Ferris, R. v. Petri, M.

J-S63029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RALPH A. FERRIS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARYANN PETRI
Appellant No. 406 WDA 2017
Appeal from the Order Entered March 6, 2017
In the Court of Common Pleas of Erie County
Domestic Relations at No(s): 839115257
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 27, 2017
Maryann Petri (“Mother”) appeals, pro se, from the court’s March 6,
2017 order (dated March 2, 2017), maintaining her $789 monthly support
obligation (plus arrears) to her three minor children, with a downward
modification to $763.08 (plus arrears) to her two minor children after one
child was emancipated on June 6, 2017. We vacate and remand for further
proceedings, as set forth below.
A year ago, this Court set forth the following procedural and factual
history in resolving Mother’s appeal from a September 4, 2015 order
establishing her monthly support obligation at $789:
Mother and Ralph A. Ferris (“Father”) married on June 18,
1994, separated during 2002, and divorced on December 31,
2004. The parties’ three children were born during April 1998,
March 2001, and July 2002 respectively. Mother and Father
initially shared equal physical custody of the children, and during
2013, Mother, a registered nurse, obtained a child support award
in the amount of $300 per month. The award was calculated
using an assessed monthly earning capacity of $3,521.57 to
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determine Mother’s income for the purposes of the support
guidelines.[1] While Mother disputed the court’s determination of
her earning capacity at every stage of those support
proceedings, she did not appeal the trial court’s final child
support order.
The amicable custody arrangement between Mother and
Father quickly deteriorated, and following an “indicated” report
that Mother perpetrated emotional abuse against one of the
children, Father obtained primary physical custody of the
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1 This Court explained earning capacity as follows:
We define earning capacity as “that amount which the person
could realistically earn under the circumstances, considering his
or her age, health, mental and physical condition and training.”
Gephart v. Gephart, 764 A.2d 613, 615 (Pa. Super. 2000)
(citation omitted). Pursuant to Pa.R.C.P. 1910.16–2(d)(4),
which permits the trial court to impute an income equal to a
party’s earning capacity, the trial court is directed to engage the
following considerations:
Earning Capacity. Ordinarily, either party to a support
action who willfully fails to obtain appropriate employment
will be considered to have 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. 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).
Ferris v. Petri, No. 1443 WDA 2015, 2016 WL 7103916, at *3 (Pa. Super.,
Dec. 6, 2016) (“Ferris I”).
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children during 2015. As Mother was limited to partial physical
custody on alternating weekends, her support was terminated,
and on April 24, 2015, Father filed the complaint for child
support that is the genesis of this appeal.
Following a support conference, the trial court’s domestic
relations section entered an interim order [on July 17, 2015]
awarding Father $789 per month in child support and $90
toward arrears.[2] While the parties agreed upon Father’s net
monthly income, which was documented by his federal tax
return for 2014, Mother’s earnings were again contested. Mother
argued that she no longer had the earning capacity that was
assessed in the former case because she lost her child abuse
clearances under the Child Protective Services Law (“CPSL”) as a
consequence of the founded allegation of abuse and could not
work in the positions that she previously held. Father countered
that Mother’s earning capacity was established in the prior
proceeding and that the identical figure should be used in the
present case. The domestic relations section agreed and
assessed Mother a net earning capacity of $3,521.57 in light of
the prior assessment and Mother’s education and work
experience.[3]
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2 The explanatory comment to Rule 1910.11 explains the office conference
procedure for a support action:
The domestic relations office conference provided by Rule
1910.11 constitutes the heart of the support procedure. There
are two primary advantages to the inclusion of a conference.
First, in many cases the parties will agree upon an amount of
support and a final order will be prepared, to be entered by the
court, thus dispensing with a judicial hearing. Second, those
cases which do go to hearing can proceed more quickly because
the necessary factual information has already been gathered by
the conference officer.
Pa.R.Civ.P. 1910.11, Cmt. The office conference is conducted by a
conference officer, who is a lawyer. Pa.R.Civ.P. 1910.11(a). The officer
must recommend the amount of support. Pa.R.Civ.P. 1910.11(d)(1).
3 The court’s order imposed a monthly support payment of $789, plus an
additional $90 to pay the then-outstanding arrears of $2,658.51. Interim
Order, 7/17/15.
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Mother demanded a de novo support trial, arguing that she
had been unemployed for seven months due to the allegations of
abuse and that she could only work one day per week as a result
of related stress and mental health issues. Father’s income was
not in dispute. At the outset of the September 4, 2015 hearing,
Father’s attorney reminded the trial court of the prior support
proceedings that the court presided over during 2013, in relation
to Mother’s support complaint. Father posited that Mother should
be held to the same earning capacity that the court assessed at
the close of the 2013 proceeding. The trial court stated that it
understood the relevant issues and invited Mother to proffer
testimony.
Mother testified that, prior to January 2015, she earned
approximately $27 per hour as an emergency room nurse at St.
Vincent Hospital. She worked four twelve-hour shifts per two-
week pay period, i.e. twenty-four hours per week. In January
2015, the hospital suspended her without pay as a result of the
indicated finding of abuse. She returned to work during July
2015, when the indicated finding was expunged from her record
[on June 5, 2015,] and she was eligible to receive the required
child abuse clearances.[FN] While she received a two-dollar per
hour raise upon her return to work, she reduced her employment
to one four-hour shift per week. Mother asserted that the
reduction was due to her diagnoses of anxiety and depression.
She attempted to verify her mental health conditions by
introducing two physician verification forms that had been
completed by her psychiatrist and her primary care physician;
however, the trial court sustained Father’s objection to the
documents as untimely under Pa.R.C.P. 1910.29(b)(2) (party
must serve the physician verification form no later than twenty
days after the support conference).[4] After sustaining the
objection, the court reiterated, “I also understand that these
issues have been before the court significantly before.” N.T.,
9/4/15, at 11–12.[FN2] Following the hearing, the trial court
sustained the [July 17, 2015] domestic relations section’s award
to Father of $789 per month child support (plus $90 toward
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4 These verification forms are not in the certified record. “Physician
verification forms are specific documents whose form, use, and admissibility
is governed by Pa.R.C.P. 1910.29. The documents are used in support cases
to verify that a parent has a medical condition that affects his or her ability
to earn income over a specific period of time.” Ferris I, 2016 WL 7103916,
at *4.
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arrears) and entered that award as a final child support order
[on September 4, 2015].
[FN]Days after an administrative law judge expunged the
agency’s “indicated” finding of emotional abuse, Erie County
Child and Youth Service issued a fresh “indicated” finding of
abuse against Mother in relation to one of the other children.
Mother’s appeal from the latter determination was pending
when the support hearing occurred. N.T., 9/4/15, at 3, 7-8,
12. Father avers in his brief that the second indicated report
was also expunged. Father’s brief at 5 n.4.
[FN2]We observe that, to the extent that the trial court
indicated that it heard evidence regarding Mother’s mental
health problems during the 2013 proceedings, the record
does not support that finding. The current allegations of
anxiety and depression did not arise until 2015, supposedly
concomitant with the loss of shared physical custody of the
children and the leveling of indicated reports that she
perpetrated emotional abuse. Stated plainly, we do not rely
on this aspect of the trial court’s recollection of the 2013
proceedings.
Ferris v. Petri, No. 1443 WDA 2015, 2016 WL 7103916, at *1-*2 (Pa.
Super., Dec. 6, 2016) (footnote omitted) (“Ferris I”).
In sum, Mother was charged twice by the Erie County Office of Child
and Youth Service (“OCY”) with emotional abuse of her children. The first
charge was expunged on June 5, 2015, N.T. 9/4/15, at 3; and the second
apparently was expunged on December 4, 2015. Mother’s Pa.R.A.P. 1925(b)
Statement, 3/31/17.
Mother, pro se, appealed the court’s September 4, 2015 order. She
argued that the trial court erred by sustaining Father’s objections to her
physician verification forms. Ferris I, 2016 WL 7103916, at *4. Mother
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also contended that the trial court abused its discretion by finding that she
had an earning capacity that was unsupported by the record. Id. at *2.
On November 12, 2015, while Mother’s appeal from the September 4,
2015 order was pending in this Court, Mother filed a petition for modification
of her $789 support order. Mother’s Pet. for Modification of an Existing
Support Order, 11/12/15. The basis for her petition, which she verified, was
her averment that she was no longer employed as of November 11, 2015.
Id. at 2.
An office conference was held on January 6, 2016, at which, according
to the officer, Mother “stated that she is no longer employed part-time” at
Saint Vincent Hospital as of November 11, 2015. Summary of Trier of Fact,
1/13/16, at 2. The officer noted that Mother’s earning capacity had been
upheld by the trial court after a trial de novo, and that the trial court’s order
was then on appeal to this Court. Id. The officer recommended the
following with respect to support: “All terms and[/]or conditions of the prior
[September 4, 2015] Order shall continue ($789.00/month for the support
of three minor children).” Id. The officer entered an interim order requiring
payment of $884 per month, reflecting $789 per month in support and a
slight increase to $95 per month for arrears. Interim Order, 1/13/16, at 2.
Mother did not request a trial de novo following this decision.
On February 4, 2016, the docket reflects that Father filed a pro se
petition for modification, but the record does not include this petition. That
next day, the court entered two orders instructing the parties to appear for a
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February 24, 2016 office conference. Orders, 2/5/16. At that conference, a
summary by the trier of fact states that the reason for the conference was to
resolve Mother’s petition to suspend the support obligation. Summary of
Trier of Fact, 2/25/16, at 1. The record and docket, however, do not reflect
any such petition.
At the February 24, 2016 office conference, Mother again stated that
she was terminated from her part time employment at Saint Vincent due to
her inability to obtain mandatory child abuse clearances. She noted that the
charge of child abuse was expunged and she had reapplied for her
clearances. Mother stated that she had applied for jobs and tried to get
back her old job with Saint Vincent. She also applied for Social Security
disability benefits and was waiting for a hearing date. Mother insisted she
did not have income available to pay the amount in the support order.
Summary of Trier of Fact, 2/25/16, at 2.
The officer noted that Mother, prior to the conference, provided
“updated medical documentation . . . which indicates [Mother] is unable to
work at this time,” but the officer pointed out that the documentation “lists
the same conditions that were taken into consideration at the last De Novo
Hearing” on September 4, 2015. Summary of Trier of Fact, 2/25/16, at 2. 5
According to the officer, Father agreed, arguing “that the medical
____________________________________________
5 This documentation was not made part of the certified record. It is not
clear if the documentation consists of the physician verification forms
discussed in this memorandum.
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documentation was already taken into consideration and that [Mother]
should continue to be held to the current earning capability as she was
terminated from employment for cause.” Id. at 2-3.6 The officer did not
rule on the petition for modification and forwarded the matter to the trial
court for “testimony as there is a pending appeal to” this Court. Id. at 3.
The officer then scheduled a court hearing for March 31, 2016. Order for
Court Hr’g, 2/26/16.
In apparent anticipation of the March 31, 2016 hearing, Mother, on
March 8, 2016, filed a praecipe attaching physician verification forms as
exhibits. These forms, signed by various physicians, identify Mother’s
medical ailments and work restrictions. Mother’s Praecipe to Attach Exs.,
3/8/16. Father filed an objection to Mother’s praecipe and asked that any
physician testimony be presented in person. See generally Pa.R.Civ.P.
1910.29(b)(2).7
____________________________________________
6 We note, however, that the court had not considered Mother’s medical
documentation at the September 4, 2015 hearing, because the court had
sustained Father’s objection to its admission.
7 This rule states:
Record Proceeding. If the matter proceeds to a record hearing
and the party wishes to introduce the completed Physician
Verification Form into evidence, he or she must serve the form
on the other party not later than 20 days after the conference.
The other party may file and serve an objection to the
introduction of the form within 10 days of the date of service. If
an objection is made and the physician testifies, the trier of fact
shall have the discretion to allocate the costs of the physician’s
testimony between the parties. If there is no objection, the form
(Footnote Continued Next Page)
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On March 15, 2016, Mother filed a pro se motion asking that the trial
judge recuse herself, venue be switched, and the conference officer be
required to comply with Pa.R.Civ.P. 1910.11. Mother’s Mot. to Comply with
Pa. RCP and Change Venue, 3/15/16.8 Mother contended that she lost her
job on November 23, 2015. Mother recounted the procedural history and
contended that the officer “unilaterally ‘unfroze’ the case, and scheduled a
de novo hearing” before the trial court on March 31, 2016. Id. at ¶ 8. She
maintained that the officer’s action violated Rule 1910.11, which, in her
(Footnote Continued) _______________________
may be admitted into evidence without the testimony of the
physician. In the event that the record hearing is held sooner
than 30 days after the conference, the trier of fact may provide
appropriate relief, such as granting a continuance to the
objecting party.
Pa.R.Civ.P. 1910.29(b)(2).
8 Rule 1910.11 sets forth the procedures for an office conference. Among
other things, it provides:
(e) At the conclusion of the conference or not later than 10 days
after the conference, the conference officer shall prepare a
conference summary and furnish copies to the court and to both
parties. . . .
...
(f) If an agreement for support is not reached at the conference,
the court, without hearing the parties, shall enter an interim
order calculated in accordance with the guidelines and
substantially in the form set forth in Rule 1910.27(e). Each
party shall be provided, either in person at the time of the
conference or by mail, with a copy of the interim order and
written notice that any party may, within twenty days after the
date of receipt or the date of the mailing of the interim order,
whichever occurs first, file a written demand with the domestic
relations section for a hearing before the court.
Pa.R.Civ.P. 1910.11(e)-(f).
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view, required the officer to issue an interim order and conference summary
and did not provide for a de novo court hearing unless one of the parties
demanded a hearing. Id. Mother asserted that the officer had “no right to
spend the parties’ money for them on lawyers to attend a hearing. Further
neither party offered or provided any testimony to be heard, and the entire
thing reeks of impropriety.” Id. For relief, Mother asked that the trial court
order the conference officer to comply with Rule 1910.11, issue an interim
order granting the relief requested in her motion, and transfer the case out
of Erie County, as the trial court “seems to have overwhelming conflicts of
interest.” Id. at Ad Damnum Cl. ¶ 3.
On March 23, 2016, Mother filed yet another pro se motion to compel
the Domestic Relations Section to comply with Rule 1910.11. Mother’s Mot.
to Compel Domestic Relations to Comply with Rule 1910.11, 3/23/16. She
asserted that the conference officer “froze” the case at the January 6, 2016
hearing due to the then-pending appeal and argued that nothing in Rule
1910.11 authorized such a “freeze.” Id. at 8. Mother stated that “Domestic
Relations managed to thaw the case out and reschedule a new Conference”
for February 24, 2016, but the conference officer at that hearing engaged in
“a different method of abrogating her duty and violating procedure by
unilaterally scheduling a de novo hearing directly in front” of the trial judge.
Id. at ¶ 9. As in her March 16, 2016 pro se motion, Mother maintained that
Rule 1910.11 required the conference officer to issue an interim order.
Mother asserted that the trial judge in her custody case diagnosed her “with
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mental illness so severe” she is incapable of caring for her children, and
contrasted that conclusion with Father’s position in the support matter that
Mother is capable of being employed as a nurse. Id. at ¶¶ 13-14. As relief,
Mother requested that the March 31, 2016 de novo hearing be canceled and
a new conference officer be assigned.
Mother’s counsel filed a petition to withdraw on March 30, 2016, which
the court granted that same day.
On March 31, 2016, the trial court held a hearing on Father’s
objections to Mother’s praecipe, as well as Mother’s March 23, 2016 motion
to compel the court to comply with Rule 1910.11. N.T., 3/31/16, at 2. The
court also indicated “[t]his matter comes before the [c]ourt based . . . on a
petition to suspend the order.” Id. The court and the parties did not
suggest that the court should entertain Mother’s March 16, 2016 motion.
With respect to Father’s objection to Mother’s praecipe, Father’s
counsel reasoned that because “none of the information in there has
changed since 2013, when this litigation really started, I filed the objection
asking that [the physicians] be required to appear here today. I don’t see
any of them here to testify.” N.T., 3/31/16, at 3. Father’s counsel argued
that the exhibits should be “inadmissible under the rule[9] at this point in
time [and] ask[ed] the [c]ourt to not allow any testimony or any of the
physician verification forms” that Mother provided.
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9 Father’s counsel did not cite a particular rule, but counsel appeared to
reference Rule 1910.29(b)(2).
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The court withheld a ruling on Mother’s March 23, 2016 motion and
Father’s objection because of the then-outstanding appeal to this Court of
the September 4, 2015 order. N.T., 3/31/16, at 10-11. The court
memorialized its decision in an order dated April 1, 2016, but docketed on
April 8, 2016. Order, 4/8/16 (holding that the court’s “decision is held in
abeyance pending directives from Superior Court decision”).
On December 6, 2016, this Court affirmed the trial court’s
September 4, 2015 order establishing Mother’s monthly support obligation at
$789.10 We affirmed the trial court’s evidentiary ruling regarding the
proffered physician forms regarding Mother’s health, reasoning that Mother’s
failure to serve the forms on Father “denied him the opportunity to review
the documents and level any substantive objections to their admission
without the examining physicians’ testimony.” Ferris I, 2016 WL 7103916,
at *4. With respect to Mother’s earning capacity, we stated:
[D]uring the evidentiary hearing, [Mother] testified that despite
her training, experience, and ability to earn between $27 and
$29 per hour, she elected to work twenty-four hours per week
prior to her suspension during January 2015 and only four hours
per week following her reinstatement. Hence, Mother’s actual
income is incongruous with her established earning capacity.
Although Mother claimed that stress and mental health problems
prevented her from working more than four hours per week, she
did not introduce evidence to support her claim. Recall that the
trial court sustained Father’s objection to the two physician
verification forms that Mother attempted to introduce and found
her unsubstantiated testimony incredulous.
____________________________________________
10We also noted that the trial court erred by treating Mother’s de novo
appeal as a petition for modification. Ferris I, 2016 WL 7103916, at *3.
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Id. Because the forms were not introduced, this Court deferred to the
court’s credibility determination regarding Mother’s testimony about her
stress and mental health issues, id. at *5, and concluded
[T]he certified record reveals that upon considering Mother’s
earning history, current earnings, and the prevailing economic
conditions, the trial court reasoned that Mother’s earning
capacity should more accurately reflect her earning potential
rather than her actual income. As the trial court’s rationale
addressed the appropriate considerations enumerated in Rule
1910.16–2(d)(4) and was not the result of partiality or ill-will,
we cannot find a basis to disturb its conclusion.
Id. 11
On January 6, 2017, Mother, pro se, filed a “Motion to Schedule a
Hearing to Rule on an Application for Wage Reduction.” The motion is
somewhat difficult to understand, but it appears Mother was requesting a
support modification. The motion contended that she lost her job as a
registered nurse at Saint Vincent Hospital due to the two indications of child
____________________________________________
11 This Court also observed:
In light of the fact that the initial allegation of abuse was
expunged, we reject the trial court’s rationale that Mother’s
unpaid suspension between January and July 2015 was
tantamount to a voluntary reduction in employment. However,
to the extent that Mother is terminated or endures another
unpaid suspension based upon a substantiated allegation of
abuse, we would agree with the trial court that those
consequences would constitute a voluntary reduction in income
under the guidelines. Absent these additional facts, however,
our holding is based upon Mother’s decision to reduce her work
load to four hours per week notwithstanding her ability to secure
the required CPSL clearances.
Ferris I, 2016 WL 7103916, at *5 n.5.
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abuse. Mother’s Mot. to Schedule a Hr’g on an Appl. for Wage Reduction,
1/6/17, at ¶ 3. She maintained that “there are no hospital jobs in her field
that would make up her previous wage, nor hire her due to fears of the third
child possibly [raising an indicated charge of abuse], and the indications and
expungements conflicting with attaining nursing jobs.” Id. She alleged that
due to these false indications of abuse, she was unable to work “from
January 20, 2015 to November 23rd, 2015.” Id. Mother claimed that Saint
Vincent “through physician order allowed Mother to work only four hours and
only one day a week.” Id. She also stated that she had started a minimum
wage job on March 25, 2016. Id. She repeated her argument that the
court erred in 2013 when it calculated her earning capacity. Id. Mother
maintained that she is unable to work full-time because of her age, “health,
mental and physical conditions.” Id. at 11.12
On January 12, 2017, the Erie County Domestic Relations Section filed
a petition for contempt against Mother for failure to pay. Pet. for Contempt,
1/12/17. The record does not reflect any ruling on this petition.
____________________________________________
12 Mother also referenced separate litigation tangentially related to her
support obligation. Mot. to Schedule a Hr’g on an Appl. for Wage Reduction,
1/6/17, at ¶¶ 1-2, 5-6. Mother unsuccessfully had sought to impose a
constructive trust on Husband’s undisclosed pension, which he failed to
disclose in the parties’ marital settlement agreement resolving the parties’
divorce, but, on appeal, this Court vacated that decision and remanded for
further proceedings to ascertain the value of the pension. Ferris v. Ferris,
No. 514 WDA 2015, 2016 WL 800708, at *2-*3, *5 (Pa. Super., Mar. 1,
2016). It appears that, on remand, the court imposed a constructive trust
on Husband’s pension and ordered that Mother’s marital share of that
pension be applied to her then outstanding support arrears. Mot. to
Schedule a Hr’g on an Appl. for Wage Reduction, 1/6/17, at ¶¶ 1-2, 5-6.
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On January 20, 2017, the court scheduled a March 1, 2017 de novo
hearing “due to . . . Judge Kelly’s order dated 4/1/16 & Motion to schedule a
hearing to rule o[n] an application for wage reduction.” Order, 1/20/17.
The record suggests that the court anticipated that the hearing also would
address Mother’s March 23, 2016 motion to compel the court to comply with
Rule 1910.11 (which the court held in abeyance on April 1, 2016), and
Mother’s January 6, 2017 motion.
On February 10, 2017, Mother filed a petition for modification of the
existing support order because one of her children was about to be
emancipated. On that same day, Mother filed a praecipe to attach physician
verification forms as exhibits. See Praecipe to Attach Exs., 2/10/17. These
forms, some of which are duplicates, were signed by various physicians in
January and February of 2017. The forms purported to list Mother’s medical
ailments and to identify limits on her employment. For example, one form
stated that Mother cannot work as a registered nurse and can work only
eight to twelve hours per week due to emotional exhaustion. Id. at 2.
Another form stated that Mother must work part time during the day. Id. at
7. Yet another form stated that Mother has depression and can work only
twelve hours per week. Id. at 13. Father did not file an objection to the
physician verification forms, which meant that the forms were admissible
without testimony by a physician. See Pa.R.Civ.P. 1910.29(b)(2).
At the March 1, 2017 hearing, the court acknowledged that the
hearing was being held “pursuant to” its April 8, 2016 (dated April 1, 2016)
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stay order,13 Mother’s January 6, 2017 motion to schedule a hearing, and
Mother’s February 10, 2017 petition to remove one child from the support
order. N.T., 3/1/17, at 3. Father did not oppose Mother’s February 10,
2017 petition that sought to remove one child from her support obligation.
Id. Father’s counsel also stated that, “As it relates to the underlying
petition, which I believe [is] here on remand, for lack of a better thought, I
believe that the final decision this [c]ourt made that was affirmed by the
Superior Court on two separate bases should be reinstituted and form the
basis of the order that we follow.” Id.14
Mother, who appeared at the hearing pro se, reiterated that she was
involuntarily terminated, her children were improperly taken from her, and
she could not work as a nurse while she was under investigation for child
abuse. N.T., 3/1/17, at 3-4. Mother noted that her main purpose was to
reduce the amount of arrears. Id. Mother also testified:
I was distraught with depression and anxiety and my condition
has been aggravated by accusations that have never been ruled
on. That the Court was very clear in her opinion that the ruling
was based upon what my situation was three years ago. [15] And
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13 As noted above, the trial court had stayed ruling on Mother’s March 23,
2016 motion to compel the court to comply with Rule 1910.11 because of
the then-outstanding appeal from its September 4, 2015 order.
14 This Court’s January 6, 2017 decision did not include a remand order.
15 Mother appears to have been arguing that the trial court based its holding
on her earning capacity as a registered nurse in 2014, prior to her
clearances being withdrawn due to a November 2014 allegation of child
abuse.
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besides the physician verification forms being consistent with the
ones from the summer.[16] My condition was aggravated by the
OCY ordeal which has not been considered in the court.
Id. at 5. Mother reiterated that any allegations of child abuse have been
expunged, she has been taking medication, and she was undergoing
counseling. Id. Mother seemed to argue that if she is mentally ill, she
cannot be expected to work full-time as a nurse and to have left her job
voluntarily. Id. at 5-6. Mother maintained that she cannot afford to pay the
$789 in support because she made $37,000 pre-tax in 2014. Id. at 6. She
claimed that she had been out of work since January 20, 2015, and was
“barely working” from July 17, 2015, until November 23, 2015, when she
was terminated because of a lack of clearances. Id.17
Father responded by introducing a February 12, 2015 letter from Saint
Vincent Hospital stating that Mother was not terminated on January 20,
2015, and was offered two other positions that Mother “declined due to her
personal schedule.” N.T., 3/1/17, at 7-8 (counsel quoting letter); Father’s
Ex. A to 3/1/17 Hr’g. The letter, which was from the Hospital’s Human
Resources Department and addressed to Mother, stated:
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16 As noted, Mother provided the forms in advance of the hearing pursuant
to Rule 1910.29(b)(2). The record does not show that Mother took any
additional action at the hearing to formally introduce the forms into
evidence.
17 As noted above, this Court observed that Mother was on an unpaid
suspension between January and July 2015, which we held was not a
voluntary reduction in employment. Ferris I, 2016 WL 7103916, at *5 n.5.
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We had to remove you from working in the Emergency
Department because you were convicted of child abuse and are
on the national database as a perpetrator. Because of that
conviction we had to remove you from working in areas where
you would potentially come in contact with children. We
identified two other areas, the ICU and the mental health unit
(3R) where you would not be in contact with children. Kathryn
Reeder (leader of 3R) and Rodney Buchanan (leader of
Emergency Department) met with you on January 20, 2015 to
discuss this. You have only been able to work part time, (per
diem) and are only available on specific days and hours, due to
your personal schedule. Kathryn offered to accommodate your
specific requested work schedule. However, you declined the
offer of work due to emotional stress. You stated that you would
seek medical attention for this. On 2-12-15 you presented a
note from your physician restricting you from working
indefinitely.
Your employment status is per diem so under Saint Vincent’s
policy you are not required to pick up another shift until June
2015. We have had work available in 3R but at this time due to
your physician’s restrictions, you are not able to work.
Father’s Ex. A to 3/1/17 Hr’g. The letter was admitted into evidence without
objection. Father also assailed Mother’s testimony as completely incredible.
N.T., 3/1/17, at 8.
On March 6, 2017, the court ordered that Mother’s earning capacity
remain at $3,521.57, kept her monthly support obligation at $789 plus $90
in arrears, and further removed one child from the order as of June 6, 2017,
the date that child would be emancipated:
This Order is entered as a result of a De Novo Hearing held
3/1/17 in accordance with Order dated 4/1/16 which held the
decision in abeyance. This Order also addressed [Mother’s]
petition dated 2/10/17. [Mother] shall continue to pay
$789.00/month support for three minor children as previously
ordered. Minor child . . . is removed from the Order effective
6/6/17 as she will be emancipated. Support is recalculated
using prior incomes for [Father] and [Mother]. Effective 6/6/17
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[Mother] shall pay $763.08/month support for two minor
children. [Mother’s] motion to schedule a hearing to rule on
application for wage reduction is denied.
Order, 3/6/17. The order’s last sentence referred to Mother’s January 6,
2017 motion. The court’s order did not include its reasoning.
Mother timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement identifying three issues:
1. The [trial court] disregarded the undisputed fact that Mother’s
job was terminated on November 23, 2015. Rather the Court
gave weight to a letter that was written more than eight months
before Mother was terminated; and more than three months
prior to Mother’s second indication for Emotional Child abuse.
That letter had been previously introduced, and had to do with
Mother’s first indication; which had not caused the permanent
loss of Mother’s St. Vincent Hospital job when the letter was
composed. The Mother was terminated from Saint Vincent
Hospital due to the fact that Mother could not obtain her
employment Abuse Clearance by its 11/23/2015 deadline, as her
successful OCY Expungement Hearing was on December 4,
2015. Mother’s income capacity dropped severely due to the
expunged indications, and job loss caused the Mother extreme
emotional and physical duress. She then sought the care of a
psychiatrist and counselor, and was prescribed anti-depressants
and anti-anxiety medication. Mother was unable to find any sort
of work until March 2016. Mother’s sharp reduction of income
was due to illness, termination, job elimination or some other
employment situation; none of which is voluntary; yet no
corresponding and appropriate reduction in Mother’s Support
obligation was made.
2. The [trial court] did not recuse herself despite the conflict of
interest involving the Father’s wife, who works in the Erie County
Courthouse and is directly acquainted with the judges and many
members of the court and Domestic Relations staff.
3. On March 1, 2017[,] Mother went for a hearing regarding the
Application for Support Reduction. In the resultant Order, the
Court instead increased the monthly amount, by eliminating a
downward deviation from the previous Order; for no stated
reason, and with neither petition or request. Mother’s downward
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deviation was due to Father’s wife’s obtaining the courthouse
position that she currently enjoys, and there was no cause to
remove it.
Mother’s Pa.R.A.P. 1925(b) Statement, 3/31/17.
On May 4, 2017, the trial court filed a Rule 1925(a) opinion. With
respect to Mother’s first issue, the court stated:
Mother first alleges that the [c]ourt erred by disregarding her
November of 2015 termination from employment.[FN1] Mother
asserts that Saint Vincent Health System terminated her after a
second indicated report of child abuse precluded her from
obtaining her child abuse clearances in a timely manner. Mother
testified that the second indicated report of child abuse was
expunged, but the hearing on expungement did not occur until
subsequent to the due date of her clearances to her employer.
Father asserts that Mother’s own actions resulted in her job loss.
In support of his claim, Father presented a letter from Saint
Vincent Health System to Mother indicating that Mother refused
jobs available to her, which did not require Mother to have
clearances. The letter presented by Father does not coincide
with Mother’s termination date. Nevertheless, it demonstrates
that, just nine months prior to Mother’s termination, her
employer was able and willing to provide her with a job despite
an indicated child abuse report. Accordingly, Father’s evidence
contradicts Mother’s testimony that, without her clearances, she
is unable to work. For example, Mother testified that she has
“been out of work since November 23rd but also technically since
January 20th, that I could not work due to the first OCY charge.”
Similarly, she testified “no one can work at any job while
indicated.” Meanwhile the letter demonstrates that the OCY
finding and Mother’s resulting inability to obtain her clearances
did not preclude her from working at Saint Vincent Health
System. Not only was Mother’s employer willing to provide her
with an alternate position, but it was willing to do so on her
terms of a limited schedule. Accordingly, it brings into question
Mother’s credibility on the issue that she was terminated
because she could not obtain her clearances. In the months
prior to her termination, Mother chose not to work, despite her
employer’s offer of employment, and then misled the Court
regarding the situation. In that regard, there is credibility to
Father’s position that Mother is again failing to fully represent
the circumstances of the end of her employment.
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[FN1] To the extent that Mother continues to allege that she is
medically unable to work due to depression and anxiety
caused by the loss of her children, this issue has been fully
litigated and cannot be raised again. Specifically, Mother
raised this issue for consideration when the [c]ourt entered
the September 4, 2015 child support order. Mother appealed
the order and the Superior Court upheld this [c]ourt’s
determination that Mother did not meet her burden on the
issue. Mother does not allege that her condition has
worsened or in any way changed since entry of the
September 4, 2015 order. She cannot use a petition for
modification as a second chance to meet her burden.
Regardless, Mother’s job loss does not demonstrate a material
and substantial change in circumstances since entry of the last
child support order. A court may only modify a child support
order when the party requesting modification shows a material
and substantial change in circumstances since the order was
entered. At the time of entry of the 2015 order, Mother had
already reduced her hours and income so substantially that she
earned well below her earning capacity.[18] Specifically, she
worked only four hours per week. Mother’s loss of only four
hours of income per week is simply not a material and
substantial change in circumstances, particularly considering the
recently affirmed earning capacity determination. The Court
understands that the expungement would have allowed Mother
to obtain her clearances, had it occurred in time. Nevertheless,
the circumstances do not negate the fact that Mother, prior to
imposition of the last support order, was working so woefully
below her earning capacity that she was practically unemployed.
In that regard, the fact that Mother now has a minimum wage
job simply is not a material and substantial change in
circumstances.
Trial Ct. Op. at 4-6 (citations omitted).
Mother’s appellate brief raises the following issues:
____________________________________________
18 In support of this statement, the trial court cited its Pa.R.A.P. 1925(a)
opinion prepared in response to Mother’s appeal from the September 4,
2015 order.
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[1.] Whether the trial court erred and/or abused its discretion
when it failed to consider the Mother’s change in salary since
2013 to the present time of 2017[.]
[2.] Whether the court erred and/or abused its discretion when it
found that the Mother suffered from a mental health condition
that impacted her ability to care for her patients[.]
[3.] Whether the trial court erred and/or abused its discretion
when disregarding an order from the court [that] acknowledges
this is a different case with a different number and the court also
knows that the Mother switched from being beneficiary of
monthly child support, to being the obligee since it expressly
states this.
[4.] Whether the court erred and[/]or[] abused its discretion in
continuing to let Father continue to have full legal custody even
when Mother has been cleared of all emotional abuse indications.
Mother’s Brief at § V (unpaginated).19 Mother waived her last two issues, as
they were not in her Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4).
Mother made no arguments in her appellate brief in support of those issues.
We therefore limit our discussion to Mother’s first two issues.
Initially, we are beset by confusion regarding the nature of the hearing
before the trial court. The docket reflects that on February 4, 2016, Father
filed a pro se petition for modification, but no such petition is included in the
record. At the resulting February 24, 2016 office conference, the summary
by the trier of fact indicates that the reason for the conference was to
resolve Mother’s petition to suspend her support obligation, but that petition
____________________________________________
19Mother included several documents in her reproduced record, such as the
Saint Vincent letter purportedly terminating her, that do not exist in the
certified record; accordingly, we have not considered them. See generally
Pa.R.A.P. 1921 (consideration of the certified record).
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is not in the record or on the docket either. In any event, the officer
forwarded the entire matter to the trial court, given the then-outstanding
appeal, for a hearing on March 31, 2016. At that hearing, the court
indicated the purpose of the hearing was to resolve Mother’s phantom
petition to suspend, Mother’s March 23, 2016 motion, and Father’s objection
to Mother’s praecipe to attach exhibits. The court stayed its rulings because
of the outstanding appeal. Order, 4/8/16 (dated 4/1/16). After this Court
resolved Mother’s appeal on December 6, 2016, Mother filed a motion on
January 6, 2017, titled “Motion to Schedule a Hearing to Rule on an
Application for Wage Reduction,” and another motion on February 10, 2017,
to remove one child from the support order. In sum, the court’s March 1,
2017 hearing was purportedly to resolve Mother’s petition to suspend, as
well as her motions filed on March 23, 2016, January 6, 2017, and
February 10, 2017.
Given this procedural morass (which was complicated by references to
Mother’s seemingly nonexistent petition to suspend her support obligation)
and given Mother’s consistent arguments that relate to modification or
reduction of her support obligation, we construe Mother’s March 23, 2016
and January 6, 2017 motions as petitions for modification of an existing
support order based upon a material and substantial change in
circumstances namely, Mother’s November 2015 termination from Saint
Vincent Hospital.
The standard of review for an order resolving such a petition follows:
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A trial court’s decision regarding the modification of a child
support award will not be overturned absent an abuse of
discretion, namely, an unreasonable exercise of judgment or a
misapplication of the law. An 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.A. § 4352(a); see also Pa.R.C.P. 1910.19.
Plunkard v. McConnell, 962 A.2d 1227, 1229 (Pa. Super. 2008) (some
citations omitted), appeal denied, 980 A.2d 111 (Pa. 2009). “Where the
evidence is insufficient to sustain the order, an abuse of discretion will be
found.” Grimes v. Grimes, 596 A.2d 240, 241 (Pa. Super. 1991) (citation
omitted).
Mother interprets our decision resolving her appeal from the
September 4, 2015 order to mean that so long as she had clearances and
employment at Saint Vincent Hospital, she had the earning capacity of a full-
time nurse. Mother insists that her claim of termination has never been
litigated because the trial court’s September 4, 2015 support order predated
her November 2015 firing. Mother’s Brief at 15-16 (unpaginated). Mother
claims she could not work at all, as she was indefinitely suspended until her
clearances were restored. Id. at 16. She states that she was fired because
Saint Vincent Hospital was “tired of the endless entanglements, and fully
expected another malicious OCY action regarding the third child.” Id.
Mother insists she presented evidence that she was “terminated with a
proper letter,” and that she unsuccessfully attempted to reapply for a
nursing job at Saint Vincent and other nursing jobs after her clearances were
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restored. Id. at 16-17. She appears to argue that because she could not
obtain a full time nursing job due to her firing, she should not be imputed
with the earning capacity of a full time nurse. Id. at 16. She claims that
the abuse indications and custody issues have taken a “toll on Mother’s
emotional and physical health, leaving her with crippling migraines, reduced
functionality and an inability to generate sufficient income.” Id. at 17.
Those physical and emotional problems now prevent her from working full
time. Id.
Rule 1910.19 governs petitions for modification:
(a) A petition for modification or termination of an existing
support order shall specifically aver the material and substantial
change in circumstances upon which the petition is based. A new
guideline amount resulting from new or revised support
guidelines may constitute a material and substantial change in
circumstances. The existence of additional income, income
sources or assets identified through automated methods or
otherwise may also constitute a material and substantial change
in circumstances.
...
(c) Pursuant to a petition for modification, the trier of fact may
modify or terminate the existing support order in any
appropriate manner based upon the evidence presented without
regard to which party filed the petition for modification. If the
trier of fact finds that there has been a material and substantial
change in circumstances, the order may be increased or
decreased depending upon the respective incomes of the parties,
consistent with the support guidelines and existing law, and each
party’s custodial time with the child at the time the modification
petition is heard.
Pa.R.Civ.P. 1910.19(a), (c). “The burden of demonstrating a ‘material and
substantial change’ rests with the moving party, and the determination of
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whether such change has occurred in the circumstances of the moving party
rests within the trial court’s discretion.” Plunkard, 962 A.2d at 1229.
Rule 1910.16-2(d) provides guidance on what constitutes a material
and substantial change:20
(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.
Pa.R.Civ.P. 1910.16-2(d)(1)-(2). As this Court in Beegle v. Rasler, 576
A.2d 1100 (Pa. Super. 1990), expressed:
It is true that as a general rule the earning capacity, not the
actual earnings, is the determinative factor in ascertaining the
ability to pay support. This rule, however, is not without
exceptions, such as those situations where the income is
reduced involuntarily through illness, layoff or some other factor
over which the parent has no control.
Id. at 1102 (citations omitted). Finally, “[t]his Court will not reverse
credibility determinations as long as they are supported by the evidence.”
____________________________________________
20 Rule 1910.16-2 addresses the calculation of monthly income for purposes
of identifying the amount of support that should be paid.
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Morgante v. Morgante, 119 A.3d 382, 395 (Pa. Super. 2015) (reversing
credibility determination given absence of testimonial support).
We must decide this case in the context of our earlier decision in
Ferris I, in which we decided that the trial court did not err when it based
its September 4, 2015 support order on Mother’s potential earning capacity
and held that Mother had failed to prove that her income had involuntarily
been reduced as a result of her physical and emotional condition. Our
decision on those issues is binding as the law of this case, and the trial court
correctly held it was not free to depart from them. Nevertheless, Mother
was entitled to try to show that conditions had changed since the
September 4, 2015 support order and that her support obligations should be
modified in light of those changed conditions.
Mother contends that her November 2015 termination from Saint
Vincent Hospital was a “material and substantial change in circumstances”
that entitled her to an adjustment of her support obligation. See Pa.R.Civ.P.
1910.19(a), (c). She contends that because of the firing, her earning
capacity as a nurse was “reduced involuntarily through illness, layoff or
some other factor over which [she had] no control.” Beegle, 576 A.2d at
1102. Mother promptly filed a petition for modification after she was
terminated. At the office conference, however, the officer focused on
Mother’s pre-termination earning capacity, which was then on appeal to this
Court. Summary of Trier of Fact, 1/13/16, at 2. There was no indication
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that the officer addressed whether Mother’s income was reduced
involuntarily in November 2015. See Beegle, 576 A.2d at 1102.
On February 24, 2016, Mother again asserted she was terminated
because she could not obtain child abuse clearances, as her last indication of
abuse was not expunged until December 2015. The officer noted that
Mother sought to provide updated medical documentation regarding her
ability to work. Father countered that the medical documentation was
previously considered and found deficient on September 4, 2015, but in fact
the court never considered the medical documentation because it sustained
Father’s objection to its presentation. Father also asserted Mother was
terminated for cause. The officer opted to refer the matter to the trial court,
which, after a hearing, ultimately, stayed its ruling pending the outcome of
the then-outstanding appeal. Order, 4/8/16.
On March 1, 2017, the trial court again held a hearing on Mother’s
petitions for modification of support due to material and substantial change
in circumstances, and it denied the petitions. The court’s Rule 1925(a)
decision explaining its ruling focuses largely on Saint Vincent’s February 12,
2015 letter, but that letter predated Mother’s November 2015 termination by
nine months. See Father’s Ex. A to 3/1/17 Hr’g. The letter cannot establish
whether Saint Vincent fired Mother for cause or terminated her for lack of
clearances nine months after it was written. 21 The trial court held, however,
____________________________________________
21 It may be that the letter could implicate Mother’s earning capacity and her
(Footnote Continued Next Page)
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that the letter was probative of Mother’s lack of credibility regarding whether
she was involuntarily terminated in November 2015. While we acknowledge
that credibility determinations are within the sole province of the fact-finder,
they must be supported by the record. See Morgante, 119 A.3d at 395.
Other than arguing that Mother’s testimony was not credible, Father did not
offer any other evidence to rebut Mother’s testimony, N.T., 3/1/17, at 3-4,
that she was involuntarily terminated.
The court then opined that Mother’s termination was not a material
and substantial change in circumstances because Mother was
underemployed and earning below her earning capacity. See Trial Ct. Op. at
5. In support, the trial court referenced its Rule 1925(a) opinion (which
predated Mother’s termination) and this Court’s memorandum decision,
neither of which addressed the circumstances of Mother’s November 2015
termination. The trial court reasoned that since Mother had worked only
four hours per week, a loss of those hours is not a material and substantial
change in circumstances, “particularly considering the recently affirmed
earning capacity determination.” Id.22 Whether Mother was underemployed
as compared to her earning capacity does not address Mother’s assertion
(Footnote Continued) _______________________
ability to work at Saint Vincent in February 2015, and, perhaps,
subsequently. But the letter simply does not, and could not, address the
circumstances surrounding Mother’s November 2015 termination.
22The trial court’s reasoning does not acknowledge scenarios involving low-
hour, high-income wage earners, but we recognize that the facts do not
suggest that this scenario is applicable here.
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that she was involuntarily laid off. See Pa.R.Civ.P. 1910.16-2(d); see
Beegle, 576 A.2d at 1102.
Related to all of these issues is Mother’s continued insistence that her
reduced work hours are the result of ongoing physical and emotional
disabilities. The trial court held that our decision affirming its September 4,
2015 order fully resolved that issue, and that Mother is precluded from
raising it again. Trial Ct. Op. at 4 n.1. The trial court has never considered
Mother’s medical evidence on this issue, however. In 2015, the court
sustained Father’s objection to the medical documentation Mother sought to
submit at that time — an evidentiary ruling that this Court affirmed. See
Ferris I, 2016 WL 7103916, at *4. But at the 2017 hearing, Mother
referenced new medical documentation about her present condition, and
Father did not object to those forms’ admissibility. Because the Physician
Verification Forms were signed by Mother’s physicians in January and
February of 2017, they provide information about Mother’s current condition,
in contrast to the information proffered in 2015. The trial court stated that
Mother does not contend that her medical condition has changed, but
Mother’s testimony at the hearing included assertions that her condition “has
been aggravated” and is different from “what my situation was three years
ago,” and that her aggravated condition “has not been considered in the
court.” N.T., 3/1/17, at 5. No court has ever addressed the substantive
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merit of Mother’s medical evidence.23
Given these deficiencies, we deem it appropriate to vacate the order
below, and remand with instructions to hold a de novo hearing to resolve
whether Mother’s earning capacity as a nurse was “reduced involuntarily
through illness, layoff or some other factor over which the parent has no
control.” See Beegle, 576 A.2d at 1102. All issues properly raised and
preserved by Mother shall be addressed.24
Order vacated. Case remanded for further proceedings. 25 Jurisdiction
relinquished.
____________________________________________
23 We also note that the February 12, 2015 letter from Saint Vincent Hospital
on which the trial court so heavily relied stated that the “personal schedule”
that limited Mother’s work hours at that time was the result of a claim by
Mother to “emotional stress” for which she was seeking medical attention
and about which she had “presented a note from [her] physician restricting
[Mother] from working indefinitely.” See Father’s Ex. A to 3/1/17 Hr’g. This
information is relevant to the trial court’s assessment of Mother’s credibility
with respect to her employment at Saint Vincent. The trial court’s holding
that it could not consider such evidence may have interfered improperly with
that credibility assessment.
24If Mother wishes to present medical evidence in support of her position,
she shall comply with Rule 1910.29(b)(2).
25 Because of our disposition, we do not address Mother’s other arguments.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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