Morgan, S. v. Morgan, D.

J-A10014-14
2014 PA Super 176SHERI A. MORGAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIEL T. MORGAN, :
:
Appellant : No. 1463 MDA 2013
Appeal from the Order entered July 11, 2013,
Court of Common Pleas, Franklin County,
Domestic Relations at No. 2009-557
SHERI A. MORGAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DANIEL T. MORGAN, :
:
Appellee : No. 1525 MDA 2013
Appeal from the Order entered July 11, 2013,
Court of Common Pleas, Franklin County,
Domestic Relations at No. 2009-557
BEFORE: DONOHUE, ALLEN and STABILE, JJ.
OPINION BY DONOHUE, J.: FILED AUGUST 21, 2014
rder of
court regarding his child support obligation for C.M., his un-emancipated
1
Mother has filed a cross-appeal,
1
C.M. is severely autistic and cannot live on his own. In his appeal, Father
does not contest his obligation to provide support for C.M., only the amount
of support determined by the trial court.
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amount of thereof. Following our review, we affirm the trial court with
issues raised by Mother in her cross-appeal.
In 2003, the parties were divorced in Maryland. In conjunction with
the divorce, the parties entered into a property settlement agreement
alimony and child support.2
obligation would remain fixed until July 1, 2007, after which either party
could seek to modify the amount of the obligation. The PSA was
incorporated into the divorce decree.
On May 3, 2007, Father registered the Maryland divorce decree and
PSA in Franklin County. Almost immediately thereafter he filed a petition
seeking to reduce his alimony obligation. In response, Mother filed a
obligation, including an appeal to this Court, our remand to the trial court for
further evidentiary proceedings, and then a subsequent appeal.
In 2011, as the second appeal from the alimony proceedings was
pending before this Court, Mother filed a support action because Father told
2
The parties are the parents of three children. At the time of the
proceedings underlying this appeal, all of the children had attained the age
of majority.
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her that he was going to cease paying child support for C.M. As part of the
information to the trial court that revealed that Father had been lying about
his income and submitting falsified documents, including federal tax returns,
to the trial court in connection with the alimony action. It was later
discovered that the tax returns Father produced in the support action after
his deceit in connection with the alimony proceedings had been discovered
protracted discovery period. As a result, the parties did not appear before
a second day of hearings held in September 2012. The trial court
providing that it would apply retroactively to May 3, 2007 (the date Father
d PSA in Franklin County) and
support award, the trial court assigned Mother an income of $92,5003 and
prescribed by the Child Support Guidelines because of the minimal custodial
time Father has with C.M. On July 11, 2013, the trial court amended this
order to provide, inter alia
3
The trial court assessed an earning capacity of $80,500 against Mother and
then added $12,000 this figure, which represents the $1000 per month
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retroactively to May 3, 2007. Father timely appealed and Mother timely filed
her cross-appeal.
Our scope of review when considering an appeal from a child support
order is as follows:
When evaluating a support order, this Court may
only reverse the trial court's determination where the
order cannot be sustained on any valid ground. We
will not interfere with the broad discretion afforded
the trial court absent an abuse of the discretion or
insufficient evidence to sustain the support order. An
abuse of discretion is not merely an error of
judgment; if, in reaching a conclusion, the court
overrides or misapplies the law, or the judgment
exercised is shown by the record to be either
manifestly unreasonable or the product of partiality,
prejudice, bias or ill will, discretion has been abused.
In addition, we note that the duty to support one's
child is absolute, and the purpose of child support is
to promote the child's best interests.
McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (internal
citations omitted).
We begin with the issue presented by Father in his appeal, which he
not merged, into a divorce
was arrived at through an agreement, rather than support proceedings, and
because this agreement was incorporated, rather than merged, into the
divorce decree, the trial court lacked jurisdiction to modify his support
obligation. Id. at 22-25.
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Father is correct that in our law, martial settlement agreements that
are merged into a divorce decree are treated differently than agreements
that are incorporated into the divorce decree. See Jones v. Jones, 651
A.2d 157, 158 (Pa. Super. 1994) (holding that an agreement that merges
into the divorce decree is enforceable as a court order, but an agreement
rvives as an enforceable contract [and] is
to the provisions of such agreements that concern matters of child support
or custody. The Divorce Code specifically provides that regardless of
whether an agreement between parties is merged or incorporated into the
visitation or custody shall be subject to modification by the court upon a
showing of changed circums see also
McClain, 872 A.2d at 862-63. The Pennsylvania Supreme Court explained
action may bargain between themselves and structure their agreement as
best serves their interests. They have no power, however, to bargain away
Knorr v. Knorr, 588 A.2d 503, 505 (Pa.
into their divorce decree, the trial court had jurisdiction to modify the
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4
There is no merit to
5
We now turn our attention to the issues Mother raises in her cross-
appeal. She first argues that the trial court erred by assigning her an
-the-
of a caretaker for C.M. roughly would be equivalent to the income she could
Brief at 36-42.
Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4), addressing
earning capacities, provides as follows:
If the trier of fact determines that a party to a
support action has willfully failed to obtain or
maintain appropriate employment, the trier of fact
may impute to that party an income equal to the
party's earning capacity. Age, education, training,
health, work experience, earnings history and
child care responsibilities are factors which
shall be considered in determining earning
capacity. In order for an earning capacity to be
4
26-27. Father completely fails to address subsection (b), the salient
provision, in his argument.
5
As this appeal was pending, Father filed an Application for Remand, in
jurisdiction and posited that because the trial court lacked jurisdiction to
modify his support obligation, there was no valid order underlying his
appeal. See Application for Remand, 10/1/13. As we have found that the
application.
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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) (emphasis added).
would consume her income base, explaining as follows:
This [c]our
income she did receive from employment would be
consumed by the need for an alternative caregiver
for [C.M.] However, the [c]ourt notes that this
argument is entirely speculative. Until Mother
actually gets a job, this [c]ourt has no way of
knowing how many hours that job would require
Mother to be in the office or how much time Mother
would spend commuting to and from work. The
[c]ourt also does not have sufficient evidence as to
how Mother currently handles care for [C.M.] when
she is unavailable to provide such care due to her
extensive work with Democratic politics and when
she is completing work toward her Ph.D. outside the
home. Therefore, this [c]ourt cannot accurately
determine for how many hours Mother would need to
hire an alternative caregiver in the case of her return
to the workforce. The [c]ourt also notes its concern
reserved for a future proceeding in which the issue is
not merely speculation. Mother may be entitled to
compensation or credit for her expense in providing
alternate care for [C.M.], but that issue is not
currently before this [c]ourt and thus this [c]ourt will
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not deduct any amount f
capacity for that purpose.
Trial Court Opinion, 6/10/13, at 17.
We see in this explanation that the trial court considered child care
costs as required by Pa.R.C.P. 1910.16-2(d)(4), but concluded that no
ning capacity was warranted because there was
no credible evidence as to the cost or frequency of need for a caregiver.
There is no requirement in the Rule that the trial court must adjust the
ealth, work
which the earning capacity is being assigned; the Rule requires only that the
trial court consider these factors. See Pa.R.C.P. 1910-16.2(d)(4). The trial
court did so in this instance, and it rejected the evidence Mother put forth on
Krankowski v. O'Neil,
928 A.2d 284, 287 (Pa. Super.
will not be disturbed on appeal unless the trial court failed to consider
properly the requirements of the Rules of Civil Procedure Governing Actions
for Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying
Id. at 286. As recounted above, the trial court properly
considered the requirements of Rule 1910.16-2(d), and so we may not
disturb its determination.
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In her second issue, Mother argues that the trial court erred in
calcula
47. The trial court arrived at the $80,500 figure based upon the testimony
trial court stated,
At the hearing
vocational expert, testified regarding his vocational
assessment of Mother, based on an interview he had
with her and her educational background. Mr.
experience [and] education, he would consider her to
be extremely employable. He testified that he had
researched employment opportunities that Mother
degree. Among these opportunities were openings
for a research coordinator, resource coordinator, and
nurse analyst. The salaries for these available jobs
ranged from $64,000 to $97,000. The [c]ourt
believes Mr. Bierley testified credibly and will rely on
The average range of these salaries is $80,500 and
therefore, this [c]ourt will use this figure in
Trial Court Opinion, 6/10/13, at 17-18 (citations to notes of testimony
omitted).
We have reviewed the record and must conclude that it does not
See N.T., 7/2/12, at 100-01. However, Mr. Bierley further testified that at
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the time of the hearing, Mother could expect to earn approximately $60,000
to $65,000, and only after a few years in the workforce would she be able to
earn the higher end of the salary range he projected. Id. at 100, 102, 104.
had been out of the workforce for twelve years at the time of the hearing,
had an immediate earning capacity of $80,500. The trial court abused its
discretion in this regard, and so we vacate this portion of its order and
See Glover v.
Severino
Mother also argues that the trial court erred in applying her earning
capacity retroactively to the date she filed the support complaint, May 3,
in 2008,
she lacked the educational credentials to qualify for the jobs, and therefore,
-52.
However, the record reveals that Mr. Bierley testified that Mother could
expect to earn within the same range (between $65,000 and $90,000) for
jobs with her RN degree, and that such salaries were not dependent on
-03.
Id. at 116. Accordingly,
we find no merit to this argument.
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In her final issue, Mother complains that the trial court erred by not
including an upward deviation from the Support Guideline calculation of
of C.M. less than five
a Comment to Pa.R.C.P. 1910.16-4. Rule 1910.16-4 sets forth a formula for
the calculation of a child support obligation and includes a subsection
providing that this obligation may be reduced when the child or children are
in the custody of the obligor for at least 40 percent of the time. Pa.R.C.P.
1910.16-
deviation should be considered in cases in which the obligor has little or no
-16-4, Comment (2010). Mother
urges that because in this case, Father has virtually no contact with C.M.,
the trial court erred by not including an upward deviation.
finding that Mother has denied Father access to C.M. and that Father cannot
turn to the courts for access to his son because C.M. is over 18 years of age,
and therefore not subject to a custody action. Trial Court Opinion, 6/10/13,
at 19-
whether
justified or not to allow Father access to C.M. on perhaps as little as one
occasion is well taken. However, the Comment to Rule 1910-16(4) only
suggests that upward deviation be considered; it does not require it. In this
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not allowed him to see C.M., and it was unwilling to encourage such
behavior by Mother by tying a portion of the child support to a drastically
reduced custody schedule, over which Mother has complete control. The
see N.T., 9/20/12, at 94-95, 120, and our law
does not require that an upward deviation must be applied. We therefore
find no abuse of discretion by the trial court.
In conclusion, we summarize our disposition of the various matters
to Mother and remand for further proceedings with regard to this issue. We
affirm the trial court order in all other respects.
Order affirmed in part and reversed in part. Case remanded for
further proceedings. Application for remand denied. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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