C.P.
1910.16-2(d)(4). Accordingly, Mother is entitled to no relief.
Next, mother claims that the trial court erred by not considering
Father’s present employment a voluntary reduction of income. The
applicable Rule of Civil Procedure concerning a voluntary reduction of income
is Rule 1910.16-2(d)(1), which reads as follows:
(d) Reduced or Fluctuating Income.
(1) Voluntary Reduction of Income. 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).
Again, we point out that the trial court found that Father’s testimony
was credible. Trial Court Memorandum, 8/28/14, at 2. Father’s reduced
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income was not voluntary. As the trial court noted, the parties decided to
move to Russia, but Mother ultimately chose to remain in the United States
with the children and file for divorce. Id. The trial court was satisfied that,
while living in Russia, Father made good faith efforts to obtain suitable
employment for the greatest income he could find, and there was no change
in Father’s financial circumstances since the September 2009 order that
warrant an increase in Father’s support obligation. Id. at 3 n.1. Similar to
our analysis of Mother’s first issue, we discern no error of law or abuse of
discretion. The trial court’s conclusion is supported by the record, and
because we will not disturb the trial court’s credibility determinations, we
conclude that Mother is entitled to no relief.
Finally, Mother argues that the trial court erred by not considering the
parties’ standard of living and their unusual needs pursuant to Pa.R.C.P.
1910.16-5 in determining Father’s support obligation. However, after
reviewing Mother’s argument on this issue, it is apparent that Mother is, in
fact, challenging only the trial court’s credibility determinations. Specifically,
Mother asserts that Father’s ability to travel belies his alleged financial
status. Mother’s Brief at 26-27.
Mother is baldly asking this Court to substitute its credibility
determinations for that of the trial court. However, Mother has provided no
authority for her argument, and this Court will not reweigh the trial court’s
credibility determinations. Doherty, 859 A.2d at 812.
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For the reasons set forth above, we conclude that Mother is entitled to
no relief. Accordingly, we affirm the August 28, 2014 support order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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