McCall, L. v. Thornton, L. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LORRAINE McCALL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LANCE A. THORNTON, : No. 535 WDA 2016
:
Appellant :
Appeal from the Order Entered March 21, 2016,
in the Court of Common Pleas of Erie County
Domestic Relations Division at Nos. NS201301113/PASCES
No. 486114105
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2016
Lance A. Thornton appeals the March 21, 2016 order of the Court of
Common Pleas of Erie County that made final the January 19, 2016 interim
order of the Domestic Relations Section of the Court of Common Pleas of
Erie County.
The trial court set forth the following factual and procedural history:
On April 15, 2014, this Court assessed
[appellant] with a monthly net earning capacity of
$6,871.42. The assessment was based upon
[appellant’s] prior employment with STNA and was
the same earning capacity set for [appellant] on
January 8, 2013 at PACSES Case 630109800. As
previously explained:
[Appellant] did not challenge the
$115,000.00 earning capacity
* Retired Senior Judge assigned to the Superior Court.
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assessment in January of 2013.
Furthermore, [appellant’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
[appellant], inconsistent with his position
of lack of income, is now building a
$328,105.00 home. In sum, in early
2013 [appellant] accepted an
assessment of [a] $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. The Superior
Court of Pennsylvania, by a December 3, 2014
Memorandum Opinion, affirmed the April 15, 2014
Order. See 790 WDA 2014.
Relevant to the present appeal, the Domestic
Relations Section, on November 24, 2015, directed
the parties to appear for a modification conference.
Following the January 14, 2016 conference, at which
both parties appeared, a January 19, 2016 Interim
Order issued maintaining the parties’ monthly net
incomes from the April 15, 2014 Order, but reducing
[appellant’s] child support obligation based upon a
new custody arrangement. Specifically, the Interim
Order set forth as follows:
Recommending Order modified to
$760/mo support for 1 child, Kendall
effective 1/6/16 date of Custody Order.
Order calculated based on defendant’s
income assessment remaining at
$115,000/yrly in accordance with prior
ruling by the Superior Ct. Plaintiff
assessed total 2015 earnings plus
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additional earning capacity of
$6,344/yrly based on full time
employment @ $9/per hr based on her
age, education and current hourly pay.
Order takes into account a split custody
counterclaim and grants a downward
deviation based on defendant’s cost of
health insurance for child in his home.
Order to automatically reduce to
$600/mo eff 2/1/16 to recoup an
overpayment of $2,720 and shall remain
for period of 17/mo. Effective 8/1/17
Order automatically reinstated to
$760/mo. This temporary Order to
become final in twenty days unless a
demand for hearing is filed within the
said twenty days.
[Appellant] filed a Demand for Court Hearing.
On March 9, 2016, this Court presided over the
de novo hearing. In addition to the testimony and
evidence presented at the hearing, the Court
requested, without objection from either party, that
[appellant] provide to the Court all documents,
filings and financial documents associated with the
transfer of [appellant’s] business, RainEater LLC, to
newly created Erie Automotive Aftermarket Holdings,
Inc. On March 21, 2016, this Court entered its Order
making the January 19, 2016 Order a final order.
Trial court opinion, 6/6/16 at 1-3.
Appellant raises the following issue for this court’s review: “The trial
court erred and abused it’s [sic] discretion in assessing the appellant’s
income at $6,871.42 a month and not assessing his income at a level
consistent with income taxes and pay records.” (Appellant’s brief at 6.)
When reviewing a child support order, we employ the following
standard of review:
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[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 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.
W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (citations omitted). A
finding of an abuse of discretion must rest upon a showing by clear and
convincing evidence, and the trial court will be upheld on any valid ground.
Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super. 2005). Additionally, the
fact-finder, having heard the witnesses, is entitled to weigh the evidence and
assess its credibility. Id. at 1245.
A court may modify a support order when the party who seeks
modification shows a substantial and material change in circumstances since
the last order was entered. See Pa.C.S.A. § 4352(a); see also Summers
v. Summers, 35 A.3d 786, 789 (Pa.Super. 2012).
Appellant 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. Appellant
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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, appellant 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 appellant
does not have access to company funds and that the company was operating
at a loss. According to appellant, the trial court abused its discretion when it
determined that appellant failed to show any material or substantial change
of circumstances since the April 15, 2014 order.
The trial court explained its determination:
The Court remains unconvinced, however, that
[appellant’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, [appellant] clearly remains more
than just an employee. First, inconsistent with
[appellant’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 [appellant] is an 82% shareholder of
Erie Automotive Aftermarket Holdings, Inc.
Moreover, while [appellant] 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,
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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, [appellant] 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, [appellant] 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 [appellant’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
of issues, yet [appellant] even had to correct
Mr. Hickey on how payment for employee insurance
works. In that regard, the Court is not convinced
that [appellant] is merely an employee of Erie
Automotive Aftermarket Holdings, Inc. with only
$50,000 in income.
Accordingly, while the structure of [appellant’s]
business may have changed, the Court is not
convinced that it has changed in a manner which
changed [appellant’s] income. [Appellant] 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
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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.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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