J-S37004-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.H.

v.

A. E. H., 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3364 EDA 2017

Appeal from the Order Entered October 6, 2017

In the Court of Common Pleas of Philadelphia County Domestic Relations 

at No(s): 14-12664, 

PACSES # 219115003

BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

CONCURRING MEMORANDUM BY McLAUGHLIN, J.:FILED SEPTEMBER 11, 

2018

I agree with the majority that remand is necessary for additional 

proceedings and findings of fact as to the income and earning capacity of 

A.E.H. (“Father”). However, I respectfully disagree with the majority that an 

earning capacity of $50,000.00 could not be imputed to Father, if supported 

by the evidence. 

The Master and the trial court found that Father had not been diligent 

in his efforts to obtain employment, and the record supports this finding. 

Father testified that he sought no employment to supplement his claimed

$7,468.00 yearly income from rental property, even though he is a healthy 

33-year-old, who graduated from high school, completed three years of 

college, attended a real estate class, and had no child care responsibilities. 
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Trial Court Opinion, filed 12/19/17, at 2, 7. Therefore, it was proper to impute 

an earning capacity to Father greater than his reported income. Woskob v. 

Woskob, 843 A.2d 1247, 1251 (Pa.Super. 2004) (“Although a person’s actual

earnings usually reflect his earning capacity, where there is a divergence, the 

obligation is determined more by earning capacity than actual earnings.”); 

Moore v. Moore, 181 A.2d 714, 715 (Pa.Super. 1962) (individual “presumed 

to have earning capacity in legal pursuits”); Pa.R.C.P. 1910.16-2(d)(4) (“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.”).

In addition, during the prior appeal, the Master and trial court credited 

the testimony of K.H. (“Mother”) that Father’s spending habits had not ceased

in 2012, as he claimed. Trial Court Opinion, 7/19/16, at 7-8 (noting “[t]here 

was no reported testimony from [Father] denying that he paid the expenses 

cited by [Mother] in 2014 before the parties separated, which was after he 

reportedly ceased his illegal activities”); Report of Master in Support, filed 

12/28/15 & 5/18/17, at 9 (finding Father’s testimony that he stopped 

generating income from illegal activities in 2012 not credible, noting he paid 

household expenses for Mother after 2012). The trial court also did not find 

credible Father’s claims that he did not purchase any of the items displayed

on social media and that he incurred no expenses during a trip to California.

TCO, filed 12/19/17, at 7-8. Therefore, it would be reasonable for the trial 

court to conclude that Father’s actual income is greater than the $7,468.00
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he claimed. See Moore, 181 A.2d at 715 (“[c]laimant can establish through 

defendant’s expenditures, without proving the source of the money, that he 

has a substantial income upon which an order may be based”); see also 

McAuliffe v. McAuliffe, 613 A.2d 20, 22 (Pa.Super. 1992) (where trial court 

finds that claims of reduced income are not credible, this determination will 

generally be upheld on review).

Such a finding would not promote illegal activity. Rather, it would ensure 

that the child benefits from all income Father receives regardless of source, 

as the Domestic Relations Code instructs.1 See Moore, 181 A.2d at 715 

(holding that defendant not relieved of support obligation because income 

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1 For support matters, “income” is defined as:

“Income.” Includes compensation for services, including, 

but not limited to, wages, salaries, bonuses, fees, 

compensation in kind, commissions and similar items; 

income derived from business; gains derived from dealings 

in property; interest; rents; royalties; dividends; annuities; 

income from life insurance and endowment contracts; all 

forms of retirement; pensions; income from discharge of 

indebtedness; distributive share of partnership gross 

income; income in respect of a decedent; income from an 

interest in an estate or trust; military retirement benefits; 

railroad employment retirement benefits; social security 

benefits; temporary and permanent disability benefits; 

workers' compensation; unemployment compensation; 

other entitlements to money or lump sum awards, without 

regard to source, including lottery winnings; income tax 

refunds; insurance compensation or settlements; awards or 

verdicts; and any form of payment due to and 

collectible by an individual regardless of source.

23 Pa.C.S.A. § 4302 (emphasis added).
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obtained from illegal pursuits and stating that party seeking support need not 

“always prove the source of the defendant’s income”); see also Gallagher 

v. Gallagher, 703 A.2d 850, 857 (Md.App. 1997) (finding order including 

earnings from illegal activity in total income amount did not require appellant 

to continue illegal activity, noting that if appellant established he no longer 

engaged in activity, it could be basis for modification).

However, because it is unclear how the Master and trial court arrived at 

the $50,000.00 earning capacity figure, I agree with the majority that remand

is necessary. 

Therefore, I concur.