J.A.R. v. H.R.H.

J-S36017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.A.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
H.R.H. : No. 119 MDA 2019
Appeal from the Order Entered January 10, 2019
In the Court of Common Pleas of Dauphin County Domestic Relations at
No(s): 00588-DR-18,
PACSES NO. 260117077
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 15, 2019
J.A.R. (“Father”) appeals pro se from the order granting the petition of
H.R.H. (“Mother”) and terminating the order requiring her to pay child support
to Father. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
The parties are the parents of two children currently nine
and seven years of age (DOB 12/09 and 8/11). Mother and Father
lived together for a number of years before marrying in 2012.
They separated in July 2014 and divorced in July 2018. Following
their separation, Mother exercised primary physical custody
though most recently, commencing in July 2018, the parties
began equally sharing physical custody of the children.
On September 21, 2018, Father filed a complaint seeking
child support from Mother. Following a support conference and
upon recommendation of the support officer, [the trial court]
issued an order directing Mother [to] pay child support to Father
of $394 per month under the Support Guidelines, plus $40 per
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* Retired Senior Judge assigned to the Superior Court.
J-S36017-19
month for arrears.[1] (See N.T. [9/21/18] 5–6) In calculating
support owed, the conference officer assigned Mother a monthly
net income of $3,162 based upon her employment income. Father
was assigned an annual earning capacity of $33,000 resulting in
a monthly net income of $2,232. At the time of the [support]
conference, Father was self-employed as a freelance programmer
and technical copywriter making about $300 per week/$15,600
per year. (N.T. 4) The $33,000 annual income assigned to Father
by the conference officer was based upon the entry level salary
for a computer operator with the Commonwealth and factored in
that Father had a prior criminal felony conviction. (N.T. 4)
Mother filed a request for a de novo review challenging the
earning capacity assigned to Father. [The trial court] held a
hearing on January 9, 2019. At the outset, [the trial court noted]
that there was little evidence presented on the record concerning
Father’s prior conviction, so [it took] judicial notice of his criminal
file. It reflects that Father was arrested in January 2004 on seven
counts of sexual abuse of children arising from his possession of
child pornography (18 Pa.C.S.A. § 6312(d)). Father entered a
guilty plea in April 2005 to one count of sexual abuse of children
and the other counts were withdrawn. He received a probationary
sentence which was later revoked ultimately resulting in him
serving the balance of his 1 ½ - to 3-year term [of] imprisonment
at a state correctional institution. His maximum term expired in
approximately February of 2009. Father has not had any other
criminal convictions since that time.
Father, currently 46 years old, testified that he obtained a
bachelor’s degree in computer science in 2014. At the time he
was living in the same house with Mother and allegedly took care
of the parties’ children full-time for two years. (N.T. 9–10) Father
did not offer any testimony about any efforts to find employment
between 2016 and 2018. He claims he recently learned that the
Commonwealth of Pennsylvania is a felony friendly employer and
that in the two months prior to the de novo hearing, he submitted
26 applications with the Commonwealth. (N.T. 8) He has gotten
a call back on one, for a management technician position with the
EPA, which offered an entry level salary range between $37,000
to $60,000. (N.T. 8)
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1 The order was filed on November 19, 2018, with an effective date of
September 21, 2018. Order, 11/19/18, at 1, 2.
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Father considered himself a “generalist” in the computer
field with moderate experience as a programmer. (N.T. 10) He
has also garnered experience as a website developer, which has
provided him some income, and believed he could possibly provide
entry level computer network support. (N.T. 10–11) He denied
any expertise or certification as a network administrator,
computer systems administrator, data base administrator or
computer network architect. (N.T. 10–11) Mother disputed that
Father lacks expertise as a network administrator and most of the
other areas he claimed he lacked experience. (N.T. 11) The entry
level salary with the Commonwealth is $41,000 for a web
developer, $42,000 for a computer programmer and computer
network support, and $51,000 for network system administrator.
(N.T. 11–12)
At the conclusion of the testimony, [the trial court] directed
that Father be held to an annual earning capacity of $45,000, not
considering his felony history. (N.T. 14) The domestic relations
director attending the hearing then applied Father’s new income
to the Support Guidelines and after accounting for credits due
Mother for substantial share of custody, summer camp
expenditures and medical insurance, she was found to owe Father
$6.30 per month. Because the figure was de minimis, [the trial
court] entered an order January 10, 2019 terminating/suspending
the support order that had directed Mother [to] pay child support
to Father. (N.T. 14–16)
Trial Court Opinion, 3/13/19, at 1–3 (footnotes omitted).
Father filed a timely notice of appeal. Both Father and the trial court
complied with Pa.R.A.P. 1925. On appeal, Father presents a single question
for our consideration: “Did the court abuse its discretion in assigning a higher
earning capacity to Father in the amount of $45,000?” Father’s Brief at 4.
Our standard of review of a trial court’s decision in a support case is well
settled:
“The principal goal in child support matters is to serve the best
interests of the children through the provision of reasonable
expenses.” R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013).
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Father has an absolute duty to provide for his [two] children
financially even if it causes hardship or requires sacrifice.
Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 638 (2003)
(citation and internal quotations omitted) (“In a child support
hearing, the main concern is for the welfare of the child. Each
parent has a duty which is well nigh absolute to support his or her
minor children and each may have to make sacrifices in order to
meet this burden.”).
We review a child support order for an abuse of discretion.
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015). “[T]his
Court may only reverse the trial court’s determination where the
order cannot be sustained on any valid ground.” R.K.J., supra.As this Court previously articulated, “An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias
or ill-will, as shown by the evidence of record.” Id.E.R.L. v. C.K.L., 126 A.3d 1004, 1006–1007 (Pa. Super. 2015). Furthermore:
“[o]rdinarily, a party who willfully fails to obtain appropriate
employment will be considered to have an income equal to the
[party’s] earning capacity.” Pa.R.Civ.P. 1910.16–2(d)(4).[2] The
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2 This provision of the Support Guidelines reads as follows:
(d) Reduced or Fluctuating Income.
(4) Earning Capacity. If the trier of fact determines that a party
to a support action has willfully failed to obtain or maintain
appropriate employment, the trier of fact may impute to that party
an income equal to the party’s earning capacity. Age, education,
training, health, work experience, earnings history and child care
responsibilities are factors which shall be considered in
determining earning capacity. 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
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determination of a parent’s ability to provide child support is based
upon the parent’s earning capacity rather than the parent’s actual
earnings. See Kelly v. Kelly, 633 A.2d 218 ([Pa. Super.] 1993).
Laws v. Laws, 758 A.2d 1226, 1229 (Pa. Super. 2000). A party’s age,
education, training, health, work experience, earnings history, and childcare
responsibilities are factors that shall be considered in determining earning
capacity. Id. (citing Pa.R.C.P. 1910.16–2(d)(4)). In appropriate cases,
however, the “earning capacity of a parent who elects to stay home with a
young child need not be considered.” Reinert v. Reinert, 926 A.2d 539, 543
(Pa. Super. 2007) (citing Kelly, 633 A.2d at 219).
Father attributes his low earning status between the years of 2010 and
2014 to being a stay-at-home parent, a full-time student, a convicted felon,
and a registered sex offender. Father’s Brief at 11–12. Father explains that,
after completing his degree in 2014, he chose to focus on “expanding his self-
employment” “because of his registration requirements, combined with his
responsibility as primary caregiver” for his children. Id. at 12. Father
acknowledges that he “began searching for jobs in his field in a more
traditional mode of employment” after his registration requirements ended in
September 2018. Id. at 14. He contends, however, that having to provide
____________________________________________
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).
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childcare for his children before and after school “limits his options for what
he can apply to in order to maintain a commensurate level of income to what
he has now.” Id. at 16. Father also complains that the trial court considered
“the felony as if it were a voluntary reduction of income.” Id. at 16.
In response, Mother contends that Father “did not offer any testimony
about any efforts to find employment between 2016 and 2018.” Mother’s Brief
at 6. She highlights Father’s testimony that he submitted twenty-six
applications in the two months leading up to the de novo hearing and received
an interview for an entry-level management technician position as evidence
that “he had willfully failed to obtain or maintain employment.” Id. According
to Mother, Father’s testimony, his “age, education, training, health, work
experience, earnings, history, and child care responsibilities,” support the trial
court’s finding that Father has “an annual earning capacity of $45,000, without
consideration of his felony history.” Id.
After considering the parties’ testimony and the applicable law, the trial
court rejected Father’s assertions:
In granting Mother’s support appeal, I found that based
upon the evidence, Father has willfully failed to obtain appropriate
employment commensurate with his training and education. The
testimony revealed that while Father obtained his computer
science degree in 2014, he failed to seriously look for employment
in that field until almost 2019. Even with the meager effort
exhibited to date, within just two months of trying, he was able to
get an interview (scheduled after the de novo hearing) for a
computer-related position paying between $37,000 and $60,000.
It is likely and realistic that Father—even with a felony history—
would be making at least $45,000 a year by now, and possibly
much more, had he made a proper effort to find employment in
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the computer field soon after he obtained his degree in 2014.
Instead, the record shows that while he has been hampered to a
degree by his prior conviction, he has been much more hampered
by his failure to look for jobs commensurate with his education
level and field of study.
Trial Court Opinion, 3/13/19, at 4.
Upon review, we discern no abuse of the trial court’s discretion in
assigning Father an earning capacity of $45,000. At the de novo hearing, the
domestic relations representative, Ms. Kim Robinson, explained that the
conference officer held Father to an earning capacity of $33,000 based on his
application for a computer operator position with the Commonwealth. N.T.,
1/9/19, at 4. Mother presented unrefuted evidence of available computer-
related jobs with salaries ranging from $43,000 to $65,000; she also testified,
without challenge, to Father’s qualifications and references and to the fact that
she has “been doing most of the job research” for Father. Id. at 7, 12, 13.
Father acknowledged that he had applied for twenty-six computer-related jobs
within the previous two months and received an interview for an entry-level
management technician position with a salary range of $37,000 to $60,000.
Id. at 8–9. Since receiving his degree in 2014, Father chose not to seek
traditional employment because he was caring for the children. Id. at 9–10.
Yet, Mother had primary custody of the children until July 2018 and paid for
their extracurricular activities and sixty percent of their health insurance.
Father’s Brief at 13; N.T., 1/9/19, at 3–4, 6. Father also chose not to seek
traditional employment until after his registration requirements ended
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because employers were not “felon friendly.” N.T., 1/9/19, at 9, 14. As the
trial court observed, the felony “is his fault,” yet Father used his conviction as
an excuse for not seeking traditional employment in the computer field. Id.
at 14.
Reiterating that Father has an absolute duty to provide for his children,
we discern no error of judgment, no overriding or misapplication of the law,
no manifestly unreasonable exercise of judgment, no partiality, prejudice, bias
or ill will in the trial court’s terminating Mother’s support order based on
Father’s earning capacity. E.R.L., 126 A.3d at 1007. Thus, Father is not
entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/15/2019
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