Karner, S. v. Karner, E.

J-S20031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUWANNEE KARNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC S. KARNER :
:
Appellant : No. 3305 EDA 2019
Appeal from the Order Entered October 18, 2019
In the Court of Common Pleas of Bucks County Domestic Relations at
No(s): No. 2015 DR 01804
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: Filed: July 30, 2020
Eric S. Karner (“Father”) appeals from the order denying his motion to
modify child support. We conclude the trial court did not err in finding Father
failed to establish a change in circumstances, and affirm.
Suwannee Karner (“Mother”) and Father have two minor children, and
once divorce proceedings began, Mother filed a Complaint for Support. The
court issued various orders, setting the support amount and addressing
petitions for modification and petitions for contempt. In September 2017, the
court ordered Father to pay $1,400 per month in child support. This order was
“based on [Father’s] net monthly income of $2,284.00 and [Mother’s] net
monthly income of $1,734.52.” Order, filed Sept. 22, 2019. The court provided
that it “deviate[d] from the guidelines as [Father] had no living expenses or
vehicle expenses.” Id. Additional petitions for modification were filed, which
the court denied.
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In January 2019, Father filed a petition for modification of the support
order. Mother filed a petition for contempt. The court conducted a hearing
and, on March 1, 2019, it modified the support award to require Husband to
pay $1,210.00 per month in child support. The court determined that Father
had a net monthly income of $2,447.89 and Mother had a net monthly income
of $1,629.28. N.T., 3/1/19, 4-5. The court found that “Father did intentionally
do things to reduce his income” and “that he is receiving significant support
from his parents.” Id. at 7. The court dismissed the contempt petition. Mother
filed a notice of appeal, and this Court dismissed the appeal in July 2019
because Mother had not filed a brief.
On March 12, 2019, 11 days after the court ruled on Father’s petition
for modification and entered the order setting the support amount, Father filed
another petition for modification. The court denied it in August 2019. The court
found that “[Father’s] testimony regarding his alleged decrease in income
lacks credibility” and that “his latest alleged change of his employment status
is the result of his continued efforts to intentionally reduce his income or to
avoid his obligation to support his children due to his desire to harm the
Mother of the children.” Order, filed Aug. 7, 2019. It concluded that “Father
continued to have the ability to earn a gross income of at least $17.50 per
hour working 40 hours per week or $36,400.00 per year.” Id. Father filed a
notice of appeal, and this Court dismissed it because Father failed to file a
docketing statement.
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In August 2019, Mother filed a petition for modification. Mother
attempted to withdraw the petition, but Father did not agree to the
withdrawal.
The court held a hearing where Father testified about his income from
September and October, as well as prior months, and asked the court to base
the support on actual income, rather than earned capacity and reduce the
amount of child support. Father testified that at the end of March he began
training fighters in Muay Thai, a form of martial arts, and he continued to train
fighters at the time of the hearing. N.T., 10/18/19, at 12-13. From August
through October, he said he earned a gross income of between $2,000 and
$2,500 per month. Id. at 15-16. He testified that he spends $200 per month
on gas for his employment. Id. at 28-29. Mother testified that she works an
average of 25 hours per week and, as of September 10, 2019, she had earned
$19,823.50 in 2019. Id. She pays $76 per week for childcare. Id. at 55. The
court denied the petition for modification, and Father filed this timely appeal.
Father raises the following issues:
1. Did the trial court abuse its discretion and err as a matter
of law in determining there has been no change in
circumstances?
2. Did the trial court abuse its discretion and err as a matter
of law in failing to recalculate appellees actual income
considering the substantial evidence admitted at trial?
3. Did the trial court err as a matter of law by miscalculating
the entire support order by not using both parties actual
combined income?
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4. Did the trial court abuse its discretion and err as a matter
of law in failing to appropriately adjust the current support
order based on the pay stubs that [Mother] provided to
Domestic Relations?
5. Did the trial court abuse its discretion and err as a matter
of law in failing to calculate [Father’s] support obligation and
make the proper adjustments, according to the 50/50
shared custody schedule. See Rule 1910.16-1 (E) Shared
Custody and Rule Pa.R.C.P. No. 1910.16-4(c).
6. Did the trial court abuse its discretion and err as a matter
of law in failing to not instruct Domestic Relations to re-
calculate [Mother’s] current net income, based on the most
recent pay stubs that [Mother] provided on October 18,
2019?
7. Did the trial court abuse its discretion and err as a matter
of law by failing to assign appellee to a similar full time
earning capacity?
8. Did the trial court abuse its discretion and err as a matter
of law by determining there is no change in [Mother’s]
childcare costs?
9. Did the trial court abuse its discretion and err as a matter
of law in failing to recalculate support based on both parties
combined monthly income?
Father’s Br. at 3-5 (trial court answers omitted).
Some of the issues Father asserts are not properly before us. Father
appealed from an order denying a petition for modification of a child support
order, and therefore the sole question is whether the court abused its
discretion in denying modification, that is, whether the court properly found
no changed circumstances. To the extent Father attempts to raise issues
unrelated to the finding of no changed circumstances, the issues are not
properly before us.
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We review an order denying a petition for modification of a child support
order for an abuse of discretion, “namely, an unreasonable exercise of
judgment or a misapplication of the law.” Plunkard v. McConnell, 962 A.2d
1227, 1229 (Pa.Super. 2008).
“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.” Id.; see
also 23 Pa.C.S.A. § 4352(a). The party requesting the modification has the
“burden of demonstrating a ‘material and substantial change.’” Id.
Father alleges that Mother’s testimony supports a finding that she had
decreased child care expenses and that this alleged decrease, coupled with
Mother’s pay stubs, establish a change in circumstances. He argues that he
“is responsible for providing food, shelter and clothing for their two young
children during his fifty[-]fifty custodial times” and “[t]he current order forces
[Father] well below the federal poverty level.” Father’s Br. at 12.
Here, the trial court concluded Father had not established a change in
circumstances since the entry of the August 2019 order. It reasoned:
At the modification hearing, Father submitted his Profit/Loss
Statement and various exhibits relating to Mother’s income.
Mother submitted various documentation related to
childcare expenses. The aforesaid exhibits did not confirm
that Father’s net monthly income had been reduced. If
anything, they confirm that Father has been slowly but
successfully increasing his net monthly income.
Upon reviewing the evidence submitted we found that
Father did not meet his burden of showing a material and
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substantial change to his circumstances since the Order on
August 7, 2019.
The history of this case established that prior to the breakup
of the parties’ marriage, Father had successful martial arts
gyms and also took trips to Thailand with martial arts
students. It also showed that the parties enjoyed an upper
middle class living. Upon the breakup of the marriage,
Father’s businesses suddenly failed and their house went
into foreclosure. Father then moved into his parents’ home,
used a vehicle provided by them and worked in their
landscaping business. We deviated from the guidelines in
the original support determination due to the fact that
Father had no living expenses since his parents were
providing all of them for him. At that time we believed that
the alleged failure of his businesses was caused by him in
an effort to avoid support and possible equitable distribution
payments to Mother.
In response Father moved out of his parents’ home and into
a home he was “renting.” The evidence established that the
rented home was owned by his parents. Father later alleged
he was laid off by his parents over the winter. Later, when
his unemployment benefits were expiring and the
landscaping season was resuming, his position was that his
parents closed their landscaping business and he therefore
had no job to return to. He then elected to resume his
involvement in the martial arts business by becoming a
trainer.
All along, Mother maintained that Father had simply
transferred his business to friends and was purposely
reducing his income. While Mother was not able to produce
concrete evidence to support her belief, we found that the
circumstantial evidence showed that her belief was true.
However, throughout the proceedings in this case, we felt
that entering a support order based on Father’s former
earnings, while possibly justified, would not serve any useful
purpose. Therefore, throughout the history of the case, we
entered orders based on what we determined Father could
actually pay based on his earnings or earning capacity at
the time we entered each Order.
Given the long history of this case, we saw all of Father’s
efforts as an attempt to intentionally reduce his income or
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avoid his support obligation due to his desire to harm
Mother. The Domestic Relations Officer who held the
conference in this case, also concluded that there was no
change in circumstances and that [Father’s] latest petition
should be denied and dismissed. We agreed and did so. This
was the third petition for modification of support filed in
2019 alone. In entering our previous Order modifying
support, Father was assigned an earning capacity of
$34,400 per year that continues to align with his skills and
employment status.
Trial Court Opinion, filed Jan. 7, 2020, at 7-9.
The trial court did not abuse its discretion in concluding Father did not
establish a change in circumstances since the August 2019 Order. Father
testified regarding his income and admitted into evidence an earning/loss
report, and presented evidence regarding Mother’s earnings and child care
expenses. Such evidence, however, did not establish a material and
substantial change in circumstances. The court properly refused to modify the
child support order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/20
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