Werley, C. v. Hernandez, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINE ANN WERLEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH ANTONIO HERNANDEZ : No. 1706 EDA 2022
Appeal from the Order Entered March 31, 2022
In the Court of Common Pleas of Lehigh County Domestic Relations at
No(s): DR-10-02209,
PACSES: 884112096
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 25, 2023
Christine Ann Werley (Mother) appeals from the March 31, 2022, order
by the Lehigh County Court of Common Pleas, denying her exceptions to the
trial court’s November 10, 2021, order, which directed Joseph Antonio
Hernandez (Father) to pay child support in the amount of $595.68 per month
for the one minor child (Child)1 the parties share. On appeal, Mother raises
several claims: (1) the court failed to assign Father an earning capacity
commensurate with his prior work experience; (2) the court failed to properly
calculate Father’s income for child support purposes; and (3) the court failed
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1 Child was approximately 11 years old at the time of the underlying
proceedings.
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to properly calculate childcare expenses based on the record. For the following
reasons, we affirm.
The parties were never married, and their relationship lasted only a
couple of months. See N.T., 10/14/21, at 61, 63. Child was born in October
of 2011. Following their separation, Mother filed a support action against
Father. Both parties are self-employed: (1) Mother owns a massage business;
and (2) Father is stonemason. On July 8, 2011, the court ordered Father to
pay support in the amount of $1,706.00 per month. 2 Father did not appeal
that decision. The support ordered remained relatively unchanged for the
following ten years.
In February 2021, Mother filed a petition for contempt of the July 8th
order, alleging Father was “inconsistent with his support obligation, and ha[d]
notified Mother via email and/or text that he will pay support when she
allow[ed] him to see the minor child.” Mother’s Petition for Contempt of Order
Dated July 8, 2011, 2/5/21, at 1.
Subsequently, on March 18, 2021, Father filed a petition for modification
of his support obligation due to his loss of income as a result of the Covid-19
pandemic. See Father’s Petition for Modification of an Existing Support Order,
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2 The master determined that Father held an earning capacity of
approximately $51,000 as an experienced mason. N.T., 9/13/21, at 49.
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3/18/21, at 2. An interim order was entered on May 28, 2021, requiring
Father to pay $1,445.95 per month. See Order of Court – Allocated, 5/28/21.3
Nevertheless, the parties were not able to reach an agreement with
regard to Father’s support obligation, and the matter was listed for a hearing
before Hearing Officer Richard F. Betz. See Summary Report, 11/10/21 at 1.
The parties appeared for three hearings that were conducted on August 5,
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3 The interim order followed a support conference that was conducted the
same day. The hearing officer, Errol Bott, issued a summary, in which he
noted the following:
[Mother] is self-employed with her own business. A Schedule C
from 2019 was provided which shows a profit of $23,669.00.
[Mother] also receive[d] earned income credit of $3,055.00 and
child tax credit of $1,691.00. These shall be considered income
for [her]. [Mother] stated she did not receive wages or
compensation from her employment. [She] provided
documentation stating that due to medical issues, child needs
supervision. Medical personnel stated a need for child care, the
child care costs shall be considered.
[Father] is currently not employed. [Father] showed 2 statements
of pay totaling $1,500.00, which he states represents the total
income he has earned for 2021. [Father] provided limited income
for 2020 as well doing masonry work. [He] provided very little
information with respect to work sought and has not looked for
any work outside of his field. It does not appear [Father] has
attempted to mitigate any losses he may have had. [Father] shall
be assessed an earning capacity. [He] was last assessed an
earning capacity in 2011 by the Hearing Officer of $51,250. Per
the Occupational Wage Guide for Masonry (47-2051) this
assessment falls within the salary guides. As there has been no
attempt to mitigate losses, Officer will not deviate from this
assessment; as even though the assessment is over 10 years old,
it still falls within the wage guide range.
Summary of Trier of Fact, 5/28/21, at 2-3.
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2021, September 13, 2021, and October 14, 2021. See id. The findings of
the Domestic Relations Conference Officer were admitted into evidence at the
time of the proceedings. See id. at 1-2.4 Mother made no objections, but
Father disagreed with the calculation of his income. See id. at 2.
On November 10, 2021, the hearing officer entered a report,
summarizing its findings. First, the officer pointed out the parties “are both
self-employed individuals.” Summary Report, 11/10/21, at 2. The officer
explained the evidence presented at the hearings and his findings as follows:
The Superior Court in the case of Fennell v Fennell, 753
A.2d 866 (Pa. Super. 2004) stated in relevant part, “[O]ur
jurisprudence is clear, therefore, that the owner of a closely held
corporation cannot avoid a support obligation by sheltering
income that would be available for support by manipulating salary,
perquisites, corporate expenditures, and/or corporate distribution
amounts.” Id. at 868. The Pennsylvania Supreme Court made it
clear that income available for support is based upon cash flow in
lieu of tax code adjustments in cases where a party is self-
employed. Labar v Labar, 731 A.2d 1252 (Pa. [ ] 1999). The
only way to accurately determine cash flow is to give the opposing
party and the court an opportunity to review all expenditures used
to off-set gross income. In that vein, an order was entered
requiring [Father] to provide a copy of his most recently filed tax
return along with all corresponding receipts utilized to off-set
gross receipts. On the original hearing date, it became apparent
that [Father] failed to comply with that order. As a result, the
matter was rescheduled so that [Father] could comply.
As it was not known that [Father] was going to challenge
the calculation of [Mother]’s net monthly income until the second
day of testimony, a corresponding self-employment order for
[Mother] was not issued. Notwithstanding that fact, [Mother]’s
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4 See also N.T., 8/5/21/ at 3.
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counsel assured the court that she would comply with the same
requirements contained in [Father]’s order.
[Mother] submitted a copy of her federal tax return, and
corresponding documentation, for calendar years 2019 and 2020.
The undersigned Hearing Officer used the 2020 federal tax return
in order to calculate [Mother]’s income level.
For 2020, the undersigned Hearing Officer has been
prorating the profit reported by self-employed individuals if their
business was not open for the entire calendar year due to Covid.
[Mother] credibly testified that her business was open throughout
the entire calendar year. [Mother] did realize a reduction in
business as a result of Covid nonetheless. On the 2020 federal
tax return, [Mother] reported gross receipts of $58,512.00.
[Mother] was able to confirm expenses for advertising in the
amount of $3,083.17. [She] was unable to provide substantiating
evidence to justify her deduction for a car and truck expense on
Line 9 of the profit and loss schedule. As a result, this deduction
will not be taken into consideration.
[Mother] provided sufficient documentation to confirm
expenses related to a Section 179 deduction in the amount of
$5,097.18. This will be taken into consideration.
[Mother] failed to provide any documentation to confirm the
deduction which appears on Line 15, for insurance. As a result, it
will not be included. On Line 18, office expenses, [she] was able
to confirm expenses totaling $754.83. For Line 20b, rent,
[Mother] was able to confirm expenses totaling $17,391.00. For
Line 22, supplies, [she] was able to confirm expenses totaling
$1,756.63. [She] took a deduction on Line 24b for meals.
[Mother] failed to present any testimony to show that the expense
was associated with the furtherance of her business. As a result,
it was not included.
On Line 25, utilities, [Mother] was able to verify expenses
from RCN[5] in the amount of $2,091.69. [She] also provided
verification of a cell phone expense. [She] confirmed that she
uses the phone for business and for personal use. The
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5 RCN is a internet and phone provider. N.T., 10/14/21, at 29.
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undersigned Hearing Officer will include $100.00 per month, for a
total of $1,200.00 as the expense for the cell phone.
Under “other” [Mother] was able to verily a subcontractor’s
expense of $12,231.80. [She] was able to confirm an expense for
electronics purchased during that calendar year in the amount of
$559.94. [Mother] also took a deduction for uniforms/clothing.
The undersigned Hearing Officer included the expense for the
cleaning service of sheets but did not include the expense for
clothing since the clothing purchased appears to have been
normal clothing that could have been worn at any time either
working, or at home. The expense permitted totaled $449.91.
[Mother] took a deduction for what was identified as a website
expense in the amount of $750.00. This will be included.
After deducting all of the expenses, in the amounts set forth
above, from the gross receipts reported on [Mother]’s federal tax
return, it leaves a remainder of $13,145.85. This is considered
[her] income for calendar year 2020. [Mother] also received an
earned income credit of $3,069.00 and a child tax credit of
$978.00.
[Mother] also provided evidence that the minor child of this
support matter requires psychological treatment. The
undersigned Hearing Officer believes that it is appropriate to
include the cost of psychological, or psychiatric treatment, as part
of [Father]’s support obligation. [Father]’s contribution will be
made in conformity with the division of unreimbursed medical
expenses, to the extent that they are not covered by insurance.
[Mother] provided sufficient evidence to confirm that the
child attended camp in calendar year 2021 at a cost of $255.00.
This was a one-time expense. [Father]’s proportional share of this
expense will be added to [Father]’s arrears balance.
[Mother] testified that she incurs a childcare expense. [Her]
evidence with regard to this expense was lacking. [Mother] was
vague with regard to the manner in which the childcare expense
was determined. [She] testified that she would pay the childcare
provider at the conclusion of each week of childcare service. [She]
would write the childcare provider a check each week. [Mother]’s
evidence was missing several weeks of checks. [She] attempted
to explain this by indicating that the childcare provider did not
have an opportunity to get to the bank to deposit the checks. A
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close review of the evidence submitted by [Mother] clearly shows
that the childcare provider, especially in recent weeks, has been
depositing the checks utilizing her mobile phone. Using this
method, the childcare provider would not have to leave her home.
Therefore, [Mother]’s explanation fails.
From March 5, 2021 through the final hearing date on
October 14, 2021, [Mother] was able to provide confirmation of
childcare expenses totaling $4,300.00. This accumulated over a
thirty-two (32) week period. This equates to an average weekly
childcare expense of $134.38. [Father] will be required to
contribute his proportional share of this expense.
[Father] in this matter is also self-employed. Although [he]
completed a 2020 federal tax return[, Father] also confirmed that
he was closed for a period of time in calendar year 2020. As
indicated above, the undersigned Hearing Officer prorates profits
for the calendar year to cover only the periods of time that the
business was open. Unfortunately [Father] was unable to provide
the undersigned Hearing Officer with clear information with regard
to the period of time that he was closed. [Father] was extremely
vague and unconvincing in his responses. Since [he] was unable
to provide this information, the undersigned Hearing Officer
utilized the 2019 federal tax return for [Father]. [He] reported
gross receipts of $27,859.00. As indicated above, [Father] was
ordered to provide receipts, or other documentation to confirm
expenses associated with the deductions taken on the federal tax
return. As part of that order, [Father] was to group the receipts
to correspond with the deductions which appear on the tax return.
In addition, each group of receipts was to include a summary page
identifying each receipt, the date of the transaction, purpose of
the transaction, and the amount of the transaction. [Father] failed
to comply with this part of the order. Furthermore, [he] claimed
ignorance with regard to the manner in which his tax return was
completed. [Father] claim[ed] that he merely provided
documentation to his accountant, and his accountant completed
the federal tax return. As a result, [Father] was unable to
determine what receipts went with which deduction.
It is also important to note that [Father] admitted that he
received cash for the payment of some of the services that he
provide[d]. Despite that fact, [he] was unable to identify the
amount of cash that he received in calendar year 2019. [Father]
also confirmed that he does not keep records of the amounts of
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cash that he receives. It is also important to note that [his]
Exhibits contained many duplicate receipts. Since there was no
summary page for the receipt exhibits, the undersigned Hearing
Officer went through each receipt individually. Included in
[Father]’s Exhibit “3” were various receipts totaling $14,379.94.
Among those receipts was a single receipt in the amount of
$10,271.40. [Father] acknowledged that this receipt is not for his
business. [He] explained that he allows other contractors, or
masons, to use his account when purchasing materials so that
they can receive any discounts or price adjustments to which he
is entitled. The fact that [Father] attempted to include this
document as his own deduction is quite troubling and greatly
undermines [his] credibility. The undersigned Hearing Officer will
deduct that sum from the total of $14,379.94. This leaves a
remainder of $4,108.54. This is the amount that will be taken into
consideration to offset gross receipts.
[Father] supplied [Father]’s Exhibit “4”. This exhibit
included a single cell phone bill in the amount of $124.90.
[Father] confirmed that he utilizes the cell phone for both business
and personal use. As a result, half of the total will be included as
a business expense. The undersigned Hearing Officer will include
the sum of $62.45 to offset gross receipts for this expense. In
[Father]’s Exhibit “5”, [he] was able to confirm the expense for
sub-contractors totaling $5,223.00. This will be taken into
consideration as an offset to gross receipts.
Based upon the information above, [Father] was able to
confirm business expenses totaling $9,393.99 over the 2019
calendar year. After deducting this from the gross receipts figure
appearing on his federal tax return, it leaves a remainder of
$18,465.01. This figure represents [Father]’s gross income for
calendar year 2019.
Entering the findings of facts set forth above into the
PACSES system, the PACSES system calculated [Mother]’s net
monthly income to be $1,233.37 and calculated [Father]’s net
monthly income to be $1,308.20. The PACSES system calculated
[Father]’s basic support obligation to be $287.00. [His]
contribution toward the childcare expense equates to $254.68 per
month. This increases [his] monthly support obligation from
$287.00 per month to $541.68 per month.
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[Father]’s net monthly income represents fifty-one (51%)
percent of the parties’ collective net monthly income figure. As a
result, [Father] will be responsible to contribute fifty-one (51%)
percent of the summer camp expense for 2021. That summer
camp expense was confirmed to be $255.00. [Father]’s
proportional share equates to $130.05. This amount will be added
to [Father]’s arrears balance.
Id. at 2-8.
That same day, the court entered an order, which adopted the hearing
officer’s findings and directed Father to pay a total of $595.68 per month,
which was allocated as follows: (1) $541.68 for current support; and (2)
$54.00 for arrears.6 See Order of Court, 11/10/21, at 1-2.
Mother filed exceptions to the court’s November 10th order, arguing
that: (1) the hearing officer erred and abused his discretion in calculating
Father’s income for the purpose of calculating the child support obligation; (2)
the officer erred and abused his discretion in failing to assign Father an earning
capacity that was proportionate to his employment history; and (3) the officer
erred and abused his discretion in calculating Mother’s childcare expenses.
See Mother’s Exceptions to the Order dated, November 10, 2021, 11/23/21,
at 1 (unpaginated).
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6 The obligation included cash medical support in the amount of $250.00
annually for unreimbursed medical expenses. See Order of Court, 11/10/21,
at 2.
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The court held a hearing regarding Mother’s exceptions on January 12,
2022. Thereafter, on March 31, 2022, the court entered an order, denying
Mother’s exceptions. The court stated:
As persuasive as [Mother]’s argument is, after review of the
record, it does not appear to the Court that the Hearing Officer
committed an error of law or abuse of discretion in calculating
[Father]’s income or in failing to assign [Father] an earning
capacity that is commensurate with his employment history.
Under Pa.R.C.P. 1910-16-2(d)(4), 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. This
is not a mandatory provision, and it is within the trier of fact’s
discretion to determine whether a party has willfully failed to
obtain or maintain appropriate employment which would support
imputing an earning capacity. Further, the Hearing Officer did not
commit an error of law or abuse of discretion in calculating
[Mother]’s childcare expenses. The Hearing Officer found that
[Mother]’s evidence with regard to childcare expense “was
lacking” and that “[Mother] was vague with regard to the manner
in which the childcare expense was determined.” As such, after
review of the record, the Hearing Officer did not abuse his
discretion or commit an error of law in his calculation of the
childcare expenses.
Order, 3/31/22, at 1 n.1 (unpaginated) (record citation omitted). This appeal
followed.7
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7 The trial court points out that it entered the order denying Mother’s
exceptions on March 31st, but the order was not served on counsel for the
parties until June 15, 2022. See Trial Ct. Op., 7/26/22, at 1. Such action
constituted an apparent breakdown of the court’s processes. Moreover, a
Pa.R.C.P. 236 notice was never entered evincing that notice of entry of the
March 31, 2022, order was given. Therefore, we will consider Mother’s June
24, 2022, notice of appeal as timely filed. See Pa.R.A.P. 903(a) (providing
notice of appeal “shall be filed within 30 days after the entry of order from
which the appeal is taken”); Pa.R.A.P. 108(b) (date of entry of an order shall
(Footnote Continued Next Page)
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Appellant raises the following issues on appeal:
A. Did the trial court err as a matter of law and abuse its discretion
in failing to assign [Father] an earning capacity co[m]mensurate
with his experience?
B. Did the trial court err as a matter of law and abuse its discretion
in failing to properly calculate [Father]’s income for child support
purposes?
C. Did the trial court err as a matter of law and abuse its discretion
in failing to properly calculate child care expenses, based upon the
evidence of record?
Mother’s Brief at 4.
Based on the nature of Mother’s claims, we will address her first two
arguments together. Mother first alleges the trial court erred and abused its
discretion by failing to assign Father an earning capacity that corresponded to
his work experience. See Mother’s Brief at 27. She states that he failed to
produce certain documents, claimed ignorance regarding the manner in which
his tax return was prepared, admitted to receiving cash for services but could
not specify an exact amount, and threatened to stop paying child support
unless Mother allowed him to see Child. See id. at 30-31. She notes Father
did not provide any evidence or testimony about his inability to work, but
testified that he was experienced as a stonemason and also worked as a
painter. Id. at 31. Mother claims Father “failed to demonstrate a material
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be the day on which the clerk makes the notation in the docket that notice of
entry of the order has been given as required by Pa.R.C.P. 236(b)).
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and substantial change in circumstances required by Pa.R.C.P. 1910-19(c) and
this Court’s decision in” Samii v. Samii, 847 A.2d 691 (Pa. Super. 2004).8
Mother’s Brief at 33-34. Moreover, she contends he failed to present evidence
as to how the Covid-19 pandemic affected his income or his inability to work.
See Mother’s Brief at 34. Mother maintains that because (a) the same Hearing
Officer assessed Father’s earning capacity in 2011, (b) he never appealed the
decision, (c) he has been employed in the same trade since 2009, and (d) he
has no health conditions that prevent him from working, he did not meet his
burden in establishing a material change to his circumstances. Id. at 34, 37.
In Mother’s second claim, she alleges that the court erred and abused
its discretion in failing to properly calculate Father’s income for child support
purposes. Mother’s Brief at 38. Mother suggests that Father filed his petition
for modification after she filed her petition for contempt. Id. She reiterates
her prior argument that Father could not provide testimony or documentation
regarding the exact dates his business was operating in 2020, how the
pandemic affected his income, and his inability to work during that time. Id.
at 39. Mother contends that because Father failed to comply with the court
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8 We note that Samii is distinguishable from the present matter as it concerns
a parent that voluntarily chose to stay home with the minor child. See Samii,
847 A.2d at 696. The case turned on whether to assess the parent an earning
capacity when she placed herself in the “stay at home” situation. Id. at 697.
Here, Father does not allege he is a stay-at-home parent and therefore, the
request for modification is not based on his lack of employment.
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orders and was extremely vague in his testimony was it was inexplicable that
the hearing officer determined his gross income was only $18,456.01. Id.She submits the trial court “should have assessed Father with an earning
capacity at least equivalent to an annual salary of $51,250.00, representing
the prior assessment of the [c]ourt in 2011.” Id. at 40.
Our standard of review of child support orders is well settled:
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
[a]n 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
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). “The principal goal in child support matters is to serve the
best interests of the children through the provision of reasonable expenses.”
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (citation omitted)
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In reviewing the calculation of a party’s support obligations, this Court
has held 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 earning
capacity, where there is a divergence, the obligation is determined
more by earning capacity than actual earnings.
Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004) (citations
omitted). “[A] reviewing court does not weigh [earning capacity] 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).
Pursuant to Pa.R.C.P. 1910.16-2(a), monthly gross income “is ordinarily
based on at least a six-month average of a party’s income.” See Pa.R.C.P.
1910.16-2(a).9 In assessing whether a party’s income should be reduced,
Pa.R.C.P. 1910.16-2 provides:
(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.
(2) Involuntary Reduction of, and Fluctuations in, Income. No
adjustments in support payments will be made for normal
fluctuations in earnings. However, appropriate adjustments will
be made for substantial continuing involuntary decreases in
income, including but not limited to the result of illness, lay-off,
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9 23 Pa.C.S. § 4302 defines “income” for support purposes, and includes
income from any source.
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termination, job elimination or some other employment
situation over which the party has no control unless the trier
of fact finds that such a reduction in income was willfully
undertaken in an attempt to avoid or reduce the support
obligation.
* * *
(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.
Pa.R.C.P. 1910.16-2(d)(1), (2), (4) (emphases added). “[T]here is a
rebuttable presumption that the guideline-calculated support amount is the
correct support amount.” Pa.R.C.P. 1910.16-1(d); see also Ileiwat v.
Labadi, 233 A.3d 853, 860 (Pa. Super. 2020).10
Contrary to Mother’s argument, the trial court is correct that Rule
1910.16-2(d)(4) does not mandate that if a trier of fact finds a party willfully
failed to obtain or maintain appropriate employment, the trier-of-fact must
impute to the party an income equal to the party’s earning capacity. See
Order, 3/31/22, at 1 n.1 (unpaginated). The Rule clearly states that the trier
of fact may impute an income equal to the party’s earning capacity. As such,
it was up to the hearing officer’s discretion to determine Father’s gross
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10 This memorandum references the 2021 version of the support guidelines
that were in place before the most recent amendments took effect on January
1, 2022.
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income. It is evident that while the hearing officer, and imputably the trial
court, found Father less than credible concerning his income, and his actions
did not amount to a willful failure to obtain or maintain appropriate
employment. See Pa.R.C.P. 1910.16-2(d)(4). Father did present testimony
and evidence that his employment was adversely affected by the Covid-19
pandemic (i.e., he could not work for two months), he did attempt various
avenues to pursue employment, including becoming a painter at one point.
N.T., 9/13/21, at 3-4, 35. Moreover, it also merits mention that the hearing
officer extensively examined Father’s 2019 and 2020 federal tax returns to
ascertain his income and did not credit him with all his expenses. See
Summary Report at 5-7. Nevertheless, the 2019 tax return did indicate a
significate decrease in income ($18,456.01)11 from the original 2011
assessment ($51,250).
To the extent that Mother asks us to reweigh certain factors — Father’s
long employment history as a mason and that he did not appeal the original
2011 support order — in her favor, we decline to do so. See Doherty, 859
A.2d at 812. Father demonstrated that he suffered a loss of income as a result
of the Covid-19 pandemic, which he had no control over and which was a
material and substantial change warranting a modification. See Pa.R.C.P.
1910.16-2(d). Accordingly, the court’s findings and conclusions were
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11 See Summary Report at 7.
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supported by the record, and we discern no error of law or abuse of discretion
as to Mother’s first two claims.
In Mother’s third argument, she asserts the court erred and abused its
discretion by failing to properly calculate the childcare expenses. See
Mother’s Brief at 41. Mother stated that because Child was diagnosed with
several developmental disorders and needed to be continuously supervised,
she had to employ a private babysitter. Id. at 41-42. Mother purportedly
paid the babysitter $250 per week for 42 weeks, and $300 per week for ten
weeks in the summer. Id. at 42. At the October 14, 2021, hearing, she
introduced a number of checks into evidence that represented payments
through August 27, 2021, but she had no record of the checks she made for
the month of September. Id. at 43. She claims the hearing officer improperly
calculated her childcare expenses on an 18-week period, not a 52-week
period. Id. at 44. She concludes that the hearing officer’s determination is
contrary to the evidence and testimony she produced at the time of the
hearing. Id.
Keep our standard of review in mind, we note the record belies Mother’s
assertions that she paid the babysitter for every week of the year. For
example, Father’s counsel asked Mother, “[S]o regardless of how many hours
of daycare you get, you pay [the babysitter] $250 a week. Is that right?”
N.T., 10/14/21, at 66. Mother replied in the affirmative. Id. Father’s counsel
then asked “if it’s one hour you pay her $250[,]” to which Mother answered,
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“No. . . . It doesn’t go like that.” Id. Father’s counsel also pointed out there
were checks missing from December 18, 2020 to January 22, 2021, in
Mother’s proffer of payment. Id. at 68. There were also no checks for the
month of February 2021. See id. at 70. Mother testified, “I provided all of
the checks. If they’re not here, I don’t know where they are. But I provided
all of the checks for an entire year.” Id.
Just like Father, the hearing officer found Mother’s evidence of childcare
expenses to be “lacking” and “vague.” See Summary Report at 5. We are
bound by its credibility determinations. See Doherty, supra. We discern no
error on the hearing officer’s calculation as it was based on Mother providing
“confirmation of childcare expenses totaling $4,300.00” for the period of
March 5, 2021, to October 14, 2021 — a 32-week period. Summary Report
at 5. Without more evidence from Mother regarding payments, we conclude
she has failed to establish an error of law or abuse of discretion in the trial
court’s decision to reject her request to recalculate these expenses. As such,
Mother’s final claim has no merit.12
Order affirmed.
____________________________________________
12We note that as the parties transition to a post-pandemic environment
where their earning capacities may change again, there is no rule barring a
party from filing another petition for modification, as long as it is warranted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2023
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