J-S52024-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.A.S. 

Appellant

v.

K.F.S.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 435 MDA 2018

Appeal from the Order Entered January 30, 2018

In the Court of Common Pleas of Lancaster County Domestic Relations at 

No(s): 2011-01412, 

PACSES: 036112476

K.F.S.

v.

N.A.S. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 436 MDA 2018

Appeal from the Order Entered January 30, 2018

In the Court of Common Pleas of Lancaster County Domestic Relations at 

No(s): 2017-02851, 

PACSES: 253116782

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 13, 2018

N.A.S. (“Mother”) appeals from the support order entered on January 

30, 2018. Mother alleges an abuse of discretion by the trial court when it 

assigned her an earning capacity and by ordering Mother to repay an 

overpayment to K.F.S. (“Father”). We affirm.
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The trial court aptly summarized the factual and procedural history of 

this case as follows:

On November 3, 2015, following a complex support hearing, 

the court ordered [Father], to pay $2,326.96 per month in support 

of the parties’ three children. On July 25, 2017, [Father] filed a 

request for modification, alleging that he now had full legal and 

physical custody of these children. After being continued once, the 

Domestic Relations Officer held a support modification conference 

on September 22, 2017. Following this conference, the court 

entered an order on September 27, 2017, terminating the support 

order in the 2011 [c]ase without prejudice, as it determined the 

children were no longer in the custody of [Mother]. The court 

further ordered [Mother] to reimburse [Father] the child support 

overpayment of $9,428.59 within sixty days. [Mother] filed a 

demand for a hearing on October 17, 2017. After being continued 

once, this hearing was held on January 25, 2018. 

[Father] filed a complaint for support on October 26, 2017. 

A recommended order was issued on December 6, 2017. This 

order required [Mother], to pay $390.78/month in support of the 

parties’ three children, as well as $39.00/month on arrears. 

[Mother] filed a petition of special relief requesting a hearing on 

the support order and the court granted this request by order 

dated January 9, 2018.

The court . . . consolidated the two cases [and held a hearing 

on both cases on January 25, 2018.] It entered an order on 

January 30, 2018. This order was effective October 26, 2017, and 

required [Mother] to pay $556.99 in support of the parties’ three 

children and to pay $108 per month on arrears. It further ordered 

that the $9,428.59 overpayment in the 2011 [c]ase be added to 

the 2017 [c]ase as an arrearage. 

***

Prior to 2005, [Mother] worked in a variety of professional 

positions, earning as much as $80,000 per year. She worked as a 

clinical auditor and a sales representative for Johnson & Johnson. 

She has a college education. In 2005[,] she voluntarily left 

employment in order to care for the couples’ children. Since that 

time, she was a fulltime mother and homemaker. During their 
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marriage, she started her own business, but this was not a 

financial success. Following the parties’ separation, [Mother] lived 

in New Jersey and had primary physical custody of the children. 

Father lived in Lancaster, Pennsylvania, and saw the children for 

only a few hours on the weekends. [Mother] also attempted to 

find employment following the parties’ separation. She obtained 

her real estate license in 2013 but was unable to generate income 

with this certificate. She testified that this was due largely to 

health issues suffered by one of the parties’ children. Although

[Mother] testified that she hopes one day to return to work, she 

presented a Physician’s Verification Form completed by Edward M. 

Franzoni, Ph.D. [Father] did not object to the introduction of the 

Form. On the Verification Form, Dr. Franzoni noted that [Mother] 

was currently unable to work due to her adjustment disorder with 

anxiety. [Mother] admitted that she had no physical limitations 

preventing her from working, but she suffered mental limitations 

stemming from the removal of the children from her custody. This 

occurred in July of 2017. 

Trial Court Opinion (“TCO”), filed 4/9/18, at 1-3 (citations to record omitted).

On appeal, Mother raises the following issues:

I. Did the trial court err by assigning Mother an income when 

the only evidence regarding her ability to work was her 

uncontested Doctor’s Verification form stating she was not 

able to earn income?

II. Did the trial court err in assigning Mother an earning 

capacity of $15 an hour for 40 hours a week, when no 

evidence was presented regarding any employment 

anywhere that Mother she [sic] was qualified to obtain for 

any number of hours or paying any hourly rate?

III. Did the trial court err in sua sponte requiring Mother to 

repay Father an overpayment because of the termination of 

her support where Father did not petition for repayment 

under the statute? 

Mother’s Br. at 5. 

“Appellate review of support matters is governed by an abuse of 

discretion standard.” J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa.Super. 2015) 
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(quoting R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013)). An abuse of 

discretion is where the judgment is “manifestly unreasonable or the result of 

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

Hanrahan v. Bakker, 186 A.3d 958, 966 (Pa. 2018). Absent an abuse of 

discretion or insufficient evidence to sustain the order, we will not interfere 

with the court’s discretion. Sirio v. Sirio, 951 A.2d 1188, 1192 (Pa.Super. 

2008).

First, Mother contends that the trial court committed error when it 

assigned her an earning capacity despite her inability to work. See Mother’s 

Br. at 13. Mother argues that the trial court “should have relied on the properly 

admitted [f]orm of Dr. Franzoni and his determination that Mother’s 

adjustment disorder with anxiety made it so she was currently unable to 

work.” Id. at 17.

The Physician’s Verification Form submitted into evidence by Mother, 

with no objection from Father, read that Dr. Franzoni diagnosed Mother with

Adjustment Disorder with Anxiety; that it affected her ability to earn income; 

but that Dr. Franzoni could not determine if Mother had the ability to return 

to work because “[t]here may be future limitations.” See Physicians 

Verification Form. When the court asked Mother how her diagnosis affected 

her ability to work, Mother replied:

Your Honor, my children were removed, screaming out of my arms 

in July. I’ve been fighting false allegations that are coming from –

directly from my ex-husband since July. I am not doing well. So 

I’ve been out almost every single night since July, since my kids 
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were taken, I can barely sleep. During the holidays, I wasn’t able 

to celebrate Christmas. The holidays, I had a very difficult time, 

you know, walking into stores seeing the holiday decorations. I 

can’t go into the same stores I used to go into, seeing people we 

used to know asking about the children, everyone asking about 

the children. There are already tears, and it only helps that I can 

only be around people who know what’s going on so they can help 

me redirect the conversation. 

Notes of Testimony (“N.T.”), 1/25/18, at 62. Mother also testified that her 

disorder was a mental rather than a physical issue. Id. at 63. While the court

accepted the Physician’s Form into evidence, it did not find Mother credible 

“when she testified that her mental health diagnosis prevented her from 

finding some form of employment.” TCO, at 6. 

Since “we are bound by the trial court’s credibility determinations,” no 

relief is due. K.A.R. v. T.G.L., 107 A.3d 770, 775 (Pa.Super. 2014). It was 

within the court’s discretion to accept the form into evidence but it was not 

required to believe that evidence or Mother’s testimony. See

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa.Super. 2018) (stating 

fact finder is “free to believe, all, part, or none of the evidence presented when 

making credibility determinations.”). The trial court concluded that despite her 

disorder, Mother had the ability to obtain employment and therefore 

determined that it could assign her an earning capacity. See TCO, at 6. The 

trial court’s finding that Mother has the present ability to work is supported by 

the record. Indeed, even Dr. Franzoni stated in the form that he could not 

determine whether Mother was unable to work. No relief is due. 
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Next, Mother contends that even if the court did not commit error in 

finding that she was capable of working, it erred when it assigned her an 

earning capacity of $15 per hour at 40 hours per week, “a figure pulled from 

thin air.” Mother’s Br. at 19. However, the record supports the trial court’s 

contrary conclusion.

“The determination of a parent’s ability to provide child support is based 

upon the parent’s earning capacity rather than the parent’s actual earnings.” 

Laws v. Laws, 758 A.2d 1226, 1229 (Pa.Super. 2000). Earning capacity is 

“the amount that a person realistically could earn under the circumstances, 

considering [their] age, health, mental and physical condition, training, and 

earnings history.” Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa.Super. 

2004). 

When calculating Mother’s earning capacity, the court based the amount 

on her education, training, and experience. See TCO, at 6-7. Moreover, it 

factored in that Mother had been out of the workforce for a significant period 

of time. Id. at 7. The Support Hearing record contained evidence regarding 

Mother’s work history and on that basis the trial court assigned her a modest 

“earning capacity of $15 per hour and forty hours per week which calculates 

to approximately $30,000 per year. . . .” Id. Thus, it assigned her an earning 

capacity moderately higher than minimum wage but significantly lower than 

the $80,000 salary she received when she was in the workforce. There was 

no abuse of discretion by the court. 
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Last, Mother maintains that the trial court erred by allegedly “sua sponte

ordering Mother to repay Father an overpayment that existed upon the 

termination of her support award.” Mother’s Br. at 20. The procedure for 

obtaining repayment of an overpayment of support is covered by Pennsylvania 

Rule of Civil Procedure 1910.19(g)(2), which provides:

(2) Order Terminated. If there is an overpayment in any amount 

and there is no charging order in effect, within one year of the 

termination of the charging order, the former obligor may file a 

petition with the domestic relations section seeking recovery of 

the overpayment. A copy shall be served upon the former obligee 

as original process. The domestic relations section shall schedule 

a conference on the petition, which shall be conducted consistent 

with the rules governing support actions. The domestic relations 

section shall have the authority to enter an order against the 

former obligee for the amount of the overpayment in a monthly 

amount to be determined by the trier of fact after consideration 

of the former obligee’s ability to pay.

Pa.R.C.P. § 1910.19(g)(2) (emphasis added). Accordingly, Rule 1910.19 

provides procedural steps to be taken when there is an overpayment including

filing a petition.

On November 22, 2017, Mother was ordered to “reimburse [Father] the 

child support overpayment of $9,428.59 within 60 days.” N.T., Support 

Hearing at 6. Mother’s counsel requested that “given the respective incomes” 

of Mother and Father, the trial court not order Mother to pay the overpayment. 

Id. at 30. In response, Father stated, “I object to this. I mean, it’s clearly an 

overpayment.” Id. at 30-31. Mother’s counsel responded by citing Colonna 
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v. Colonna, 855 A.2d 648 (Pa. 2004),1in support of his contention that 

because of the disparity in finances between the parties, Mother should not 

have to repay Father. Id. at 31-32. Father again stated, “It’s a clear 

overpayment.” Id. at 32. The court concluded that it would review the case 

law that counsel referenced before making its decision. Id. at 34. In its 

1925(a) opinion, the trial court acknowledged that while Father did not file a 

petition, it treated Father’s assertion that Mother should repay his 

overpayment as a “petition,” because Father was proceeding pro se. TCO, at 

7. 

We conclude that it was not an abuse of discretion for the court to rectify 

Father’s overpayment. While Father did not file a written petition, the domestic 

relations department added the overpayment to the case and the court acted 

within its discretion to remit his accrued support arrearages. See N.T., at 6; 

see also Support Order, filed 1/30/18; see also Portugal v. Portugal, 798 

A.2d 246, 255 (Pa.Super. 2002) (concluding trial court did not abuse its 

discretion by remedying Husband’s overpayment of spousal support with a 

monthly credit towards child support); cf. Kessler v. Helmick, 672 A.2d 

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In Colonna, the issue was whether the trial court erred in requiring Father 

to pay child support even though he had primary custody of the children and 

Mother had partial custody. Colonna, 855 A.2d at 648. The Court held that 

Father was required to pay child support to Mother even though he had 

primary custody of the parties children. Id. at 654. This case is inapposite to 

the instant case since here, Father has sole legal and physical custody of the 

parties’ children. See N.T., Support Hearing, at 15.
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1380, 1384-85 (Pa.Super. 1996) (holding trial court has discretion in setting 

method of payment for arrearages where court ordered weekly installments 

rather than lump sum payment of arrearages of child support and alimony 

pendente lite).

Furthermore, Mother has not claimed that she suffered any prejudice 

from the court’s actions. Essentially, Mother argues that since Father did not 

file a written petition, his failure to do so deprived her of notice that the court 

was treating Father’s oral statement as a petition to repay the overage. 

However, Mother was on notice of the repayment when the Domestic Relations 

Section ordered the repayment on November 22, 2017. Moreover, Mother 

conceded both the overpayment and the amount at the support hearing. N.T., 

Support Hearing, at 33. She thus sustained no prejudice from the oral motion 

made by Father. We therefore affirm the order of the trial court.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2018