J-A16037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

* Retired Senior Judge assigned to the Superior Cou rt. S.J.P., Appellee : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

: v. : : L.L.P., Appellant : : : : No. 1302 WDA 2015 Appeal from the Order Dated August 6, 2015 in the Court of Common Pleas of Allegheny County, Family Division at No(s): FD 13-006662-009 BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 07, 2016 L.L.P. (Mother) appeals from the trial court’s den ial of Mother’s exceptions to the hearing officer’s recommendations which granted S.J.P.’s (Father’s) motion for modification. After a thorou gh review, we reverse. 1 Mother and Father are the parents of two minor chi ldren (Children), born in May 2005 and August 2010, who are the subje ct of the instant support action. An initial support order was enter ed by consent on September 11, 2013. This order obligated Father to pay $1,400 per month in child support, $50.00 in arrears, and a portion of Children’s medical care

expenses.

1 Also before us is Father’s motion to quash based o n alleged insufficiencies within Mother’s brief and the reproduced record. B ecause we do not find any of the alleged deficiencies to impede our revie w, we deny Father’s motion.J-A16037-16

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In March 2015, Father filed a petition for modifica tion of the support order, 2 which was granted by the hearing officer. Specifi cally, the hearing officer determined Mother's net monthly income to b e $6,859 and Father's monthly net income to be $7,559. The officer there fore recommended that Father's child support obligation be reduced to $31 7 per month, plus $40 on arrears. Mother filed exceptions. The trial court heard arguments and ultimately dismissed Mother’s exceptions and entere d the hearing officer’s

recommendations as a final order. Mother timely filed a notice of appeal from that or der, and both Mother and the trial court complied with Pa.R.A.P. 1925. Mother states one question for our review: “Whethe r the [trial court] erred in finding that [Father’s] averment that his income slightly changed constitutes a substantial change in circumstances s o as to justify a substantial reduction in a non-income, non-guidelin e based consent order for child support?” Mother’s Brief at 1 (capitalizatio n and suggested answer omitted).

We set forth our well-settled standard of review an d applicable principles of law with respect to a support order.

2 The petition stated that Father’s income had “incr eased” as the reasoning for seeking modification. See Motion for Modification, 3/15/2015, at 2. Father avers this was a mistake made by the individ ual in the Domestic Relations Office who prepared Father’s modification petition. Father’s Brief at 3.J-A16037-16

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When evaluating a support order, this Court may onl y reverse the trial court’s determination where the order can not be sustained on any valid ground. We will not interfer e 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 ju dgment; if, in reaching a conclusion, the court overrides or misap plies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partialit y, prejudice, bias or ill will, discretion has been abused. In a ddition, we note that the duty to support one’s child is absolute, a nd the purpose of child support is to promote the child's best int erests. Silver v. Pinskey , 981 A.2d 284, 291 (Pa. Super. 2009) (quoting Mencer

v. Ruch , 928 A.2d 294, 297 (Pa. Super. 2007)). “An award of support, once in effect, may be modifi ed via petition at any time, provided that the petitioning party demon strates a material and substantial change in their circumstances warrantin g a modification.”

Plunkard v. McConnell , 962 A.2d 1227, 1229 (Pa. Super. 2008). See

also Pa.R.C.P. No. 1910.19(a) (“A petition for modifica tion or termination of an existing support order shall specifically aver t he material and substantial change in circumstances upon which the petition is based.”). Demonstrating a material and substantial change is necessary to modify both court-ordered and consented-to support orders. See

Boullianne v. Russo , 819 A.2d 577, 580 (Pa. Super. 2003) (citing

Nicholson v. Combs , 703 A.2d 407, 417 (Pa. 1997) (“[A] family court’s power to modify a support order downward is not pre cluded by the existence of an agreement upon which the support order is bas ed. ‘In [a] support action,... the payee may not claim that the [agreem ent] prevents the familyJ-A16037-16

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court from modifying the order downward if such red uction is necessary to prevent payor from having to comply with an order t hat he cannot pay due to changed circumstances.’”). On appeal, Mother argues that the trial court erre d in accepting the hearing officer’s recommendations to decrease Fathe r’s monthly support obligation. Specifically, Mother avers that Father ’s income has actually increased, and regardless of whether it has increas ed or decreased, such fluctuation is due to a voluntary change in circums tances, i.e. : Father voluntarily changing jobs does not warrant a change in Father’s support obligation. Mother’s Brief at 5-7. The trial court offered the following explanation t o support its findings that Father presented a material and substantial ch ange. Notwithstanding the fact that an increase in income may constitute a material and substantial change in cir cumstance thus making [Mother’s] sole issue complained of on appeal meritless, this [c]ourt finds that Father actually had a decrease in income between 2013 and 2015; which further just ifies a modification of the 2013 Support Consent Order. Th e record from the April 28, 2015 modification hearing reveal s that [Father] changed employers multiple times between 2 013 and 2015. Due to overlapping bonuses and some independ ent contract work in 2013, [Father] was projected to ea rn approximately $140,000 per year at the time the 201 3 Support Consent Order was entered. In 2015, however, the re cord reflects that [Father] is earning only $126,880 per year, a $13,120 decrease in income since 2013. Trial Court Opinion (TCO), 10/23/2015, at 6-7. The court further found that at the time the [s]upport [c]onsent [o]rder was ent ered, [Father and Mother’s] respective incomes were [u]nknown as the Order was entered without any testimony and/or findings. After reviewing the entire situation de novo, it is clear that [Father]J-A16037-16

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has sustained his burden of proving a material and substantial change in circumstances and that the Hearing Office r was justified in recommending a support order based upo n the parties’ respective net incomes as of 2015 and in a ccordance with Pennsylvania’s Support Guidelines. Id. at 7. We disagree. Accepting the trial court’s finding t hat Father’s income decreased by $13,120, 3 that decrease was neither an involuntary change no r a substantial one. “As is provided in Pa.R.C.P. 19 10.16–2(d)(1), [4] generally there is no change to the support obligation follow ing a voluntary reduction of income[.]” Smedley v. Lowman , 2 A.3d 1226, 1228 (Pa. Super. 2010). While our Court has upheld support modifications ba sed upon voluntary reductions in income, we have long held that in ord er for such a reduction to be warranted, a petitioner must first establish that the voluntar y change in employment which resulted in a reduction of income was not made for the purpose of avoiding a child support ob ligation and secondly, that a reduction in support is warranted based on petitioner's efforts to mitigate any income loss. I n effect, petitioner must present evidence as to why he or sh e voluntarily left the prior employment and also as to why the ac ceptance of a lower paying job was necessary.

Grimes v. Grimes , 596 A.2d 240, 242 (Pa. Super. 1991).

3 Mother argument that Father’s income has not decre ased since entering into the 2013 consent custody order is of no moment , since we find Father’s purported decrease in income of $13,120 to be neith er a substantial nor involuntary change to warrant a change in his suppo rt obligation.

4 “When either party voluntarily assumes a lower pay ing job, quits a job, leaves employment, changes occupations or changes e mployment status to pursue an education, or is fired for cause, there g enerally will be no effect on the support obligation.” Pa.R.C.P. 1910.16–2(d)(1).J-A16037-16

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Instantly, Father failed to present evidence that h e had made efforts to mitigate the income loss, nor why accepting his current position was

necessary. 5 Significantly, Father makes no argument that the less than 10% reduction in income prohibited him from paying the monthly court-ordered support and he does not dispute the fact that he vo luntarily chose to change jobs, understanding his income would decrease as a result.

We are mindful that it is within the trial court’s discretion to determine what a substantial change is. See Plunkard v. McConnell , 962 A.2d 1227, 1229 (Pa. Super. 2008) (“[T]he determination of whe ther such change has occurred in the circumstances of the moving party r ests within the trial court’s discretion.”). Likewise, we are cognizant that since the prior sup port order was entered by consent, without testimony or determination of the parties’ income, the trial court “was not limited t o considering only changed circumstances, but could be justified in examining the entire situation de

novo .” Bradley v. Bradley , 564 A.2d 504, 506 (Pa. Super. 1989). However in this case, the trial court’s analysis is completely devoid of any reason why Father’s voluntary reduction in inco me, resulting in a less

than 10% difference between his income in 2013 and 2015, warranted a

5 Father’s counsel set forth his work history, expla ining that since 2013 he left three jobs for various personal reasons, inclu ding that he felt one department he worked in was “completely disorganize d and [Father] did not like the way the department was run.” N.T., 4/28/2 015, at 6, 10. He eventually accepted his current position which he “ plans to stay [] for the immediate future” where he is paid hourly with no b onus structure, vacation pay, or sick days. Id. at 11.J-A16037-16

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reduction in his obligation, a complete disregard o f the parties consented to agreement, and a new order based on the support gui delines. Because we find a dearth of evidence to support the trial court’s

conclusion that Father has met his burden in accord ance with our wellestablished case law, we vacate the order granting Father’s support modification and reinstate the order dated Septembe r 11, 2013. Order vacated. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/7/2016