J-A11034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.L.H.

v.

T.M.J. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1355 MDA 2016

Appeal from the Order Entered July 18, 2016

In the Court of Common Pleas of Adams County 

Civil Division at No(s): 07-DR-536

BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 23, 2017

Appellant T.M.J. (hereinafter “Mother”) appeals the Order entered in 

the Court of Common Pleas of Adams County on July 18, 2016, requiring her 

to pay Appellee N.L.H. (hereinafter “Father”) a monthly support payment in 

the amount of $1,368.36 for the parties’ three children. Following a careful 

review, we vacate and remand. 

The trial court aptly set forth the facts and procedural history herein as 

follows:

Father first filed a Complaint for Support on October 1, 

2007. The initial support order for the parties was entered on 

November 15, 2007. Mother was ordered to pay $1,368.36 per 

month for the support of the parties' three children.

On September 25, 2015, Father filed a Petition for 

Modification of an Existing Support Order due to changes to the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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parties’ circumstances. Father alleged that Mother was making 

more money than she had been making when the Order was 

originally entered, and he stated that the parties’ daughter spent 

the majority of her time with Father. A conference was 

scheduled for November 2, 2015.

The parties met with the Conference Officer separately, 

due to scheduling conflicts, and both were accompanied by their 

respective counsel. The Conference Officer found that Father 

owned his own home remodeling business and that his earnings 

had steadily increased since 2012. The Conference Officer found 

that Mother worked as a doctor for Summit Physician Services 

and Penn State University. Her gross income from Summit was 

$165,000 plus bonuses. The Conference Officer used Mother's 

tax return to calculate her additional income from Penn State, as 

she did not provide any other proof of this income. The 

Conference Officer found that Father could not receive support 

for the parties' daughter because the daughter only spent 

weekends with Father. Mother requested that Father be held to a 

higher income of $80,000 but this was denied because Father's 

income documentation spanning several prior years did not 

support this. In addition, Father would require additional 

education to re-enter the computer programing field. The 

Conference Officer also found that the parties' daughter would 

be emancipated on June 1, 2016, upon her graduation from high 

school.

An Allocated Order of Court was entered on December 15, 

2015. The Court determined Mother's monthly net income to be 

$13,311.26 and Father's monthly net income to be $3,932.79. 

Mother was ordered to pay $1,176.00 per month for the parties' 

two sons and $2,597.03 in arrears. On January 5, 2016, Mother 

filed a Demand for Hearing De Novo and raised the following 

issues:

1. Mother should receive an offset for having majority 

custody of all three (3) children;

2. Mother should receive an offset due to the 

extraordinary medical expenses of the children;

3. Mother should receive a larger offset for her school 

loans;

4. The Hearing Officer may have erred in calculating 

Father's income.

This matter was scheduled for a hearing on February 10, 

2016. On January 19, 2016, Mother filed a Petition for Special 

Hearing. In her Petition, Mother averred that, due to the 

complexity of the matter, the hearing should be specially set for 
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a two-hour time period and the hearing should not be set for at 

least forty-five days in order to allow Mother ample time to 

complete discovery. The De Novo Hearing was rescheduled for 

March 14, 2016 by Order of Court dated January 26, 2016. On 

February 4, 2016, Mother filed a Petition to Pursue Discovery in 

a Support Case Pursuant to Pa.R.C.P. 1910.9. On February 5, 

2016, this Court granted Mother's request and ordered that 

Mother may use the discovery rules available in civil actions as 

set forth in the Pennsylvania Rules of Civil Procedure. On March 

9, 2016, Mother filed a Motion for Continuance in order to allow 

for the exchange of discovery which was granted by Order of 

Court on March 10, 2016. The De Novo Hearing was rescheduled 

for May 25, 2016.

At the scheduled Complex De Novo Hearing on May 25, 

2016, the Court had a discussion with counsel, after which the 

Court decided to continue the matter until June 28, 2016. The 

Court found that there were several outstanding discovery 

requests and it ordered the parties to turn over documents that 

had previously been withheld by June 17, 2016. Additionally, the 

Court ordered that counsel for the parties may submit legal 

memoranda regarding the issues raised in the de novo appeal.

The Complex De Novo Hearing was ultimately held on June 

28, 2016, after which the Court took this matter under 

advisement. An Order of Court was entered on July 18, 2016. 

The Court denied the Mother's request for an offset for having 

majority custody of the parties' daughter and equally shared 

custody of the parties' two sons. The Court denied Mother's 

request for a modification of her income based on her having left 

one of her jobs, as her separation from her employment with 

Penn State was voluntary. The Court found that Mother's student 

loans are not an "unusual fixed obligation" pursuant to Pa.R.C.P. 

1910.16-5 and denied Mother's request for a downward 

deviation for the loans, concluding that $830 per month in loans 

was a manageable portion of her income. The Court found that 

that Father had gross earnings of $50,117 in 2015 and ordered 

that this figure would be used to calculate his income for support 

purposes.

In its July 18, 2016 Order of Court, this Court directed the 

Domestic Relations Office to issue a two-tiered order. Tier 1, in 

the amount of $863.00 per month, was effective from 

September 25, 2016 until June 1, 2016, when the parties' oldest 

child became emancipated. Tier 2 became effective as of June 2, 

2016, and was in the amount of $1,355.00 per month. On July 

20, 2016, this Court entered an Order stating its findings that 
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Father's monthly net income is $3,987.87 and Mother's monthly 

net income is $11,472.03 and ordering Mother to pay support for 

the parties' two sons to Father in the amount of $1,490.001 per 

month. Arrears were set at $1,184.50.

On August 18, 2016, Mother timely filed her Notice of 

Appeal of the July 18, 2016 Order of Court. Mother timely filed 

her Statement of Matters Complained of on Appeal Pursuant to

Pa.R.A.P. 1925(b) on September 7, 2016.

Trial Court Opinion, filed October 12, 2016 at 1-4.

In her brief, Mother presents the following Statement of the 

Questions Involved:

1. Did the trial court err as a matter of law and/or abuse its 

discretion in determining Mother owed support to father for 

the period of time when the parties’ daughter lived solely 

with her and the parties equally shared custody of the 

other two (2) minor children, pursuant to Pa.R.C.P. No. 

1910.16-4(d)?

2. Did the trial court err as a matter of law and/or abuse its 

discretion in relying upon Colonna v. Colonna, 581 Pa. 1, 

855 A.2d 648 (Pa 2004) when the court was not provided 

with any evidence of [Father’s] need for economic support 

for the two (2) children who spent only 50% of the time 

with [Father]?

3. Did the trial court err as a matter of law and/or abuse its 

discretion in calculating Mother’s income to include the 

income from a second job when Mother’s primary job is 

full-time and her income is more than sufficient to provide 

support for the children?

4. Did the trial court err as a matter of law and/or abuse its 

discretion in requiring Mother to work a second job when 

she is already employed full-time? 

Brief for Appellant at 1 (unnecessary capitalization omitted). As 

Mother’s first two issues and the latter two also overlap, we will 

conduct a two part analysis for ease of discussion. 
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This Court’s standard of review in a child support case is wellsettled: 

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.

Silver v. Pinskey, 981 A.2d 284, 291 (Pa.Super. 2009) (en banc) (quoting 

Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)). Additionally, “[t]he 

fact-finder is entitled to weigh the evidence presented and assess its 

credibility[.]” Samii v. Samii, 847 A.2d 691, 697 (Pa.Super. 2004) (quoting 

Green v. Green, 783 A.2d 788, 790 (Pa.Super. 2001), appeal denied, 569 

Pa. 707, 805 A.2d 524 (2002)).

In most cases, child support is awarded pursuant to a statewide 

guideline as follows:

§ 4322. Support guideline

(a) Statewide guideline.—Child and spousal support shall be 

awarded pursuant to a Statewide guideline as established by 

general rule by the Supreme Court, so that persons similarly 

situated shall be treated similarly. The guideline shall be based 

upon the reasonable needs of the child or spouse seeking 

support and the ability of the obligor to provide support. In 

determining the reasonable needs of the child or spouse seeking 

support and the ability of the obligor to provide support, the 

guideline shall place primary emphasis on the net incomes and 

earning capacities of the parties, with allowable deviations for 
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unusual needs, extraordinary expenses and other factors, such 

as the parties' assets, as warrant special attention. The guideline 

so developed shall be reviewed at least once every four years.

23 Pa.C.S.A. § 4322(a). Well-established law makes clear both parents are 

responsible for the support of their children. Samii, supra at 696 (citation 

omitted). A parent's ability to provide child support is based upon the 

parent's earning capacity rather than his or her actual earnings. Id. In 

addition, Pa.R.C.P. 1910.3(b) states that the trier of fact is not to consider 

who filed the support action or modification when making its determination 

which party is the obligee or the obligor therein. 

Herein, Mother initially contends that in light of Pa.R.C.P. 1910.16-

4(d), the trial court erred in its determination that Mother owed support to 

Father because at the time Father filed his petition to modify the parties’ 

existing child support order, their oldest child lived solely with Mother and 

the parties shared physical custody of their other two children. Mother 

further avers the trial court erred in relying upon our Supreme Court’s 

decision in Colonna v. Colonna 581 Pa. 1, 855 A.2d 648 (2004) when 

fashioning its support order. 

Pa.R.C.P. 1910.3(b)(1) provides that “[i]n general, the party who has 

primary custody of the children shall be the obligee of a child support order.” 

Pa.R.C.P. No. 1910.3(b)(1). However, Pa.R.C.P. No. 1910.16-4(d)(2) states 

that where, as herein, the custody schedule varies, support obligations 

should be calculated as follows: 
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(2) Varied Partial or Shared Custodial Schedules. When the 

parties have more than one child and each child spends either 

(a) different amounts of partial or shared custodial time with the 

party with the higher income or (b) different amounts of partial 

custodial time with the party with the lower income, the trier of 

fact shall add the percentage of time each child spends with that 

party and divide by the number of children to determine the 

party’s percentage of custodial time. If the average percentage 

of custodial time the children spend with the party is 40% or 

more, the provisions of subdivision (c) apply.

Pa.R.C.P. No. 1910.16-4(d)(2). 

In applying the aforesaid provision, the trial court correctly calculated 

Mother’s physical custody time with the children for the relevant time period 

as follows: 

[E]ach of the parties’ two sons spends 50% of his time with each 

parent. The parties’ daughter spends 100% of her time with 

Mother. Tr. At 12. Thus, this amounts to a 66.7% average of 

the time spend [sic] with the obligor2, a clear majority of the 

total time the children spend with the parties.

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250% + 50%+ 100%= 200%; 200%/3=66.7%. 

Trial Court Opinion, filed 10/12/16, at 166-67. Notwithstanding, the trial 

court rejected Mother’s argument that as the parent with the majority of 

custodial time she did not owe a duty of support to Father. In doing so, the 

court reasoned that Colonna, supra, identified an exception to Pa.R.C.P. 

No. 1910.16-4(d) which applies to the within matter. We disagree.

In Colonna, our Supreme Court, in a split decision, concluded “that a 

parent with primary custody may be ordered to pay child support to a 
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parent with partial custody.” Colonna, supra, 581 Pa. at 9, 855 A.2d at 

648, 652 (emphasis added).1 The Court stated its belief that where the 

incomes of parents differ significantly, a trial court abuses its discretion 

when it fails to determine whether a deviation from the support guidelines is 

appropriate. Under such circumstances, the Court directed trial courts to 

consider: 

(1) unusual needs and unusual fixed obligation;

(2) other support obligations of the parties;

(3) other income in the household;

(4) ages of the children;

(5) assets of the parties;

(6) medical expenses not covered by insurance;

(7) standard of living of the parties and their children;

* * *

(9) other relevant and appropriate factors, including the best 

interests of the child or children.

Colonna, supra 581 Pa. at 8, 855 A.2d at 652. The Court went on to state 

that 

[i]n a case such as the instant matter, the trial court 

should inquire whether the non-custodial parent has sufficient 

assets to provide the children with appropriate housing and 

amenities during his or her period of partial custody. We 

specifically note that the term “appropriate” does not mean 

____________________________________________

1

Justice Newman authored the Majority which then Justice Saylor joined. 

Justice Nigro concurred with the Majority that the obligor parent may also be 

the custodial parent in a child support case but cautioned the trial court 

against basing its decision to deviate on a presumption a child will prefer a 

relationship with the parent who can provide the child with greater material 

possessions. Chief Justice Cappy authored a dissent which then Justice 

Castille joined wherein he indicated his belief that a custodial parent should 

not be obligated to pay child support to the noncustodial parent. Justice 

Lamb did not participate in the decision. 
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equal to the environment the children enjoy while in the 

custodial parent's care, nor does it mean “merely adequate.” The 

determination of appropriateness is left to the discretion of the 

trial court, upon consideration of all relevant 

circumstances.

Id. (emphasis added). 

In the matter sub judice, contrary to considering the aforementioned 

factors, the trial court commented on the dearth of evidence in this regard 

as follows: 

In the instant case, there was little testimony as to Father’s 

ability to provide the children with appropriate housing and 

amenities. However, Father did state that he is able to meet his 

expenses “not every month, most months”, Tr. At 12, and that 

he pays for his son J.E.H.’s prescriptions sometimes and for his 

son A.M.H.’s contacts. Additionally, he provides food and 

clothing and “whatever they need”. Tr. At 12. While this 

testimony was brief, the [c]ourt finds it persuasive that Father 

was unable to meet his monthly expenses every month when he 

was receiving child support in addition to his income. 

Trial Court Opinion, filed 10/12/16, at 6-7. In reliance upon Colonna, the 

trial court went on to baldly conclude that because Mother’s income is 

almost three times greater than Father’s “the benefit of a support order to 

supplement Father’s income is in the best interest of the children.” Id. at 7. 

In light of the foregoing, we find the trial court abused its discretion in 

deviating from the support guidelines without first making specific findings 

as to whether Father as the noncustodial parent had sufficient assets to 

provide the children with appropriate housing and amenities pursuant to the 

factors set forth in Colonna. Accordingly, we vacate the trial court's order 
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and remand for an evidentiary hearing to enable the trial court to inquire as 

to all relevant factors set forth in Pa.R.C.P. 1910.16-5(b) relating to 

deviation from the support guidelines as our Supreme Court directed in 

Colonna. Upon consideration thereof, the trial court shall make a 

determination as to whether a deviation from the support guidelines was 

proper such that Mother owes child support to Father. 

In her final two issues, Mother contends the trial court erred when it 

included income from her second job in its calculation of her income. 

Appellant explains that as a full-time physician she is required to work sixty 

(60) hours per week, and she chose to relinquish her additional, part-time 

job as the director of the clinic at the Penn State Mont Alto Campus in 2015 

in order to spend more time with her children. Mother stresses that her job 

as a physician in itself “is the functional equivalent of one full time and one 

part time job,” and trial court’s order “has the effect of requiring Mother to 

work above and beyond a sixty (60) hour work week to earn minimally more 

money that won’t necessarily benefit the children more than spending time 

with their mother.” Brief for Appellant at 11-13. 

At the outset, we note that, generally, there will be no effect on one’s 

support obligation where he or she voluntarily assumes a lower paying job. 

Pa.R.C.P. No. 1910.16-2(d)(1). Although a person's actual earnings usually 

reflect her earning capacity, where there is a divergence, the obligation is 

determined more by earning capacity than actual earnings. Woskob v. 
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Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004). Earning capacity is the 

amount that one realistically could earn under the circumstances, not the 

amount which he or she theoretically could earn. Gephart v. Gephart, 764 

A.2d 613, 615 (Pa.Super. 2000). “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)(4). Importantly, the trial court must conduct a full inquiry before 

making a factual determination about a party's earning capacity. See 

Haselrig v. Haselrig, 840 A.2d 338 (Pa.Super. 2003). If a party has 

willfully failed to maintain appropriate employment, the trier of fact “may 

impute to that party an income equal to the party's earning capacity.” 

Pa.R.C.P. No. 1910.16-2(d)(4).

While the trial court herein acknowledged Mother had testified that she 

left her “second job” with Penn State due to her desire to have more time at 

home with her children, it found that she had not presented adequate 

evidence of an attempt to mitigate the loss in income or that her voluntary 

termination if her part-time employment was not done in an effort to reduce 

her support obligation. Without support from the record or elaboration, the 

court expressed its belief that “the timing of Mother’s voluntary termination 

of her second income source [was] suspicious in light of Husband’s Petition 

for Modification of an Existing Support Order.” Trial Court Opinion, filed 

10/12/06, at 8. 
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Mother explained that as a full-time physician at Summit Physician 

Services, she is required to work sixty (60) hours per week. N.T. 9/9/16, at 

23-24. In 2015, Mother received a base salary of $192,743 and an 

additional $27,743 in incentive bonus payments for working beyond her 

sixty hour week. Mother already had accumulated incentive bonus earnings 

at the time of the hearing in an amount of $1,798.06 and intended to 

accumulate more in the latter part of the year. Id. at 27. She earned just 

$9,070 in 2015 for her work at Penn State. Id. at 25. 

In deciding whether the trial court erred in its determination that 

Mother should be imputed with income she had been receiving from her 

second, part-time job, we are guided by our prior decision in Haselrig, 

supra. Therein, this Court was presented with the unique issue of whether 

an obligor should be imputed with income from a second full-time job he 

recently left. Significantly, we observed that “[t]heoretically, any person 

who is obligated to support a spouse and children could work sixteen hour 

days, with eight hours left in which to sleep. But the question is whether it is 

realistic and reasonable to do so.” Id. at 340. We ultimately concluded 

that 

the law in Pennsylvania clearly requires the trial court [to] 

conduct a full inquiry before making a factual determination of 

an obligor's true earning capacity. We bear in mind that the late 

Honorable Vincent A. Cirillo, former President Judge of the 

Superior Court, astutely pointed out in his dissent in Akers[v. 

Akers 540 A.2d 269 (Pa.Super. 1988)], “A person's ability to 

pay support should be calculated only from his or her earning 

capacity at one full-time job.... The court could not order 
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[Husband] to work a second job initially and it should not be able 

to force him to continue that employment once he had decided 

that the second job no longer profits him, financially or 

otherwise.” Akers, supra at 272. 

Id. at 341. Finding the record to be devoid of any inquiry into the 

necessary, relevant factors to establish the obligor’s realistic earning 

capacity, this Court vacated the trial court’s order and remanded for a full 

evidentiary hearing to enable the trial court to determine his earning 

capacity. Id. 

At the time of the hearing, Mother had been employed with Summit 

Physician Services for eight years and routinely received additional salary for 

hours spent above and beyond the sixty-hour full-time requirement. This 

work history is distinguishable from the type of situation to which the trial 

court alluded in its opinion wherein one relinquishes lucrative employment in 

an attempt to avoid a support obligation. 

Indeed, without making a full inquiry at the hearing as to Mother’s full 

earning capacity or considering the demanding hourly requirements of 

Mother’s full-time job, the trial court baldly asserted that the timing of her 

termination of her second income source was “suspicious.” In addition, it 

dismissed as incredible her desire to spend more time with her children as 

the reason behind her decision to relinquish her part-time employment, 

which comprised a minimal part of her annual income, and instead found she 

did so in an effort to reduce her support obligation. Trial Court Opinion, filed 

10/12/16, at 8. 
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As such, we find the trial court’s failure to make a finding as to 

Mother’s true earning capacity and determination that Mother needed to 

present evidence of an attempt to mitigate the loss of her part-time income 

was an abuse of discretion. We direct the trial court to make such findings 

upon remand and consider the same when fashioning any support obligation 

of the parties.

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2017