J-A18032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

ELIZABETH A. SKINNER IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellant 

v.

JAMES T. SKINNER 

 Appellee No. 2091 MDA 2013 

Appeal from the Order Entered October 30, 2013 

In the Court of Common Pleas of York County 

Domestic Relations at No(s): 01886 SA 2006 

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 26, 2014 

Elizabeth A. Skinner (“Mother”) appeals from the order entered in the 

Court of Common Pleas of York County assessing her earning capacity to be 

$147,410.00. Upon review, we affirm. 

 The facts and procedural history of this appeal are extensive and may 

be summarized as follows: Father is retired from the military and is 

currently employed as an ROTC instructor at York City High School. The 

parties do not dispute Father’s earning capacity of $8,939.95 per month. 

Mother is a physician with Well-Span Health, where she receives an annual 

salary of $65,000.00 to work part-time. 

Mother and Father were married on September 9, 2000. One child 

was born of the marriage, S.S. (“Child”). At the time of this appeal, child 
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was nine years old and in fourth grade. The parties separated in February of 

2006, and divorced on July 14, 2009. 

The court entered an initial support order on September 21, 2006, 

directing Father to pay Mother child support and alimony pendent lite 

(“APL”). The court entered a second support order on June 4, 2007, 

following a de novo support hearing at which the trial court determined 

Mother had an earning capacity of $85,000.00 per year. 

Following a de novo hearing on December 8, 2009, the court entered a 

modified support order on February 17, 2010, directing Father to pay child 

support and APL. On March 11, 2010, the court modified this order by 

decreasing Father’s child support payment to $1045.00 per month and his 

APL payment to $401.00 per month to reflect the parties’ agreed-upon 

50/50 custody arrangement. 

Both parties appealed the March 11, 2010 order. The Superior Court 

upheld the decision of the trial court in a memorandum opinion on January 

12, 2011, determining that the trial court did not abuse its discretion in 

holding Mother to a “part-time” earning capacity based on the circumstances 

of the parties. Skinner v. Skinner, No. 440 MDA 2010 and No. 501 MDA 

2010, unpublished memorandum (Pa. Super. filed January 12, 2011). At the 

time, Mother was the primary caretaker of the child and the child attended a 

half-day kindergarten program. 

On May 6, 2013, Father filed a petition to modify the support order. 

Father also filed a petition for an amendment of APL on May 8, 2013. A 
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support conference occurred on June 24, 2013, and on July 24, 2013, the 

court entered a child support order reflecting an increase in Mother’s earning 

capacity. The conference officer assessed a full-time earning capacity for 

Mother of approximately $135,000.00. Mother requested a de novo hearing 

on August 5, 2013. The case was scheduled as a special support hearing 

due to the complexity of the matter and was heard before the court on 

October 15, 2013. On October 30, 2013, the trial court issued an order 

holding Mother to a full-time earning capacity of $147,410.00 per year and 

terminating APL. This timely appeal followed. 

On appeal, Mother raises four issues: 

1. Whether the trial court abused its discretion by overriding 

and/or misapplying the law allowing Father to request

modification of support with a substantial change in 

circumstances on the same issues as previously decided by 

the trial court on February 17, 2010, and upheld by the 

Superior Court on January 12, 2011, in violation of collateral 

estoppel. 

2. Whether the trial court abused its discretion by overriding 

and/or misapplying the law by imputing an earning capacity 

on plaintiff that is greater than one full-time position and is 

unreasonable given Mother’s obligation as a parent.

3. Whether the trial court abused its discretion by overriding 

and/or misapplying the law by imputing an inflated earning 

capacity on Mother without adequate support on the record. 

4. Whether the trial court abused its discretion by overriding 

and/or misapplying the law in the calculation of Mother’s fulltime earning capacity by using a straight hourly rate when 

plaintiff is not paid hourly, and cannot get paid the amount 

set by the trial court simply by working 40 hours per week. 

Appellant’s Brief, at 4.
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Our standard and scope of review for an order of child support is well 

settled: 

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. We will not interfere with the 

broad discretion afforded the trial court absent an abuse of the 

discretion or insufficient evidence to sustain the support order. 

An abuse of discretion is not merely an error of judgment; if, in 

reaching a conclusion, the court overrides or misapplies the law, 

or the judgment exercised is shown by the record to be either 

manifestly unreasonable or the product of partiality, prejudice, 

bias or ill will, discretion has been abused. In addition, we note 

that the duty to support one’s child is absolute, and the purpose 

of child support is to promote the child’s best interests.

Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted). 

Mother first argues that the trial court violated the doctrine of 

collateral estoppel when it permitted Father to request a modification of the 

support order because the issue had been previously litigated. It is well 

established that the doctrine of collateral estoppel will bar review of an issue 

only when the following four criteria are met: 

[1] The issue decided in a prior action must be identical to one 

presented in a later action; [2] the prior action must have 

resulted in a final judgment on the merits; [3] the party against 

whom collateral estoppel is asserted must have been a party to 

the prior action, or in privity with a party to the prior action; and 

[4] the party against whom collateral estoppel is asserted must 

have had a full and fair opportunity to litigate the issue in the 

prior action. 

Ewing v. Ewing, 843 A.2d 1282, 1286 (Pa. Super. 2004). Furthermore, we 

observe that in Pennsylvania, child support orders are always modifiable if a 
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party can show a change of circumstances. See Nicholson v. Combs, 703 

A.2d 407 (Pa. Super. 1997). 

There is no dispute that three of the four elements in the above test 

for collateral estoppel are met in this matter. The earlier action resulted in a 

final judgment on the merits; Father was a party to the prior action; and 

Father had a full and fair opportunity to litigate the issues in the prior action. 

Whether collateral estoppel applies to bar review in this case ultimately turns 

on whether the issues presented in the two actions are identical. 

In the earlier action, this Court affirmed the trial court’s determination 

that Mother should be held to an earning capacity of $85,000.00 per year 

because, at that particular time, Mother was the primary custodial parent of 

a kindergarten-aged child. In the present matter, Mother and Father equally 

share physical custody of their child, who is now five years older and in the 

fourth grade. The issues in the two cases, while similar, are not identical. 

Because Father has demonstrated a change of circumstances that alters the 

issues at bar, the doctrine of collateral estoppel does not apply here. See 

id.

Mother’s three remaining issues on appeal challenge the trial court’s 

determination of her earning capacity. “Child and spousal support ‘shall be 

awarded pursuant to statewide guidelines.’ In determining the ability of an 

obligor to provide support, the guidelines ‘place primary emphasis on the net 

incomes and earning capacities of the parties[.]’” Mackay v. Mackay, 984 

A.2d 529, 537 (Pa. Super. 2009) (citing 23 Pa.C.S. § 4322(a)). 
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Pennsylvania Rule of Civil Procedure 1910.16(d)(4), addressing earning 

capacities, provides as follows: 

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 

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. 

Pa.R.C.P. 1910.16-2(d)(4) (emphasis added). This Court defines earning 

capacity as “that amount which the person could realistically earn under the 

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

condition and training.” Mackay, 984 A.2d at 537 (citing Gephert v. 

Gephert, 764 A.2d 613, 615 (Pa. Super. 2000)). We further note that, 

The trial court, as the finder of fact, is entitled to weigh the 

evidence and assess the credibility of witnesses. A support order 

will not be disturbed on appeal unless the trial court failed to 

consider properly the requirements of the Rules of Civil 

Procedure Governing Actions for Support, Pa.R.C.P. 1910.1 et 

seq., or abused its discretion in applying these Rules. 

Krankowski v. O'Neil, 928 A.2d 284, 286-87 (Pa. Super. 2007) (citation 

omitted). 
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 At the support hearing on October 15, 2013, Mother presented a 

vocational expert who testified about her earning capacity. The expert 

opined that Mother’s earning capacity was approximately $67,000.00 per 

year based on her current employment contract. N.T. Hearing, 10/15/13, at 

16. The expert further testified that Mother could realistically earn 

$140,460.00 based on her education and regional opportunities. Id. at 31. 

The expert agreed that Mother “should be considered experienced.” Id. at 

32.

Mother requested that the trial court use an hourly wage to determine 

her earning capacity. The trial court found this to be an appropriate 

procedure to calculate earning capacity, but concluded that the expert’s 

opinion as to Mother’s earning capacity lacked some credibility given 

Mother’s circumstances and experience.1

 Accordingly, the trial court 

calculated Mother’s earning capacity using an hourly wage derived from 

Mother’s own reported earnings.2

 Moreover, the trial court determined a 

____________________________________________ 

1

 Mother is a board-certified physician who has continuing education credits 

and years of experience. According to the chart attached to the expert 

report, the expert suggested the trial court hold Mother to an hourly wage 

slightly above that of a Physician Assistant. Trial Court Opinion, 12/30/13, 

at 3. 

2 To calculate Mother’s earning capacity at an hourly rate, the trial court 

added Mother’s income for the last two years with her projected income for 

2013. The total, $221,115.00 was divided by three to calculate her average 

annual income of $73,705.00. The court divided this amount by 52 weeks, 

and the weekly wage was then divided by 20, the number of hours Mother 

works per week. Mother’s hourly wage was therefore calculated at $70.87 

(Footnote Continued Next Page) 
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part-time earning capacity was no longer appropriate given the change in 

circumstances: 

Child is now in fourth (4th) grade, and the parties equally share 

custody. There was no credible evidence that Mother’s ability to 

support Child on a part-time basis was related to Mother’s focus 

on the quality of care for Child or need to provide care for Child 

. . . Mother is no longer the primary physical caretaker as she 

was at the time of the last hearing on December 8, 2009. 

Contrary to Mother’s assertions, the circumstances have 

changed, and this court must consider the significant changes. 

Trial Court Opinion, 10/28/12, at 6. 

The trial court, as finder of fact, weighed the evidence and assessed 

the credibility of the witnesses. In doing so, the court considered Mother’s 

age, education, training, work experience, earnings history and child care 

responsibilities as required by Pa.R.C.P. 1910.16-2(d)(4), and rejected the 

evidence Mother put forth on the issue. In calculating Mother’s earning 

capacity, the trial court held Mother to an amount that she could realistically 

earn under the present circumstances.3

 Mackay, supra. Because this 

Court is not free to usurp the trial court’s duty as the finder of fact, we will 

(Footnote Continued) _______________________ 

over the past three years. The trial court deemed this number appropriate 

to calculate what Mother could realistically earn if she worked a full-time 

position at forty hours per week. Mother’s hourly wage of $70.87 multiplied 

by 40 hours resulted in a weekly wage of $2,834.80 and a yearly total of 

approximately $147,410.00. Trial Court Opinion, 12/30/13, at 3. 

3

 Of note, mother presented no evidence that she could not obtain full time 

employment. Her choice to work part time does not constrain the trial court 

or this Court to accept that choice as evidence of her earning capacity. 
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not second-guess the trial court’s determination of Mother’s earning 

capacity. Id. at 533.

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/26/2014