Kundratic, S. v. Kundratic, A. ( 2014 )

J-A14020-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
ANDREW KUNDRATIC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant/Cross-Appellee
v.
SOPHIA KUNDRATIC
Appellee/Cross-Appellant No. 1920 MDA 2013
No. 1998 MDA 2013
Appeal from the Order October 2, 2013
In the Court of Common Pleas of Luzerne County
Domestic Relations at No(s): 946-2006
BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 08, 2014
Appellant, Andrew Kundratic, appeals from the order entered on
filed a
cross-appeal from this same order. We affirm in part, vacate in part, and
remand.
Appellant and Ms. Kundratic married on May 9, 1992 and had one child
during the course of their marriage. On May 2, 2006, Appellant instituted
divorce proceedings against Ms. Kundratic. Shortly thereafter, Ms. Kundratic
filed a complaint for child and spousal support. On October 1, 2007, the trial
llocated $1,500.00 for and
toward the support of one minor child[,] $1,364.00 [for] spousal support[,]
*
Retired Senior Judge assigned to the Superior Court.
J-A14020-14
1
pro rata
Trial Court Order, 10/1/07, at 1-2.
On May 19, 2008, Appellant filed a petition to modify the October 1,
2007 support order. As Appellant claimed, he was entitled to a reduction in
per diem
modification petition occurred before a hearing officer. At the conclusion of
-2008 gross
annual wages were $109,369.72, -2008 gross per diem
-
petition to modify the support order, the hearing officer determined that
Appellant had failed to demonstrate that a material and substantial change
in circumstances had occurred since the entry of the original support order.
Id. at 9-10. Therefore, the hearing officer recommended that the trial court
Id. at 11.
report and recommendation. On December 30, 2009, the trial court denied
1
Although the original support order was dated September 27, 2007, the
order was entered on October 1, 2007.
2
J-A14020-14
Appel
recommendation as an order of court. Trial Court Order, 12/30/09, at 1.
Approximately two-and-a-half years later, the trial court entered a
modified support order in the case. Specifically, on May 18, 2011, the trial
per month for health insurance. Trial Court Order, 5/18/11, at 1.
Appellant and Ms. Kundratic filed the instant cross-petitions to modify
the support order in 2011 or, over three years ago. Appellant filed his
petition, Appellant claimed that his income had decreased since the entry of
the last support order. Therefore, Appellant requested that the trial court
-
2. Ms. Kundratic filed her cross-petition to modify the support order on July
hild and
spousal support obligations because she no longer had health insurance
since the entry of the last support order.2
7/29/11, at 1-2.
2
The Pennsylvania Rules of Civil Procedure establish two competing
procedures for support
[support] action shall proceed as prescribed by Rule 1910.11 unless the
court by local rule adopts the alternative hearing procedure of Rule
e
procedure delineated in Rule 1910.12. See Pa.R.C.P. 1910.10 note.
3
J-A14020-14
In August 2011, one or both of the parties appeared at an office
conference before a conference officer and the conference officer rendered
his support recommendations.3 On August 29, 2011, the trial court entered
an interim order, wherein the trial court ad
recommendations as an interim order of court. Interim Order, 8/29/11, at
1-
was determined to be $8,161.54. Interim Order, 8/29/11, at 1-2; see also
Pa.R.C.P. 1910.12(b)(1) and (2). Based upon these determinations, the trial
court ordered Appellant to pay $1,680.00 per month in spousal support and
$1,340.00 per month in child support, for a total support obligation of
$3,022.00 per month. Interim Order, 8/29/11, at 1-2.
Following entry of the interim support order, Appellant filed a written
request for a support hearing before a hearing officer. On September 15,
scheduled, continued, and rescheduled multiple times during the ensuing
Therefore, by order entered September 28, 2012, the trial court modified
3
There is no record of whether both parties appeared at the office
conference. However, the case proceeded as though one of the parties
failed to attend the conference. See Pa.R.C.P. 1910.12(b)(2).
4
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support. Trial Court Order, 9/28/12, at 1.
On October 22, 2012, the support hearing was finally convened before
the hearing officer. The hearing officer explained the evidence that was
presented during the hearing, as well as the conclusions that she generated
from the evidence:
[Appellant and Ms. Kundratic both] reside in Luzerne
County, Pennsylvania. The parties were married on May 9,
1992 [and the parties had one child during the course of the
marriage. The child] reached the age of majority [in 2012].
[On May 2, 2006, Appellant filed a complaint in divorce
against Ms. Kundratic, seeking a decree in divorce and an
order equitably dividing the marital property. Complaint in
Divorce, 5/2/06, at 1-4. At the time of the October 22,
2012 support hearing, the divorce and equitable distribution
matter had proceeded in the following manner: after a
divorce decree on September 21, 2011; the decree stated
that Appellant and Ms. Kundratic were divorced and that the
distribution reports and recommendations into the decree;
Appellant filed a notice of appeal from the divorce decree
and raised a number of claims on appeal, including that the
trial court erred in valuing the marital residence; and, at the
appeal from the divorce decree was still pending before the
Superior Court.4]
4
We note that, on October 22, 2012, this Court affirmed in part and vacated
in part the equitable distribution award. We then remanded the case to the
. . . and determine the fair market value [of] the marital residence for
Kundratic v. Kundratic, 62 A.3d 463 (Pa.
Super. 2012) (unpublished memorandum) at 4. The trial court rendered its
decision on October 1, 2013 and Appellant again appealed the equitable
distribution award was decided by this Court in a memorandum filed on July
5
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[During the October 22, 2012 support hearing, Appellant
claimed] that his income decreased in 2011 and that he was
laid off from his employment as of January 1, 2012. He
ask[ed] that his support be recalculated and that his actual
2011 and 2012 income be used . . . for computing his
support obligations.
[Appellant] also claim[ed] that [Ms. Kundratic,] who has
been unemployed since 2009[,] be assigned an earning
capacity equal to her earning capacity in 2009. [Appellant
claimed] that [Ms. Kundratic] failed to mitigate her []
income [loss after her employment was terminated in
2009].
[Ms. Kundratic] claim[ed] that [Appellant] was laid off for
cause or[,] in the alternative[,] that he [] failed to mitigate
his [] income [loss] since his 2012 job lay off. She
[requested] that [Appellant] be assigned an earning
capacity equal to his 2011 earnings.
eligible for support until her emancipation [in September]
2012.
The parties were separated but married until September 20,
[2011]. By . . . [d]ecree entered on September 21, [2011],
the parties were divorced from the bonds of marriage.
[Appellant,] however, appealed the economic issues of the
divorce[. As such, the hearing officer concluded that Ms.
Kundratic] has a right to [receive alimony pendente lite
economic issues are resolved].
[At the time of the October 22, 2012 support hearing,
Appellant was] 51 years old and [possessed] an
[on-the-job] career training. . . .
On December 30, 2009, an order was entered affirming [a]
[r]eport and [r]ecommendation [of] the [h]earing [o]fficer.
9, 2014. On or about August 12, 2014, Appellant filed a petition for
allowance of appeal with our Supreme Court which, as of the date of this
memorandum, was still pending.
6
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annual wages were $109,369.72, that his gross per diem
allowance was $40,067.00[,] and that his mileage, meals[,]
and entertainment reimbursement totaled $12,203.00.
was [thus] determined to be $161,639.72.
...
]ax [r]eturn lists an annual
relayed to the [h]earing [o]fficer that [Appellant] had
received a [tax-free] per diem allowance of $40,067.00 and
$12,203.00 for mileage, meals[,] and entertainment. His
total 2011 annual income from his employer equaled
$141,809.00.
[As the hearing officer concluded, Appellant] proved that a
material and substantial change in circumstances []
occurred[,] which warrant[ed] a recalculation of his support
obligations effective July 21, 2011. [Specifically, a] review
[h]earing [o]fficer indicate that [Appellant] ha[d] a gross
annual income of $144,757.00 [in 2011]. After appropriate
deductions of $13,554.00[, Appellant] ha[d a 2011] net
annual income of $131,193.00. Pursuant to [Pa.R.C.P.]
1910.16-2(a)(1) [and] (c), in 2011[, Appellant] ha[d] a
[2011] net monthly income of $10,929.58.
[Appellant claimed that, on December 31, 2011,] he was
laid off from his employment and [he] immediately applied
for unemployment compensation. [During the support
hearing, Appellant introduced] into evidence [] his [b]enefit
[d]etermination from [the] New Jersey Department of Labor
and Unemployment Insurance Office to substantiate his
testimony that he is receiving [$611.00] gross per week or
$2,267.30 gross per month. According to the [m]ember
[d]ata [i]ncome [s]creen on PACSES, for [Appellant], he
received additional compensation from his employer during
the first quarter of 2012 that totaled a gross amount of
$3,891.00 or $324.00 gross [per] month. Based on the
7
J-A14020-14
$2,971.72. After appropriate deductions pursuant to
[Pa.R.C.P.] 1910.16-
monthly income is $2,524.16.
[Ms. Kundratic] allege[d] that [Appellant] lost his job for
cause or[,] in the alternative, [that] he [had] not mitigated
his [] income [loss. Ms. Kundratic requested that the
hearing officer assign Appellant] an earning capacity equal
to his 2011 income.
[Appellant] testified that he was employed as a software
consultant by Quorum Consulting for 10 years and[,
beginning in 2005, Quorum Consulting assigned Appellant
to work in a New York State bank. Appellant] testified that
his termination on December 2011 was a surprise. [The
evidence demonstrates] that Quorum had a one year
contract with the [b]ank that ended [on] March 31, 2012[,]
but [the contract provisions declared that the contract]
could be terminated earlier pursuant to a separate
agreement. [Appellant] allege[d] that he was laid off
without cause by Quorum and that the receipt of
unemployment compensation proves [that he was laid off
without cause]. Although case law [holds] that an official
action by an agency [is not] binding on the [c]ourt[,] it is
the obligation of the challenger to prove it was otherwise. . .
. [As the hearing officer concluded, Ms. Kundratic] did not
meet this burden. [Appellant] was [cross-examined] as to
his software training and [as to whether his training] was
[h]uman [r]esources [d]epartment submitted to
s] claim that [Appellant] was
terminated for cause.
[Ms. Kundratic] also claim[ed] that [Appellant] ha[d] not
mitigated his [wage loss] and that work is available for
[Appellant]. Again, [the hearing officer concluded that Ms.
Kundratic] failed to prove this allegation. [Appellant] was
[cross-examined] by [Ms. Kundratic] as to [the efforts
Appellant undertook to find employment,] but no evidence
was submitted to substantiate that work was available to
2, 2012
hearing, Appellant had] only been unemployed [for ten]
months. The [h]earing [o]fficer [concluded] that
8
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due to the economic conditions in Northeast Pennsylvania,
not [to a] lack of trying by [Appellant].
[The hearing officer concluded that, in 2012,] Appellant
ha[d] an income equal to the amount of unemployment
compensation he [was] receiving plus the additional income
$2,524.16 pursuant to [Pa.R.C.P.] 1910.16-2(a)(6) and (c).
[At the time of the October 22, 2012 hearing, Ms. Kundratic
was] 45 years old, and [] a high school graduate. [Ms.
Kundratic] is attractive, articulate[,] and has no physical
disabilities nor does she have any child care responsibilities.
[Ms. Kundratic] testified that she worked at Lord & Taylor
[department store] in a non-managerial [full-time] job for
[17] years. Her pay increased from $14.00 [per] hour to
$37.00 [per] hour over the course of her employment. She
was laid off in January 2009 and applied for and collected
unemployment benefits through 2009. She testified that
she [had not] worked full time since her lay-off. She
[testified] that she [] looked for [full-time] work at K-Mart,
Wal-Mart[,] a
Taylor but was told that all [non-managerial] jobs were part
time. [Ms. Kundratic] testified that she has been working at
Bath & Body Works since 2011. She entered her 2011
[i]ncome [t]ax [r]eturn to substantiate her income. [At the
time of the October 22, 2012 hearing, Ms. Kundratic]
receive[d] $7.62 [per] hour and work[ed] about 24 hours
[per] week. She testified that Bath [& Body Works was]
unable to give her more hours.
[The hearing officer concluded that, although Ms. Kundratic
had] been diligent in applying for employment, a more
discipline[d] approach [was] required to demonstrate that
[Ms. Kundratic was] trying to mitigate her [] income [loss].
[At the time of the hearing, Ms. Kundratic had] been
unemployed for four years [and Ms. Kundratic claimed that]
her only sources of income [were] her spousal support and
her wages from [Bath & Body Works]. When it was clear to
[Ms. Kundratic] that only [part-time] work was available to
her based on her credentials, she should have developed a
plan to improve her chances, perhaps considering additional
9
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schooling, training[,] or at [] least taking on two [part-time]
jobs.
[The hearing officer concluded that Ms. Kundratic] failed to
prove that she [] attempted to mitigate her lost wages since
her layoff in 2009. Pursuant to [Pa.R.C.P.] 1910.16-
2(d)(4), [Ms. Kundratic] [was] given an earning capacity
equal to a [full-time] minimum wage job[, which is]
$15,080.00 [per] year[,] or $1,256.67 [per] month. After
appropr
income for 2011 and 2012 [was] $1,121.45. . . .
In calculating support for the period beginning July 21, 2011
through December 31, 2011, [the hearing officer concluded
as] $10,929.58 and
The amount of child support and spousal support [was]
determined in accordance with the support guidelines which
consist of the guidelines expressed as the child support
schedule set forth in [Pa.R.C.P.] 1910.16-3, the formula in
Rule 1910.16-4[,] and the operation of the guidelines as set
forth in these rules. . . .
In calculating the support for the period beginning January
1, 2012 through September [26], 2012[, the hearing officer
$1,121.45. The amount of child support and spousal
support [was] determined in accordance with the support
guidelines which consist of the guidelines expressed as the
child support schedule set forth in [Pa.R.C.P.] 1910.16-3,
the formula set forth in Rule 1910.16-4[,] and the operation
of the guidelines as set forth in these rules. . . .
In calculating the support for the period beginning
Septemb
monthly income [was] set at $1,121.45. The amount of
spousal support [was] determined in accordance with the
support guidelines which consist of the guidelines expressed
as the [] support schedule set forth in [Pa.R.C.P.] 1910.16-
3, the formula set forth in Rule 1910.16-4[,] and the
operation of the guidelines as set forth in these rules. . . .
10
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[Ms. Kundratic] lives in the marital home and she is
responsible for the mortgage payment, the real estate
She is responsible for a total of $1,761.61 [per] month for
the items listed above. Since the house expenses exceed
ncome, taking into account the
spousal support/APL [and] child support of this
recommendation, [the hearing officer determined that Ms.
Kundratic] [was] entitled to a contribution from [Appellant]
of up to 50% of the excess amount as part of her total
award.
[The hearing officer concluded that, p]ursuant to [Pa.R.C.P.]
1910.16-6(e)[, Ms. Kundratic] [was] entitled to a mortgage
deviation. In applying the mortgage deviation[,] the total
amount of expenses paid by [Ms. Kundratic] [was]
$1,761.61. Utilizing the formula set forth [in] the
[g]uidelines, [the hearing officer determined that Ms.
Kundratic was entitled to] receive a contribution from
[Appellant] of $248.07 from July 21, 2011 through
December 31, 2011. From January 1, 2012 through
September [26], 2012, [Ms. Kundratic] [was to] receive a
contribution from [Appellant] of $638.65. From September
[27], 2012 forward, [Ms. Kundratic] [was to] receive a
contribution from [Appellant] of $670.49 [per] month.
/13/12, at 6-9; Hearing
-11.
On January 3, 2013, the trial court entered an interim order that was
5
Amended
Recommendation and Interim Order, 1/3/13, at 1-4; see Pa.R.C.P.
1910.12(e). In relevant part, the interim order read:
1. From July 21, 2011 through December 31, 2011:
5
The interim order was dated January 2, 2013.
11
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[Appellant] is obligated to pay $1,425.71 [per] month
for the support of the minor child, $2,514.73 [per]
month for [the] support of the spouse and $248.07
[per] month towards the mortgage expenses of the
marital home.
...
2. From January 1, 2012 through September 26, 2012:
[Appellant] is obligated to pay $564.21 [per] month for
the support of the minor child, $251.53 [per] month for
[the] support of the spouse and $638.65 [per] month
towards the mortgage expenses of the marital home
until September 20, 2012. From September 21, 2012,
[Appellant] is obligated to pay $564.29 [per] month for
the support of the minor child, $251.53 [per] month as
APL and $638.65 [per] month towards the mortgage
expenses of the marital home.
...
3. From September 27, 2012 forward:
[Appellant] is obligated to pay $561.08 [per] month for
APL and $670.49 [per] month towards the mortgage
expenses of the marital home. . . .
Amended Recommendation and Interim Order, 1/3/13, at 1-2.
6
On January 16, 2013, Ms.
6
Appellant raised the following exceptions to the trial court:
income was
incorrect.
2. The hearing officer failed to give any consideration to
income in previous years.
12
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7
3. Inclusion of mortgage deviation was improper.
was incorrect.
5. The hearing officer failed to terminate alimony pendente
lite, effective July 10, 2012, the date litigation concluded on
the divorce appeal.
6. The hearing officer failed to consider the duration of the
marriage in determining the duration of the award for
alimony pendente lite.
7
Ms. Kundratic raised the following exceptions to the trial court:
1. The [hearing officer] erred in finding that [Ms. Kundratic]
has an earning capacity when she has been actively seeking
employment after her unemployment benefits ran out.
2. The [hearing officer] erred in finding that [Ms. Kundratic]
has an earning capacity when she has attempted to mitigate
her circumstances with no results in the economy in
Luzerne County with unemployment over 9%.
3. The [hearing officer] erred in finding that [Appellant]
mitigated his circumstances and setting his income at his
unemployment compensation benefits amount.
4. The [hearing officer] erred in finding that [Appellant]
actively sought employment when he testified that he has
not sent any resumes out and has not posted any updated
resumes and has only contacted two friends.
13
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exceptions. By order entered October 2, 2013, the trial court denied Ms.
8
Trial Court Order, 10/2/13, at 1. Specifically,
Appel
Id.Appellant and Ms. Kundratic filed timely notices of appeal from the trial
ims on appeal:9
[1.] Whether the trial court erred by failing to address the
extent that the trial court affirmed the calculation of the
hearing [officer], it committed error.
6. The [hearing officer] erred in not finding that [Appellant]
testified that he did not update his required skills in order to
keep his job.
7. The
at [unemployment compensation] level instead of keeping
him at an earning capacity of his last job of $10,929[.00]
net per month.
8
But see Pa.R.C.P. 1910. If exceptions are filed, the interim order
shall continue in effect. The court shall hear argument on the exceptions
and enter an appropriate final order substantially in the form set
forth in Rule 1910.27(e) within sixty days from the date of the filing of
exceptions to the interim order. . . .
9
The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied and, within his Rule 1925(b)
statement, Appellant listed the claims he currently raises on appeal.
14
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[2.] Whether the trial [court] erred by failing to address the
the extent that the trial court affirmed the calculation of the
hearing [officer], it committed error.
[3.] Whether the trial court erred by failing to consider [Ms.
order to calculate her net monthly income[?]
[4.] Whether the trial [court] erred by failing to address the
inclusion of a mortgage deviation[?] To the extent that the
mortgage deviation, it committed error.
[5.] Whether the trial court erred by not terminating
alimony pendente lite, effective July 10, 2012, the date
litigation concluded on the divorce appeal[?]
[6.] Whether the trial court erred by failing to consider the
duration of the marriage in determining the duration of the
award for alimony pendente lite[?]
-8 (some internal capitalization and italicization
omitted).
Withi -appeal, Ms. Kundratic raises eight
claims.10
[1.] Did the trial court err in deciding the exceptions without
a record or transcripts of the hearing before the [hearing
officer]?
odify
the support order be dismissed due to a lack of a change in
material circumstances?
10
The trial court did not order Ms. Kundratic to file a Rule 1925(b) statement
and Ms. Kundratic did not file a Rule 1925(b) statement in this case.
15
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be used to determine support rather than an earning
capacity?
[4.] Did the [trial court] err in terminatin
spousal support/APL effective February 1, 2013?
[5.] Was [Ms. Kundratic] eligible for a mortgage deviation?
[6.] Should [Appellant] be placed at an earning capacity
rather than unemployment compensation?
[7.] Were the circumstances -
off voluntary?
[8.] Does [] Appellant have a duty to mitigate his
circumstances after a lay-off from his company?
-14 (some internal capitalization omitted).11
aims and then we will consider Ms.
As we have held:
When evaluating a support order, this Court may only
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. In addition, we note
p
interests.
11
For ease of discussion, we have re-
appeal.
16
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Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (internal
citations omitted).
modify an existing support award when the party
requesting the modification shows a material and substantial change in
Crawford v.
Crawford, 633 A.2d 155, 164 (Pa. Super. 1993) (internal quotations and
mean Id.most recent [support] order is the one that is pertinent to the determination
Samii v. Samii, 847
A.2d 691, 695 (Pa. Super. 2004).
with the [requesting] party, and the determination of whether such change
has occurred in the circumstances of the [requesting] party rests within the
Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super.
2012) (internal quotations and citations omitted). Moreover, although
Pennsylvania Rule of Civil Procedure 1910.19(a) declares that a petition to
ubstantial
modify or terminate the existing support order in any appropriate manner
based upon the evidence presented without regard to which party filed the
17
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see also Brickus
v. Dent, 5 A.3d 1281 (Pa. Super. 2010) (father filed a petition to decrease
his support obligations; this Court held that the hearing officer had the
not even filed a cross-petition to modify the support order).
Appellant first claims that the trial court erred when it adopted the
his year-2011 net monthly income was incorrect because the calculation
d because the trial
Id. at 12-13.
According to Appellant, the hearing officer incorrectly attributed
-2011 income. Appellant claims that the only
-2011 income
was $92,554.00
year-2011 income was greater than $140,000.00. Id.
As the hearing officer explained, it calcul -2011
income in the following manner:
relayed to the [h]earing [o]fficer that [Appellant] had
received a [tax-free] per diem allowance of $40,067.00 and
$12,203.00 for mileage, meals[,] and entertainment. His
total 2011 annual income from his employer equaled
18
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$141,809.00. . . . [When other sources of income are
-2011] gross income [is]
$144,757.00. After appropriate deductions of $13,554.00,
[Appellant] has a net annual [year-2011] income of
$131,193.00.
-7.
claim that the hearing officer erred in concluding that, in 2011, Appellant
received a gross $40,067.00 per diem allowance and a $12,203.00
12
According to
Appellant, during the October 22, 2012 hearing, there was no evidence that
corresponded with the hearing officer
that[, in 2011,] [Appellant] had received a [tax-free] per diem allowance of
Steiner v. Markel, 968 A.2d 1253, 1256-1257 (Pa. 2009) (an appellate
modification in his support obligations and, as such, Appellant bore the
a material and substantial change in circumstances since
12
claim that the trial court erred in attributing $52,203.00 to his income.
19
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Crawford, 633 A.2d at 164. With
-
was
obligation to pay $236.00 per month for health insurance. Trial Court Order,
5/18/11, at 1. We note that the May 19, 2011 order did not alter
and these support obligations were based,
in part, upon an earlier factual determination that -2008
gross per diem -2008
Report and Recommendation, 8/20/09, at 9; see also
Samii he most recent [support] order is the one that
is pertinent to the determination of whether a change in circumstances has
occurred . . . [even if the most recent order did not] change the amount of
Simply stated, Appellant did not provide any evidence or argument
per diem
eliminated or altered since the entry of the May 19, 2011 order. N.T.
Hearing, 10/22/12, at 49. To be sure, during the October 22, 2012 hearing,
per diem
the amount of the gross year-2011 per diem
20
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Id. -2011
per diem had not changed since the entry of the prior support order.
year- per diem
Further, the trial court did not err in adoptin
recommendation on this issue.
Appellant also claims that the hearing officer incorrectly determined
his year-
12-13. This claim fails because Appellant failed to allege or argue that his
order was entered and because, in raising the argument to this Court,
Appellant completely ignores the fact that the hearing officer determined
Report and Recommendation, 12/13/12, at 6-7. The trial court then
adopted this recommendation as its own.
Therefo
determination that Appellant was reimbursed for his work expenses,
Appellant is not entitled to relief on this claim.
trial
21
J-A14020-14
assigning Ms. Kundratic a minimum wage earning capacity, the hearing
Id.In this case, the hearing officer was well aware of Ms. Kundrati
earnings history and the hearing officer knew that Ms. Kundratic does not
have a disability and that she had limited childcare obligations. Hearing
attractive, articulate and has no physical disabilities nor does she have any
child care responsibilities. [Ms. Kundratic] testified that she worked at Lord
& Taylor in a non-managerial full time job for [17] years. Her pay increased
from $14.00 an hour to $37.00 an hour over the course of her
and after considering Ms.
the
level of a full-time, minimum wage job. The trial court then adopted the
history, and the fact that Ms. Kundratic neither has a disability nor has
22
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basis in fact. The claim thus fails.
Third, Appellant claims that the trial court erred in adopting the
with any relevant discussion, citation to the record, citation to evidence, or
ird claim on appeal is waived.
Commonwealth v. Miller, 721 A.2d 1121, 1124 (
appellant's counsel. When issues are not properly raised and developed in
briefs, when briefs are wholly inadequate to present specific issues for
citations omitted).
Fourth, Appellant claims that the trial court erred in adopting the
rtgage deviation in the support order.
deviation constituted error because, during the October 22, 2012 hearing,
the parties presented no evidence of the amount Ms. Kundratic was required
to pay for the mortgage on the marital home and because Ms. Kundratic did
In relevant part, Pennsylvania Rule of Civil Procedure 1910.16-6(e)
declares:
23
J-A14020-14
The guidelines assume that the spouse occupying the
marital residence will be solely responsible for the mortgage
Similarly, the court will assume that the party occupying the
marital residence will be paying the items listed unless the
recommendation specifically provides otherwise. If the
obligee is living in the marital residence and the mortgage
(including amounts of spousal support, alimony pendente
lite and child support), the court may direct the obligor to
assume up to 50% of the excess amount as part of the total
support award. . . . This rule shall not be applied after a
final resolution of all outstanding economic claims. For
purposes of this subdivision,
insurance and may include any subsequent mortgages,
home equity loans and any other obligations incurred during
the marriage which are secured by the marital residence.
Pa.R.C.P. 1910.16-6(e).
At the outset, Appellant is incorrect to claim that the hearing officer
Kundratic introduced her total monthly mortgage obligation into evidence
during the support -C. Ms. Kundratic also
Exhibits 4-A and 4-B.
Appellant is also incorrect to claim that the hearing officer did not have
the authority to order a mortgage deviation. Pennsylvania Rule of Civil
Procedure 1910.19(c) declares that, pursuant to a petition for modification,
in any
appropriate manner based upon the evidence presented without
24
J-A14020-14
1910.19(c) (emphasis added). In this case, Ms. Kundratic requested an
support hearing, Ms. Kundratic presented the hearing officer with evidence
regarding her income, her mortgage obligation, and her real estate tax
obligations. Appellant did not object to this evidence. Moreover, under
Pennsylvania Rule of Civil Procedure 1910.16-6(e), a mortgage deviation
may be granted where
1910.16-6(e). Here, since the hearing officer had evidence regarding Ms.
ligation, and real estate obligations, the
Id. The
hearing officer thus had the authority to recommend a mortgage deviation in
final two claims on appeal fail.
Indeed, as we will discuss later in this memorandum, the trial court erred
l.
25
J-A14020-14
Brief at 13. This claim is waived, as Ms. Kundratic did not raise the claim
Further, even if the claim were not waived, the claim would fail because
there is no evidence that the trial court decided the exceptions before it
to modify the support order [must] be dismissed due to a lack of a change in
because Ms. Kundratic never raised the claim at any point in the lower court
proceedings and because Ms. Kundratic did not raise the claim in her
Third, Ms. Kundratic contends that the hearing officer erred in
attributing to her a full-time, minimum wage earning capacity. According to
failed to [] mitigate her ci -26. This
claim fails.
26
J-A14020-14
Pennsylvania Rule of Civil Procedure 1910.16-2 provides that,
-2. Nevertheless, Rule 1910.16-2
current claim, Rule 1910.16- 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
-
2(d)(4).
Age, education, training, health, work experience, earnings
history and child care responsibilities are factors which shall
be 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).
As explained above, during the support hearing, the evidence
demonstrated that Ms. Kundratic was a 45-year-old high school graduate
with no physical disabilities and limited childcare responsibilities. N.T.
Hearing, 10/22/12, at 21. Further, Ms. Kundratic testified that until she
27
J-A14020-14
was laid off from Lord & Taylor in January 2009 she had worked at Lord &
Taylor for 17 years, in a full-time position, earning at least $14.00 per hour.
Id. at 22. Notwithstanding her extensive work history, maturity, good
health, and physical abilities, Ms. Kundratic testified at the October 22, 2012
support hearing that she was currently employed at Bath & Body Works in a
mere part-time capacity, earning $7.62 per hour and that she had not
worked in a full-time position since she was laid off from Lord & Taylor in
2009. Id. at 25.
[a]ge,
education, training, health, work experience, earnings history and child care
could not secure a
full-time, minimum wage job in the over-three-years since she had been laid
off from Lord & Taylor.13 Pa.R.C.P. 1910.16-2(d)(4). The hearing officer
llfully failed to obtain . . .
appropriate em
Kundratic an income equal to a full-time, minimum wage job. Hearing
-9. The trial court
ts order of court.
Put simply, the trial court did not abuse its discretion when it adopted
13
We note that, during the October 22, 2012 hearing, Ms. Kundratic testified
N.T. Hearing, 10/22/12, at 20-21.
28
J-A14020-14
earning capacity equal to a full-time, minimum wage job. The amount
constitutes a realistic measurement of what Ms. Kundratic should be
D.H. v. R.H., 900 A.2d 922, 930 (Pa. Super. 2006) (internal
l fails.
contends that the trial court erred in terminating her APL and mortgage
deviation effective February 1, 2013. We agree. Therefore, we vacate this
rder and remand.
As we have explained, on January 3, 2013, the trial court entered an
recommendation, the hearing officer explained that it recommended Ms.
Kundratic receive APL and mortgage expenses because Appellant had
appealed the equitable distribution award to the Superior Court and
Appellant had thus frozen the equitable distribution award and the award of
the marital home to Ms. Kundratic pending the appeal. Moreover, at the
Court.14
, claiming that the hearing officer should
14
table
distribution award is pending before our Supreme Court.
29
J-A14020-14
2012
distribution appeal occurred before the Superior Court. Appellant
Exceptions, 1/2/13, at 1. On October 2, 2013, the trial court entered an
spousal support/APL is termi
Order, 10/2/13, at 1. The trial court provided no explanation for the order
or for the seemingly random termination date.
Now on appeal, Ms. Kundratic claims that the trial court erred in
terminating her APL effective February 1, 2013. We agree. We have
explained:
pon entry of a decree in divorce, any existing order for
spousal support shall be deemed an order for alimony
pendente lite
Pa.R.C.P. 1920.31(d). Alimony pendente lite
spouse during the pendency of a divorce or annulment
3103. Pursuant to 23
Pa.C.S.A. § 3702, alimony pendente lite is allowable to
either spouse during the pendency of the action.
status of the parties but on the state of the litigation. This
means, in theory, that the APL terminates at the time of
divorce which usually concludes the li DeMasi v.
DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991). In DeMasi,
our Court held that
a divorce is not final for purposes of APL until appeals
have been exhausted and a final decree has been
entered. Thus, while APL typically ends at the award of
30
J-A14020-14
the divorce decree, which also should be the point at
which equitable distribution has been determined, if an
appeal is pending on matters of equitable distribution,
despite the entry of the decree, APL will continue
throughout the appeal process and any remand until a
final [o]rder has been entered.
Prol v. Prol, 840 A.2d 333, 335 (Pa. Super. 2003) (some internal
quotations and citations omitted) (emphasis in original).
In the case at bar, the trial court abused its discretion when it
terminated both the APL and the mortgage deviation effective February 1,
2013.15 the equitable distribution award is
still pending in this Court and Ms. Kundratic is entitled to receive both APL
and a mortgage deviation until the economic claims are resolved. Id.nd for
further proceedings.
December 31, 2011 termination from
employment was involuntary; and 2) that, during the ensuing time,
Appellant had attempted to mitigate his income loss by finding other
-33. We conclude that the trial
s termination
15
As we have already explained, the trial court properly ordered that Ms.
Kundratic was entitled to a mortgage deviation in this case.
31
J-A14020-14
was involuntary, but that the court did abuse its discretion when it held that
Appellant attempted to mitigate his income loss.
Although we have quoted a segment of Pennsylvania Rule of Civil
Procedure 1910.16-2 above, we will quote the portions of the rule that are
Rule 1910.16-2. Support Guidelines. Calculation of
Net Income
Generally, the amount of support to be awarded is based
...
(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,
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
32
J-A14020-14
earning capacity. Age, education, training, health, work
experience, earnings history and child care
responsibilities are factors which shall be 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.
Kundratic contends that the trial court abused its discretion when it
determined that Appellan
employment was involuntary. According to Ms. Kundratic, the evidence
ed to
her claim on appeal thus fails.
During the October 22, 2012 support hearing, Appellant never
testif
December 31, 2011 job termination. Rather, Appellant testified that he is a
software consultant and, shortly before he was laid-off from work, he was
33
J-A14020-14
vice named Quorum Technical Services,
services to a company named JRI America. Id. at 37-38.
insure [Appellant] o
either JRI America or Quorum terminated their particular contract. As a
result, Appellant lost his job. Id. at 28, 29, and 37-38. Moreover, we note
that, on cross- ey specifically asked
Appellant whether he was laid-off because he was not up to date on his
insure me on Id. at 63.
After hearing Appellant testify during the support hearing, the hearing
-off was
involuntary. The trial court adopted this determination.
n appeal that the trial court
employment] because he failed to keep up with the current training needed
to effectivel is factually baseless. The claim fails.
appeal, Ms. Kundratic contends that the trial court abused its discretion in
34
J-A14020-14
concluding that, after Appellant was laid-off from work, Appellant had
attempted to mitigate his income loss by endeavoring to obtain appropriate
-33. We agree with Ms. Kundratic
that the trial court erred in this regard. Therefore, we vacate the portion of
the trial
unemployment compensation insurance income and we remand so the trial
support order.
During the support hearing, Appellant testified that after he was laid
off from work in December 2011 he posted his resume on two online
employment websites. Appellant testified that he currently visits one of the
Hearing,
10/22/12, at 51. As a result of these efforts, Appellant testified that he has
received a number of telephone inquiries regarding employment in his field
of software consulting but that he has received limited interview
opportunities and no job offers.16
16
c claims that
testimony. Indeed, Appellant specifically testified that he has received no
job offers since he was laid off from work. N.T. Hearing, 10/22/12, at 47.
testified that he merely turned
down a job interview with Walt Disney World and that he did so because
the interview was in Florida. N.T. Hearing, 10/22/12, at 33.
35
J-A14020-14
However, during the support hearing, Appellant admitted that he has
voluntarily decided not to maintain his current software training and that,
Appellant testified:
Q
correct?
A: Now it is. Yes it is. . . .
...
Q: . . .
A: Yes.
Q: And you, you were the one who decided whether or not
to get additional training or not?
A: If they were coming out with new software. Yes it was
my decision.
...
agree with that. Right?
Q: Right.
a job with training of [2005] up if I can find a place that has
that software not the newer software.
Q: But that limits the amount of places you can find a job.
Correct?
36
J-A14020-14
A: I guess so (inaudible) any place for a job.
N.T. Hearing, 10/22/12, at 40, 43, and 44-45.
In determining that Appellant had attempted to find appropriate
employment following his lay-off, the hearing officer and the trial court
abuse of discretion. To be sure, Appellant admitted that his willful failure to
him to find appropriate employment in his field. In other words, Appellant
ppropriate
-2.
unemployment compensation insurance income and we remand so the trial
support order.
Order affirmed in part, vacated in part, and remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
37