J-A07038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

* Retired Senior Judge assigned to the Superior Court.

P.J.,

Appellee

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:

:

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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v. :

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E.J.,

Appellant

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: No. 1455 WDA 2016

Appeal from the Order Entered August 31, 2016

in the Court of Common Pleas of Erie County, 

Domestic Relations at No(s): 201600486/ PACES No. 292115871

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 16, 2017

E.J. (Father) appeals from the trial court’s August 31, 2016 order 

establishing child support for his minor child J.J. Upon review, we affirm in 

part, vacate in part, and remand for proceedings consistent with this 

memorandum. 

The trial court summarized the pertinent background as follows: 

On April 12, 2016, [P.J. (Mother)] filed a complaint for 

support requesting child support and spousal support. Following 

a support conference, a May 11, 2016 interim order of court 

[was] issued setting Mother’s monthly net income at $2,103.42, 

Father’s monthly net income at $2,702.04 and establishing a 

monthly child support obligation of $670.11, plus arrears. As 

provided in the May 11, 2016 summary of trier of fact, “[Father] 

was held at an earning capability as a self-employed roofer at 

$44,810.00/year based on the U.S. Bureau of Labor [] Statistics 

May 2014 Wage Estimates for Erie.” The summary further 

provides: “[Mother] was held at [an earning] capability of 
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$30,893.79/year based on the 2015 income.” Father filed a 

demand for [a] court hearing. 

T[he trial court], following an August 31, 2016 de novo

hearing, issued its August 31, 2016 order making the May 11, 

2016 interim order final. 

Trial Court Opinion, 11/18/2016, at 1-2 (unnecessary capitalization 

omitted).

Father timely filed a notice of appeal from the August 31st order, and 

both Father and the trial court complied with Pa.R.A.P. 1925. He raises the 

following issues on appeal, which we have reordered for ease of disposition.

I. Whether the [trial court] committed an error of law and/or 

abused its discretion in assessing [Mother] with an earning 

capacity based upon her 2015 income, where she worked 

less than the full year in 2015, she was terminated for 

cause in 2016, she testified as to the hourly rates she 

earned as a licensed nurse, and there was no competent 

evidence that [Mother] is unable to be employed in a full–

time capacity.

II. Whether the [trial court] committed an error of law and/or 

abused its discretion in assessing an earning capacity to 

[Father], as there was insufficient evidence to support the 

assessment of an earning capacity under the factors of 

Pa.R.C.P. 1910.16-2(d)(4) as well as to support the 

earning capacity assessed where [Father] has operated a 

roofing business for over fifteen years and provided 

evidence of his income for the previous six years.

III. Whether the [trial court] committed an error of law and/or 

abused its discretion in failing to state the reasons for the 

assessment of an earning capacity to [Father] in writing or 

on the record in accordance with Pa.R.C.P. 1910.16-

2(d)(4).

Father’s Brief at 2 (suggested answers omitted).
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We set forth our well-settled standard of review and applicable 

principles of law with respect to a support order. 

The amount of a support order is largely within the discretion of 

the trial court, whose judgment should not be disturbed on 

appeal absent a clear abuse of discretion. An abuse of discretion 

is not merely an error of judgment, but rather a misapplication 

of the law or an unreasonable exercise of judgment. A finding 

that the trial court abused its discretion must rest upon a 

showing by clear and convincing evidence, and the trial court will 

be upheld on any valid ground. For our purposes, an abuse of 

discretion requires proof of more than a mere error of judgment, 

but rather evidence that the law was misapplied or overridden, 

or that the judgment was manifestly unreasonable or based on 

bias, ill will, prejudice or partiality.

Portugal v. Portugal, 798 A.2d 246, 249-50 (Pa. Super. 2002) (internal 

quotation marks and citations omitted).

[A] person’s support obligation is determined primarily by the 

parties’ actual financial resources and their earning capacit[ies]. 

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. 

Earning capacity is defined as the amount that a person 

realistically could earn under the circumstances, considering his 

age, health, mental and physical condition, training, and 

earnings history.

Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004) (internal 

citations omitted).

We first address Father’s claim that the trial court erred in assessing 

Mother’s earning capacity. Specifically, Father avers that

[t]he [trial court] appears to assess Mother with less than fulltime earnings based on prior medical leaves and resulting lower 

earnings over the past three years. ... Mother’s education, 

training, and work experience, that of a licensed, registered 

nurse for almost 20 years, along with the lack of evidence of any 
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current medical issue restricting Mother’s ability to work full 

time, support an income assessment of a full-time licensed, 

registered nurse.

Father’s Brief at 24. The trial court offered the following explanation to 

support its findings that Mother’s earning capacity was assessed accurately 

using Mother’s 2015 income. 

At the time of the parties’ April 1, 2016 separation, 

Mother, who had worked as a licensed registered nurse for 

seventeen years, was unemployed. Mother was, on February 

26, 2016, terminated from her position with UPMC Lake Erie 

Endocrinology. At that point, Mother and Father agreed that 

Mother would stay home and that she would not apply for 

unemployment compensation. 

Prior to her termination, Mother had a series of medical 

issues which impeded her ability to work and resulted in multiple 

medical leaves. In 2013, Mother sustained a work-related back 

injury and broken ankle, which resulted in a leave from work. 

When Mother returned to work, she was only able to work in a 

light duty capacity. After approximately one year of light duty 

work, a functional capacity evaluation revealed that Mother could 

no longer perform her job. As a result, Mother was transferred 

to a different, lower paying position. In 2015, Mother was off of 

work again due to a broken knee and torn ACL. Thereafter, a 

November of 2015 incident of domestic violence with Father 

resulted in injuries which necessitated an additional medical 

leave. The impact of Mother’s continuing medical problems is 

reflected in her fluctuating income over the years. 

With regard to reduced or fluctuating income, the Support 

Guidelines provide: 

(1) Voluntary Reduction of Income. When either 

party voluntarily assumes a lower paying job, quits a 

job, leaves employment, changes occupations or 

changes employment status to pursue an education, 

or is fired for cause, there generally will be no effect 

on the support obligation.
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(2) Involuntary Reduction of and Fluctuations in, 

Income. No adjustments in support payments will 

be made for normal fluctuations in earnings. 

However, appropriate adjustments will be made for 

substantial continuing involuntary decreases in 

income, including but not limited to the result of 

illness, lay-off, termination, job elimination or some 

other employment situation over which the party has 

no control unless the trier of fact finds that such a 

reduction in income was willfully undertaken in an 

attempt to avoid or reduce the support obligation.

(4) Earning Capacity. Ordinarily, either party to a 

support action who willfully fails to obtain 

appropriate employment will be considered to have 

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.

Pa.R.C.P. 1910.16-2(d).

Mother was terminated from her employment a short time 

after her return from medical leave, but just over a month prior 

to the parties’ separation. While Mother disagrees that her 

termination was justified, there is documentation supporting that 

she was fired for cause. Meanwhile, parents have an obligation 

to support their unemancipated children. [See] 23 Pa.C.S.[] 

§4321. “Child support is a shared responsibility; both parents 

must contribute to the support of their child in accordance with 

their relative incomes and ability to pay.” [Depp v. Holland], 

636 A.2d 204, 206 (Pa. Super. 1994). The law is clear that, 

generally, there will be no effect on a parent’s support obligation 

when that parent is fired for cause. [See] Pa.R.C.P. 1910.16-

2(d)(1). In that regard, Mother’s termination does not negate 

her support obligation to her child. 

Nevertheless, Pennsylvania Courts have long held that “[a] 

person’s earning capacity is defined not as an amount which the 

person could theoretically earn, but as that amount which the 

person could realistically earn under the circumstances, 

considering his or her age, health, mental and physical condition 

and training.” [Haselrag v. Haselrag, 840 A.2d 338, 340 (Pa. 
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Super. 2003) (quoting Strawn v Strawn, 664 A.2d 129, 132 

(Pa. Super. 1995))]. In determining Mother’s earning capacity, 

the [trial court] is unable to ignore an involuntary aspect of flux 

and decrease in her earnings. Specifically, since 2013, Mother’s 

medical issues have resulted in leave from work and fluctuations 

in her income. During that time, Mother also underwent a 

functional capacity evaluation which revealed that she could no 

longer perform her job and, accordingly, she was transferred to 

a different and lower paying position. In sum, Mother’s medical 

issues have precluded her from working a full year during any of 

the last three years. In that regard, Mother’s 2015 income, 

which is reduced due to medical leave, is realistic. In reality, the 

parties have not realized a full-time income from Mother in years 

and, had the family remained intact, no income would have been 

attributed to Mother due to the parties’ agreement that she 

remain at home.

Trial Court Opinion, 11/18/2016, at 5-7 (some citations omitted). 

After a thorough review of the record in this matter, we discern no 

error in the trial court’s reasoning. As cited supra, Pa.R.C.P. 1910.16-

2(d)(2) provides that “appropriate adjustments will be made for substantial 

continuing involuntary decreases in income, including but not limited to the 

result of illness[.]” In this case, the trial court considered testimony from 

both Father and Mother and determined, for the reasons it cited, that 

Mother’s earning capacity had continually decreased due to medical issues 

which barred Mother from performing her job. Because the record supports 

the trial court’s conclusions, we decline to disturb its finding.

Next, Father avers the trial court erred by relying on wage estimates 

published by the United States Bureau of Labor Statistics. By way of further 

background, after Mother filed a complaint in support, a conference was held 

and soon thereafter, an interim order was entered. Said order 
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recommended that Father pay monthly support in the amount of $670.11, 

plus arrears. See Conference Summary and Order, 5/11/2016. This 

obligation was calculated by computing Mother’s earning capacity based on 

her 2015 income, and Father’s earning capacity based on “the U.S. Bureau 

of Labor Statistics May 2014 Wage Estimate for Erie.” Id. at 2.

Father avers that 

[n]o copy of the U.S. Bureau of Labor Statistics May 2014 Wage 

Estimates for Erie was presented as evidence at the support 

conference. [] No evidence that Father had the opportunities to 

gross business income of $44,810.00 per year was offered at the 

conference. No explanation as to why Father was held at an 

earning capacity was offered in the conference Summary or May 

11, 2016 Interim Order. 

Father’s Brief at 5. On May 23, 2016, Father filed a demand for a hearing, 

and on August 31, 2016, a de novo hearing was held. At the August 31st

hearing, the Bureau of Labor Statistics document relied upon by the 

Conference Officer was not entered into evidence by either party. That 

same day, the trial court entered an order affirming the May 11, 2016 

interim order. 

Father contends that the Bureau of Labor Statistics document, which 

was not entered into evidence by either party, should not have been used to 

determine his earning capacity. Father’s Brief at 15-16. In making this 

argument, Father cites Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007). In 

Ney, the father sought a modification of his child support obligation due to a 

reduction in his income. In concluding that the father was not entitled to a 
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reduction, the trial court “sua sponte considered hearsay evidence not of 

record in assessing [the father’s] credibility and determining his earning 

capacity.” Id. at 866. Specifically, the trial court conducted an internet 

search of jobs in the area in determining the father’s earning capacity. This 

Court held that this type of internet search, which led to reliance upon facts 

outside the record, constituted reversible error.

In its 1925(b) opinion, the trial court stated the following:

Father, since 2000, has been the sole owner of his own 

construction business[.] By utilizing his Income Tax Returns, 

Father asserts that his income from his business is only around 

$15,000 to $16,000 per year. The [trial court] is not, however, 

constrained by Father’s self-reported earnings on tax 

documents. [See Labar v. Labar], 731 A2d 1252, 1255 (Pa. 

1999)(use of federally taxable income creates an “oft-time 

fictional financial picture” as the result of federal income tax 

laws); [See also Commonwealth ex rel. Banks v. Banks], 

478 A.2d 1387, 1390 (Pa. Super. 1984)(“[I]ncome tax returns 

are not infallible devices for measuring earning capacity, 

particularly where the income-earner is self-employed.”). When 

looking beyond the self-reported earnings, Father is not credible. 

Father is living well outside the means of his reported 

income, indicating that he has much greater cash flow than his 

Income Tax Returns reveal. For example, in 2016, Father took 

and paid for a trip to Romania. Father was out of the country for 

a month. Mother testified that she and Father used to go on 

vacation all of the time and that trips like Father’s to Romania 

averaged $10,000 to $15,000. Also this year, Father was able to 

make a $4,000 payment to Marquette in order to pay off the 

mortgage on the marital residence. Moreover, Father sent 

approximately $36,000 through PNC Bank during just two 

months in 2016. It is further noteworthy that, during the 

marriage, Father acquired at least six parcels of real estate. The 

[trial court] fails to see how Father’s actions are feasible 

considering the meager earnings that he reports.1 
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1 While Father’s demeanor was not the sole basis for 

the [trial court’s] credibility assessment, it is 

noteworthy that his demeanor changed and he was 

hesitant with his “no” response when questioned 

whether he performed work for people other than 

those for which he attached 1099s to his tax returns. 

In sum, the [trial court] believes that Father has much 

greater income than he reports. As a result, the [trial court] is 

faced with the arduous task of formulating a support award, 

without actual income information. Unable to get a clear picture 

of Father’s actual income, the [trial court] assessed Father with 

an earning capacity based upon the wage estimates for Erie of a 

self-employed roofer as published by the U.S. Bureau of Labor [] 

Statistics Such an assessment is consistent with the occupation 

Father has held for the past sixteen years and, considering the 

standard of living maintained by Father, is more realistic than his 

reported earnings.

Trial Court Opinion, 11/18/2016, at 3-5 (some citations omitted). 

While we are cognizant that the trial court is well within its discretion 

to determine that Father is disingenuous with reporting his yearly income, 

based upon our decision in Ney, the trial court erred in adopting the 

Conference Officer’s recommendations which were based upon facts outside 

the record. Furthermore, while the trial court is correct that it is not 

constrained to determine Father’s earnings based solely on his tax returns, 

the court’s determination must be made by utilizing record evidence 

introduced by the parties. See Ney, 917 A.2d at 863 (“A trial court may not 

consider evidence outside of the record in making its determination. Nor 

may this Court uphold a trial court’s order on the basis of off-the-record 

facts.”) (citations and quotations omitted). 
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Although the earnings set for Father ultimately may be shown to be 

appropriate, the trial court abused its discretion in accepting this finding 

based upon evidence that was not introduced by either party. Thus, we 

vacate the order of the trial court to the extent it relied upon facts outside 

the record when determining Father’s income, affirm the trial court’s order 

as it pertains to Mother’s income, and remand for a new hearing to address 

only, Father’s income and earning capacity.1 At that time both Mother and 

Father will have the opportunity to present evidence of Father’s earning 

capacity.

Order vacated in part, affirmed in part, and case remanded for 

proceedings consistent with this memorandum.2Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2017

 

1

In light of our disposition, we need not address Father’s remaining issue 

concerning the trial court’s failure “to state the reasons for the assessment 

of an earning capacity to [Father] in writing or on the record in accordance 

with Pa.R.C.P. 1910.16-2(d)(4).” Father’s Brief at 2. 

2

In the interim, Father shall be held to the earning capacity confirmed by 

the trial court in its August 31, 2016 order. To the extent that his earning 

capacity differs in a future order, the trial court shall credit payments going 

forward. 
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