C.D.S. v. R.J.S.

J -A09041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 6537
C.D.S., : IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
R.J.S.,
Appellant : No. 1477 WDA 2019
Appeal from the Order Entered August 30, 2019
in the Court of Common Pleas of Butler County
Domestic Relations at No(s): 39846
BEFORE: SHOGAN J., MURRAY, 3. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 14, 2020
R.J.S. (Father) appeals from the August 30, 2019 order requiring him
to pay child and spousal support to C.D.S. (Mother). We quash the appeal
as it relates to the order of spousal support because that portion is
interlocutory due to the parties' pending divorce, and affirm the order as it
relates to child support.
Father and Mother were married in September 2011, and separated on
November 1, 2017. They are the parents of three children (Children), born
in June 2013, October 2014, and July 2016. Mother has maintained primary
physical custody of Children. A divorce action is pending in the Butler
County Court of Common Pleas.
* Retired Senior Judge assigned to the Superior Court.
J -A09041-20
On December 1, 2017, Mother filed for child and spousal support.
Over more than a year and a half, a series of hearings and modifications to
Father's child support obligations occurred. Prior to the instant proceeding,
the most recent order setting forth Father's obligation was entered on
September 5, 2018. In that order, Father's monthly net income was
calculated to be $10,580.54 and Mother's monthly net income to be
$5,947.65. The parties entered an agreed -upon support order, requiring
Father to pay monthly $3,562,00 in child support and $350.00 in arrears, for
a total of $3,912.00. Order, 9/5/2018, at 1-2. On March 26, 2019, Father
filed the instant petition, seeking a reduction in support for various reasons
no longer relevant.
A support modification conference was scheduled, but prior to the
conference, on April 12, 2019, Father was involuntarily terminated from his
employment. Accordingly, the parties agreed to continue the support
modification conference for 45 days and rescheduled it for June 17, 2019.
Father represented himself at the conference. After the conference, on July
1, 2019, the conference officer made findings as to the parties' income and
made recommendations regarding support. Father then filed a demand for a
de novo hearing before the trial court.
On August 21, 2019, the trial court held a de novo hearing. Mother
did not testify at the hearing, but the parties stipulated that her monthly net
income was $6,027.46. N.T., 8/21/2019, at 3-4. Father provided the
-2
3-A09041-20
following testimony related to his income. In 2018, Father earned over
$180,000.00 while employed with Passavant Development Corporation. Id.
at 30. From January 1, 2019 until April 11, 2019, Father earned $51,603.76
in salary. Id. at 21. On April 12, 2019, Father was involuntarily terminated
for a reason that does not appear in the record and received a payout of
$14,513.00 for unused time off, and a severance package that included
payment of $167,712.48 ($13,976.04 per month) over the next 12 months.
Id. at 21, 24.
In July 2019, Father moved from the parties' former marital home in
Cranberry Township, Pennsylvania to be with his paramour in Lexington,
Kentucky, and sought comparable employment and earnings to his previous
position. Id. at 14-15. In the four months between when Father was
terminated and the August 21, 2019 de novo hearing, Father had applied to
only two positions with potential employers via sending a resume and cover
letter; one application was submitted just a week prior to the hearing. Id.
at 15. Father was planning to follow-up after the hearing via a telephone
call with one of the potential employers. Id.
On August 30, 2019, the trial court entered the order at issue here,
which increased Father's child and spousal support obligations. The trial
court determined Father's monthly net income and calculated his support
obligations for different dates. Specifically, from March 26, 2019 until April
12, 2019, the trial court used Father's actual earnings and accrued benefits
3
3-A09041-20
from his employment to determine his monthly net income to be
$12,754.39; and from April 13, 2019 onward, the trial court determined
Father's income to be what he received from his severance payment, plus it
imputed a $15 -per -hour earning capacity until Father found employment, for
a total of $11,542.41. Order, 8/30/2019, at 1.
Father timely filed a notice of appeal on September 26, 2019. Both
Father and the trial court complied with Pa.R.A.P. 1925.
On appeal, Father raises three, albeit overlapping, issues.
A. Whether the [t]rial [c]ourt erred as a matter of law and abused its
discretion by imputing [] an earning capacity [to Father] for child
and spousal support purposes that exceeds one [] full-time
position.
B. Whether the [t]rial [c]ourt erred as a matter of law and abused its
discretion by imputing [] an earning capacity [to Father] that
exceeds [Father's] earnings from his most recent employment.
C. Whether the [t]rial [c]ourt erred as a matter of law and abused its
discretion by entering an award for child support and spousal
support based upon [Father's] actual earnings in addition to the
trial court's imputation [] of an earning capacity of a full-time
position paying [$15.00] per hour.
Father's Brief at 8, The crux of Father's issues is his contention that the trial
court abused its discretion in calculating his earning capacity. He argues
that the trial court should have based his income solely on his severance
pay, rather than his severance pay and an imputed $15 -per -hour earning
capacity, thereby imputing "an earning capacity of a second -full time
position" to Father. Id. at 20.
-4
J -A09041-20
Before addressing Father's issue, we must first determine the
appealability of the August 30, 2019 order. Diament v. Diament, 771 A.2d
793, 795 (Pa. Super. 2001) ("Although the appealability of the trial court's
support order was not raised by the parties in their briefs, we nevertheless
will examine this question since the appealability of an order goes to the
jurisdiction of the court and thus properly may be raised by the court sua
sponte." Fried v. Fried, 501 A.2d 211, 212 (1985)). The order at issue is
an allocated support order, i.e., it made separate provisions for child support
and spousal support. During the pendency of a divorce action, "the portion
of a trial court order attributable to child support is final and immediately
appealable; however, the portion of an order allocated to spousal support is
interlocutory." Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super. 2003)
(citations omitted). Issues related to child support may be appealed
immediately to protect the interest of the child and avoid hardship due to a
child's immediate and continuing dependence on his or her parents for
support and inability to draw on other sources of funds in the interim.
Diament, 771 A.2d at 795.
A spousal support order entered during the pendency of a divorce is
not appealable until all claims related to the divorce action are resolved.
Deasy v. Deasy, 730 A.2d 500, 502 (Pa. Super. 1999). This Court may
quash an appeal if statements in the parties' appellate briefs indicate a
divorce action is pending at the time of the appeal. Capuano, 823 A.2d at
-5
3-A09041-20
999. Here, Mother indicates in her brief that the parties "are in the process
of divorce having separated on November 1, 2017," and references Father's
testimony "in a separate order of court under the parties' divorce caption."
Mother's Brief at 11, 16. Second, Father stated in his brief that he and
Mother "have a divorce action pending in the Butler County Court of
Common Pleas." Father's Brief at 9.
In light of the foregoing, we quash the appeal from those portions of
the August 30, 2019 order pertaining to spousal support because those
portions are interlocutory and unappealable, and we therefore lack
jurisdiction to consider them. See Capuano, 823 A.2d at 998.
Conversely, the issues related to the child support portion of the
August 30, 2019 order are immediately appealable and properly before this
Court. See Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super.
1996).
We now turn to Father's argument that the trial court's determination
of his earning capacity was inconsistent with applicable law and not
supported by the evidence as it relates to the award of child support.
We begin with our well -settled standard of review in child support
cases.
Appellate review of support matters is governed by an abuse of
discretion standard. 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. An abuse of discretion
is [n]ot merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment
- 6 -
3-A09041-20
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill -will, as shown by the evidence of record[,
then the court has abused its discretion]. The principal goal in
child support matters is to serve the best interests of the
children through the provision of reasonable expenses.
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (citation omitted).
"[T]he amount of support to be awarded is based upon the parties'
monthly net income." Pa.R.C.P. 1910.16-2; see also Woskob v. Woskob,
843 A.2d 1247, 1251 (Pa. Super. 2004) ("[A] person's support obligation is
determined primarily by the parties' actual financial resources and their
earning capacity."). The calculation of income in this case is guided by the
following parameters.
(a) Monthly Gross Income. Monthly gross income is ordinarily
based upon at least a six-month average of all of a party's
income. The term "income" is defined by the support law, 23
Pa.C.S.[] § 4302, and includes income from any source.
***
[(d)](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 jobs available within a
particular occupation, working hours, working conditions and
whether a party has exerted substantial good faith efforts to find
employment.
7
J -A09041-20
Pa.R.C.P. 1910.16-2(a), (d)(4) (emphasis added). It is the highlighted
portion of the above quote upon which Father relies.
Father relies upon Haselrig v. Haselrig, 840 A.2d 338 (Pa. Super.
2003), and the cases cited therein. For a period of time, the payor in that
case worked two full-time 40 -hour jobs, for a total of 80 hours per week,
and his spouse argued that his earning capacity should be based on those
two full-time 40 -hour -per -week jobs. This Court responded that many
factors need to be considered with regard to how many hours should be
required in determining earning capacity, but clearly it would be a rare case
where a payor would be required to work two full-time jobs.
Haselrig is clearly distinguishable from this case. Father is not being
required to work 80 hours per week. Because of the unusual circumstances
here where Father was fired with a severance package, although he is being
paid for that full-time job, he is not performing work at that job. That is a
far cry from Haselrig. We find no abuse of discretion in the trial court's
imposing an earning capacity on Father. There is a reason that the rule uses
the word "generally" in describing when the payor's earning capacity should
not exceed the amount he could earn in one full time -position. Based on the
foregoing, we conclude that the trial court did not abuse its discretion in
calculating Father's earning capacity. Accordingly, we affirm the trial court's
order as it pertains to child support.
-8
J -A09041-20
Order affirmed as it pertains to child support. Appeal quashed as it
relates to spousal support.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/14/2020
-g