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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 6537 

C.D.S., : IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

R.J.S., 

Appellee 

Appellant : No. 1477 WDA 2019 

Appeal from the Order Entered August 30, 2019 

in the Court of Common Pleas of Butler County 

Domestic Relations at No(s): 39846 

BEFORE: SHOGAN J., MURRAY, 3. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 14, 2020 

R.J.S. (Father) appeals from the August 30, 2019 order requiring him 

to pay child and spousal support to C.D.S. (Mother). We quash the appeal 

as it relates to the order of spousal support because that portion is 

interlocutory due to the parties' pending divorce, and affirm the order as it 

relates to child support. 

Father and Mother were married in September 2011, and separated on 

November 1, 2017. They are the parents of three children (Children), born 

in June 2013, October 2014, and July 2016. Mother has maintained primary 

physical custody of Children. A divorce action is pending in the Butler 

County Court of Common Pleas. 

* Retired Senior Judge assigned to the Superior Court. 
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On December 1, 2017, Mother filed for child and spousal support. 

Over more than a year and a half, a series of hearings and modifications to 

Father's child support obligations occurred. Prior to the instant proceeding, 

the most recent order setting forth Father's obligation was entered on 

September 5, 2018. In that order, Father's monthly net income was 

calculated to be $10,580.54 and Mother's monthly net income to be 

$5,947.65. The parties entered an agreed -upon support order, requiring 

Father to pay monthly $3,562,00 in child support and $350.00 in arrears, for 

a total of $3,912.00. Order, 9/5/2018, at 1-2. On March 26, 2019, Father 

filed the instant petition, seeking a reduction in support for various reasons 

no longer relevant. 

A support modification conference was scheduled, but prior to the 

conference, on April 12, 2019, Father was involuntarily terminated from his 

employment. Accordingly, the parties agreed to continue the support 

modification conference for 45 days and rescheduled it for June 17, 2019. 

Father represented himself at the conference. After the conference, on July 

1, 2019, the conference officer made findings as to the parties' income and 

made recommendations regarding support. Father then filed a demand for a 

de novo hearing before the trial court. 

On August 21, 2019, the trial court held a de novo hearing. Mother 

did not testify at the hearing, but the parties stipulated that her monthly net 

income was $6,027.46. N.T., 8/21/2019, at 3-4. Father provided the 

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following testimony related to his income. In 2018, Father earned over 

$180,000.00 while employed with Passavant Development Corporation. Id. 

at 30. From January 1, 2019 until April 11, 2019, Father earned $51,603.76 

in salary. Id. at 21. On April 12, 2019, Father was involuntarily terminated 

for a reason that does not appear in the record and received a payout of 

$14,513.00 for unused time off, and a severance package that included 

payment of $167,712.48 ($13,976.04 per month) over the next 12 months. 

Id. at 21, 24. 

In July 2019, Father moved from the parties' former marital home in 

Cranberry Township, Pennsylvania to be with his paramour in Lexington, 

Kentucky, and sought comparable employment and earnings to his previous 

position. Id. at 14-15. In the four months between when Father was 

terminated and the August 21, 2019 de novo hearing, Father had applied to 

only two positions with potential employers via sending a resume and cover 

letter; one application was submitted just a week prior to the hearing. Id. 

at 15. Father was planning to follow-up after the hearing via a telephone 

call with one of the potential employers. Id. 

On August 30, 2019, the trial court entered the order at issue here, 

which increased Father's child and spousal support obligations. The trial 

court determined Father's monthly net income and calculated his support 

obligations for different dates. Specifically, from March 26, 2019 until April 

12, 2019, the trial court used Father's actual earnings and accrued benefits 

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from his employment to determine his monthly net income to be 

$12,754.39; and from April 13, 2019 onward, the trial court determined 

Father's income to be what he received from his severance payment, plus it 

imputed a $15 -per -hour earning capacity until Father found employment, for 

a total of $11,542.41. Order, 8/30/2019, at 1. 

Father timely filed a notice of appeal on September 26, 2019. Both 

Father and the trial court complied with Pa.R.A.P. 1925. 

On appeal, Father raises three, albeit overlapping, issues. 

A. Whether the [t]rial [c]ourt erred as a matter of law and abused its 

discretion by imputing [] an earning capacity [to Father] for child 

and spousal support purposes that exceeds one [] full-time 

position. 

B. Whether the [t]rial [c]ourt erred as a matter of law and abused its 

discretion by imputing [] an earning capacity [to Father] that 

exceeds [Father's] earnings from his most recent employment. 

C. Whether the [t]rial [c]ourt erred as a matter of law and abused its 

discretion by entering an award for child support and spousal 

support based upon [Father's] actual earnings in addition to the 

trial court's imputation [] of an earning capacity of a full-time 

position paying [$15.00] per hour. 

Father's Brief at 8, The crux of Father's issues is his contention that the trial 

court abused its discretion in calculating his earning capacity. He argues 

that the trial court should have based his income solely on his severance 

pay, rather than his severance pay and an imputed $15 -per -hour earning 

capacity, thereby imputing "an earning capacity of a second -full time 

position" to Father. Id. at 20. 

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Before addressing Father's issue, we must first determine the 

appealability of the August 30, 2019 order. Diament v. Diament, 771 A.2d 

793, 795 (Pa. Super. 2001) ("Although the appealability of the trial court's 

support order was not raised by the parties in their briefs, we nevertheless 

will examine this question since the appealability of an order goes to the 

jurisdiction of the court and thus properly may be raised by the court sua 

sponte." Fried v. Fried, 501 A.2d 211, 212 (1985)). The order at issue is 

an allocated support order, i.e., it made separate provisions for child support 

and spousal support. During the pendency of a divorce action, "the portion 

of a trial court order attributable to child support is final and immediately 

appealable; however, the portion of an order allocated to spousal support is 

interlocutory." Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super. 2003) 

(citations omitted). Issues related to child support may be appealed 

immediately to protect the interest of the child and avoid hardship due to a 

child's immediate and continuing dependence on his or her parents for 

support and inability to draw on other sources of funds in the interim. 

Diament, 771 A.2d at 795. 

A spousal support order entered during the pendency of a divorce is 

not appealable until all claims related to the divorce action are resolved. 

Deasy v. Deasy, 730 A.2d 500, 502 (Pa. Super. 1999). This Court may 

quash an appeal if statements in the parties' appellate briefs indicate a 

divorce action is pending at the time of the appeal. Capuano, 823 A.2d at 

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999. Here, Mother indicates in her brief that the parties "are in the process 

of divorce having separated on November 1, 2017," and references Father's 

testimony "in a separate order of court under the parties' divorce caption." 

Mother's Brief at 11, 16. Second, Father stated in his brief that he and 

Mother "have a divorce action pending in the Butler County Court of 

Common Pleas." Father's Brief at 9. 

In light of the foregoing, we quash the appeal from those portions of 

the August 30, 2019 order pertaining to spousal support because those 

portions are interlocutory and unappealable, and we therefore lack 

jurisdiction to consider them. See Capuano, 823 A.2d at 998. 

Conversely, the issues related to the child support portion of the 

August 30, 2019 order are immediately appealable and properly before this 

Court. See Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super. 

1996). 

We now turn to Father's argument that the trial court's determination 

of his earning capacity was inconsistent with applicable law and not 

supported by the evidence as it relates to the award of child support. 

We begin with our well -settled standard of review in child support 

cases. 

Appellate review of support matters is governed by an abuse of 

discretion standard. 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. 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 judgment 

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exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill -will, as shown by the evidence of record[, 

then the court has abused its discretion]. The principal goal in 

child support matters is to serve the best interests of the 

children through the provision of reasonable expenses. 

J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (citation omitted). 

"[T]he amount of support to be awarded is based upon the parties' 

monthly net income." Pa.R.C.P. 1910.16-2; see also Woskob v. Woskob, 

843 A.2d 1247, 1251 (Pa. Super. 2004) ("[A] person's support obligation is 

determined primarily by the parties' actual financial resources and their 

earning capacity."). The calculation of income in this case is guided by the 

following parameters. 

(a) Monthly Gross Income. Monthly gross income is ordinarily 

based upon at least a six-month average of all of a party's 

income. The term "income" is defined by the support law, 23 

Pa.C.S.[] § 4302, and includes income from any source. 

*** 

[(d)](4) Earning Capacity. 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 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. 

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Pa.R.C.P. 1910.16-2(a), (d)(4) (emphasis added). It is the highlighted 

portion of the above quote upon which Father relies. 

Father relies upon Haselrig v. Haselrig, 840 A.2d 338 (Pa. Super. 

2003), and the cases cited therein. For a period of time, the payor in that 

case worked two full-time 40 -hour jobs, for a total of 80 hours per week, 

and his spouse argued that his earning capacity should be based on those 

two full-time 40 -hour -per -week jobs. This Court responded that many 

factors need to be considered with regard to how many hours should be 

required in determining earning capacity, but clearly it would be a rare case 

where a payor would be required to work two full-time jobs. 

Haselrig is clearly distinguishable from this case. Father is not being 

required to work 80 hours per week. Because of the unusual circumstances 

here where Father was fired with a severance package, although he is being 

paid for that full-time job, he is not performing work at that job. That is a 

far cry from Haselrig. We find no abuse of discretion in the trial court's 

imposing an earning capacity on Father. There is a reason that the rule uses 

the word "generally" in describing when the payor's earning capacity should 

not exceed the amount he could earn in one full time -position. Based on the 

foregoing, we conclude that the trial court did not abuse its discretion in 

calculating Father's earning capacity. Accordingly, we affirm the trial court's 

order as it pertains to child support. 

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Order affirmed as it pertains to child support. Appeal quashed as it 

relates to spousal support. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 7/14/2020 

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