J-A20014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RALPH A. FERRIS IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARYANN PETRI

Appellant No. 1443 WDA 2015

Appeal from the Order September 4, 2015

In the Court of Common Pleas of Erie County

Domestic Relations at No(s): NS20150596

BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 06, 2016

Maryanne Petri (“Mother”) appeals from the child support order 

entered on September 4, 2015, which established her monthly obligation for 

three children at $789. We affirm.

Mother and Ralph A. Ferris (“Father”) married on June 18, 1994, 

separated during 2002, and divorced on December 31, 2004. The parties’ 

three children were born during April 1998, March 2001, and July 2002 

respectively. Mother and Father initially shared equal physical custody of 

the children, and during 2013, Mother, a registered nurse, obtained a child 

support award in the amount of $300 per month. The award was calculated 

using an assessed monthly earning capacity of $3,521.57 to determine 

Mother’s income for the purposes of the support guidelines. While Mother 
J-A20014-14

- 2 -

disputed the court’s determination of her earning capacity at every stage of 

those support proceedings, she did not appeal the trial court’s final child 

support order.

The amicable custody arrangement between Mother and Father quickly 

deteriorated, and following an “indicated” report that Mother perpetrated 

emotional abuse against one of the children, Father obtained primary 

physical custody of the children during 2015.1 As Mother was limited to

partial physical custody on alternating weekends, her support was 

terminated, and on April 24, 2015, Father filed the complaint for child 

support that is the genesis of this appeal. 

Following a support conference, the trial court’s domestic relations 

section entered an interim order awarding Father $789 per month in child 

support and $90 toward arrears. While the parties agreed upon Father’s net 

monthly income, which was documented by his federal tax return for 2014, 

Mother’s earnings were again contested. Mother argued that she no longer 

had the earning capacity that was assessed in the former case because she 

lost her child abuse clearances under the Child Protective Services Law 

____________________________________________

1 The Child Protective Services Law recognizes three types of child abuse 

reports: 1) an “Indicated report” is an agency determination that is 

supported by substantial evidence of alleged abuse based upon its own 

investigation; 2) a “Founded report” has been verified by a judicial 

adjudication of guilt, guilty plea, or plea of no contest; and 3) an “Unfounded 

report” is any report that is determined to be neither indicated nor founded. 
J-A20014-14

- 3 -

(“CPSL”) as a consequence of the founded allegation of abuse and could not 

work in the positions that she previously held. Father countered that 

Mother’s earning capacity was established in the prior proceeding and that 

the identical figure should be used in the present case. The domestic 

relations section agreed and assessed Mother a net earning capacity of 

$3,521.57 in light of the prior assessment and Mother’s education and work 

experience. 

Mother demanded a de novo support trial, arguing that she had been 

unemployed for seven months due to the allegations of abuse and that she 

could only work one day per week as a result of related stress and mental 

health issues. Father’s income was not in dispute. At the outset of the 

September 4, 2015 hearing, Father’s attorney reminded the trial court of the 

prior support proceedings that the court presided over during 2013, in 

relation to Mother’s support complaint. Father posited that Mother should be 

held to the same earning capacity that the court assessed at the close of the 

2013 proceeding. The trial court stated that it understood the relevant 

issues and invited Mother to proffer testimony. 

Mother testified that, prior to January 2015, she earned approximately 

$27 per hour as an emergency room nurse at St. Vincent Hospital. She 

worked four twelve-hour shifts per two-week pay period, i.e. twenty-four 

hours per week. In January 2015, the hospital suspended her without pay 

as a result of the indicated finding of abuse. She returned to work during 
J-A20014-14

- 4 -

July 2015, when the indicated finding was expunged from her record and 

she was eligible to receive the required child abuse clearances.2 While she 

received a two-dollar per hour raise upon her return to work, she reduced 

her employment to one four-hour shift per week. Mother asserted that the 

reduction was due to her diagnoses of anxiety and depression. She 

attempted to verify her mental health conditions by introducing two 

physician verification forms that had been completed by her psychiatrist and 

her primary care physician; however, the trial court sustained Father’s 

objection to the documents as untimely under Pa.R.C.P. 1910.29(b)(2) 

(party must serve the physician verification form no later than twenty days 

after the support conference). After sustaining the objection, the court 

reiterated, “I also understand that these issues have been before the court 

significantly before.” N.T., 9/4/15, at 11-12.3 Following the hearing, the 

____________________________________________

2 Days after an administrative law judge expunged the agency’s “indicated” 

finding of emotional abuse, Erie County Child and Youth Service issued a 

fresh “indicated” finding of abuse against Mother in relation to one of the 

other children. Mother’s appeal from the latter determination was pending 

when the support hearing occurred. N.T., 9/4/15, at 3, 7-8, 12. Father 

avers in his brief that the second indicated report was also expunged. 

Father’s brief at 5 n.4.

3 We observe that, to the extent that the trial court indicated that it heard 

evidence regarding Mother’s mental health problems during the 2013 

proceedings, the record does not support that finding. The current 

allegations of anxiety and depression did not arise until 2015, supposedly 

concomitant with the loss of shared physical custody of the children and the 

leveling of indicated reports that she perpetrated emotional abuse. Stated 

(Footnote Continued Next Page)
J-A20014-14

- 5 -

trial court sustained the domestic relations section’s award to Father of $789 

per month child support (plus $90 toward arrears) and entered that award

as a final child support order. This appeal followed. 

Mother complied with the trial court’s order to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In its 

ensuing Rule 1925(a) opinion, the trial court misstated the procedural 

posture of this matter as an appeal from Mother’s petition for modification of 

an existing support order, and it cited legal authority relevant to the review 

of that type of petition. In addition, in reaching its ultimate determination,

the trial court found that the circumstance that led to Mother’s inability to 

obtain her CPSL clearances, i.e., the allegation of abuse, was tantamount to 

Mother’s voluntary reduction of income under Pa.R.C.P. 1910.16-2(d)(1) and 

concluded that Mother did not adduce evidence to establish that she 

attempted to find alternative employment in order to mitigate the lost 

income. This appeal followed. 

Mother presents three questions for our review:

1. Whether the trial court abused its discretion by 

ignoring significant factors beyond Mother’s control that had 

material, adverse impacts on her ability to work at her 

established place of employment . . . as well as to earn income 

in general; i.e., frivolous [abuse] cases that [delayed] . . . 

necessary clearances to work with patients[.] 

(Footnote Continued) _______________________

plainly, we do not rely on this aspect of the trial court’s recollection of the 

2013 proceedings.
J-A20014-14

- 6 -

2. Whether the trial court abused its discretion in 

disregarding valid Physician Verification Forms [confirming her] 

health issues. 

3. Whether the trial court abused its discretion in 

assigning Appellant [an earning capacity] based upon full-time 

work . . . when her employment history since 2002 [was not] 

full-time [sic]. 

Mother’s brief at 5.4

We previously stated “[t]he principal goal in child support matters is to 

serve the best interests of the children through the provision of reasonable 

expenses.” R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013). A parent’s 

duty to provide for his or her children financially is absolute “even if it 

causes hardship or requires sacrifice.” E.R.L. v. C.K.L., 126 A.3d 1004, 

1007-1008 (Pa.Super. 2015); Christianson v. Ely, 575 Pa. 647, 838 A.2d 

630, 638 (2003). Upon review of a child support order, we apply the abuse 

of discretion standard and we “may only reverse the trial court's 

determination where the order cannot be sustained on any valid ground.” 

R.K.J., supra. “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 

____________________________________________

4

Father’s argument focuses upon the testimony adduced during the 2013 

trial and items in Mother’s reproduce record. As neither the notes of 

testimony from the related, but distinct, child support case nor the pertinent 

contents of the reproduced record are included in the certified record, we 

may not consider them herein. Hence, Father’s brief is of little value to our 

review. 
J-A20014-14

- 7 -

judgment exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will, as shown by the evidence of record.” Id.

We address Mother’s three issues jointly. The crux of Mother’s 

collective contention is that the trial court erred in assessing an earning 

capacity, rather than utilizing her actual income, in calculating her child 

support obligation under the support guidelines. Preliminarily, Mother 

assails the trial court’s mischaracterization of this case as an appeal from a 

petition to modify an existing support order. She argues that the misstep is 

either “a breath taking level of incompetence” or “a deliberate effort to 

deceive [this Court about] the nature of the case.” Mother’s brief at 11. 

She highlights that the current support matter is listed under a different 

docket number than the support order entered in 2013 and notes that the 

parties have exchanged roles of obligor and obligee since 2013. The second 

component of Mother’s argument is that, in light of the trial court’s 

misstatement of the underlying proceedings as a petition for modification, 

the court’s assessment of earning capacity was improper because Father did 

not demonstrate that she hid income or that a discrepancy existed between 

income and training. The final aspect of the argument challenges the trial 

court’s finding that Mother’s employment issues relating to her inability to 

obtain CPSL clearances was tantamount to a voluntary reduction in income 

that would warrant utilizing an assessed earning capacity over actual 

earnings. No relief is due. 
J-A20014-14

- 8 -

We define 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.” Gephart v. Gephart, 764 A.2d 

613, 615 (Pa.Super. 2000)(citation omitted). Pursuant to Pa.R.C.P. 

1910.16-2(d)(4), which permits the trial court to impute an income equal to 

a party’s earning capacity, the trial court is directed to engage the following 

considerations: 

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. 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.

Pa.R.C.P. 1910.16-2(d)(4). 

Instantly, the trial court erred in treating Mother’s de novo appeal 

from the conference officer’s interim order as a petition for modification. 

However, the misstep was harmless insofar as Rule 1910.16-2(d)(4) permits 

the trial court to impute an earning capacity in this case that was equal to 

the amount the court attributed to Mother in 2013. Significantly, we 

observe that the trial court did not simply apply that amount mechanically as 
J-A20014-14

- 9 -

the law of the case. Rather it considered the factors enumerated in Rule 

1910.26-2(d)(4), and noted that several of the factors remained unchanged 

since the earlier proceeding. The fact that the present case is listed under a 

different docket number than Mother’s 2013 complaint or that Mother and 

Father have exchanged roles as support obligor and obligee since 2013 are 

irrelevant to the determination of Mother’s monthly income for purposes of 

calculating her obligation under the support guidelines. The key factors for 

the court’s consideration were Mother’s training, health, work experience, 

and earnings history. All of these factors were either unaffected by the 

passage of time or were addressed by the trial court during the de novo

hearing. Hence, we reject Mother’s assertion that the trial court’s 

mischaracterization of the case as a petition to modify an existing order is 

tantamount to reversible error. The trial court was familiar with the facts of 

this case and while Mother introduced evidence of her current employment 

status, as discussed infra, she did not establish that any of the factors had 

changed in any meaningful way.

The second aspect of Mother’s argument is that Father did not 

demonstrate that earning capacity was warranted. Specifically, she argues 

that Father could not establish that she failed to obtain appropriate 

employment or hid income, or that a discrepancy exists between her training 

and actual income. The certified record belies this assertion. 
J-A20014-14

- 10 -

While Mother is not hiding income, during the evidentiary hearing, she 

testified that despite her training, experience, and ability to earn between 

$27 and $29 per hour, she elected to work twenty-four hours per week prior 

to her suspension during January 2015 and only four hours per week 

following her reinstatement. Hence, Mother’s actual income is incongruous 

with her established earning capacity. Although Mother claimed that stress 

and mental health problems prevented her from working more than four 

hours per week, she did not introduce evidence to support her claim. Recall 

that the trial court sustained Father’s objection to the two physician 

verification forms that Mother attempted to introduce and found her 

unsubstantiated testimony incredulous. 

As the propriety of the trial court’s evidentiary ruling may be dipositive 

of Mother’s current argument, we address this question at the outset. 

Essentially, Mother assails the trial court for sustaining Father’s objections to 

the two completed physician verification forms that she attempted to 

introduce into evidence. Physician verification forms are specific documents 

whose form, use, and admissibility is governed by Pa.R.C.P. 1910.29. The 

documents are used in support cases to verify that a parent has a medical 

condition that affects his or her ability to earn income over a specific period 

of time. Pursuant 23 Pa.C.S. § 4342(f), the forms are not subject to 

hearsay exceptions. They are, however, subject to a notice requirement 

under Rule 1910.29(b)(2), which requires the documents to be served “on 
J-A20014-14

- 11 -

the other party not later than 20 days after the [support] conference” and 

the petitioner to allow 10 days for the other party to object to the document. 

If proper notice is provided and there is no objection, the form must be 

admitted into evidence without the physician’s testimony. Rule 

1910.29(b)(2). However, where notice was not provided and/or an 

objection is leveled, “the rules of evidence apply to determine the 

document’s ultimate admissibility.” See Rule 1910.29, Explanatory 

Comment—2000.

We recently reiterated, “The admission or exclusion of evidence is 

within the sound discretion of the trial court, and in reviewing a challenge to 

the admissibility of evidence, we will only reverse a ruling by the trial court 

upon a showing that it abused its discretion or committed an error of law.” 

K.T. v. L.S., 118 A.3d 1136 (Pa.Super. 2015). Herein, the trial court 

sustained Father’s objection to the physician certification forms because 

Mother neglected to provide the required 20-days’ notice of the forms. The 

certified record confirms not only that Mother failed to comply within 20 days 

of the support conference, but also that, despite two continuances that 

delayed the hearing from August 18, 2015 to September 24, 2015, Mother 

neglected to serve the forms upon Father at all. By failing to serve the 

forms on Father, Mother denied him the opportunity to review the 

documents and level any substantive objections to their admission without 

the examining physicians’ testimony. Under these circumstances, we cannot 
J-A20014-14

- 12 -

discern an abuse of discretion in the trial court’s decisions to sustain Father’s 

objection to the admission of the two forms. 

As the trial court properly excluded the physician verification forms 

pursuant to Rule 1910.29(b), the court examined Mother’s bare assertion 

that her anxiety and depression prevented her from working in any 

meaningful manner. As noted, the trial court found Mother’s testimony 

unpersuasive. Since credibility determinations are squarely within the 

purview of the fact finder, we have no basis to disturb the trial court’s 

conclusion that Mother’s reduced employment was properly considered 

voluntary under the guidelines and that she did not make any reasonable 

attempts to mitigate her lost income.5 

Finally, we rebuff Mother’s assertion that it was unfair for the trial 

court to assess her with a full-time earning capacity at this stage of her 

career when she traditionally limited her employment to approximately 

twenty-hours per week while the family was intact. Even considering 

____________________________________________

5

In light of the fact that the initial allegation of abuse was expunged, we 

reject the trial court’s rationale that Mother’s unpaid suspension between 

January and July 2015 was tantamount to a voluntary reduction in 

employment. However, to the extent that Mother is terminated or endures 

another unpaid suspension based upon a substantiated allegation of abuse, 

we would agree with the trial court that those consequences would 

constitute a voluntary reduction in income under the guidelines. Absent 

these additional facts, however, our holding is based upon Mother’s decision 

to reduce her work load to four hours per week notwithstanding her ability 

to secure the required CPSL clearances. 
J-A20014-14

- 13 -

Mother’s typical schedule, the discrepancy between Mother’s training, work 

history, and wage rate and her current income is palpable. It is beyond 

argument that Mother worked at least twenty hours per week while 

managing an intact family or at least maintaining equally shared physical 

custody of three children. Now that those constraints have been lifted, logic 

would dictate that Mother has additional time to dedicate to her 

employment. Mother’s unqualified financial obligation towards her three 

children is not negated by the strain of everyday life. Thus, for all of the 

foregoing reasons, we find the the trial court did not abuse its discretion in 

assessing Mother a fulltime employment wage, even though prior 

circumstances, that are no longer applicable, dictated that she maintain a 

part-time schedule. Mother’s claim fails. 

In sum, the certified record reveals that upon considering Mother’s 

earning history, current earnings, and the prevailing economic conditions, 

the trial court reasoned that Mother’s earning capacity should more 

accurately reflect her earning potential rather than her actual income. As 

the trial court’s rationale adressed the appropriate considerations 

enumerated in Rule 1910.16-2(d)(4) and was not the result of partiality or 

ill-will, we cannot find a basis to disturb its conclusion. 

Order affirmed. 
J-A20014-14

- 14 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016