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### -A09041-20
NON-PRECEDENTIAL 

### DECISION - SEE

### SUPERIORCOURT 

### I.O.P.

## 6537 C.D.S., : IN THE SUPERIORCOURT OF PENNSYLVANIA

v. R.J.S., Appellee



### Appellant : No. 1477 WDA 2019 Appeal

### from the Order Entered

### August 30, 2019 inthe CourtofCommon Pleas of

### ButlerCounty Domestic Relations at No(s): 39846 BEFORE: SHOGANJ., MURRAY,3. and STRASSBURGER, J.* MEMORANDUM BY STRASSBURGER, J.: 

### FILEDJULY 

### 14,

### 2020 R.J.S. 

### (Father) appeals 

### from theAugust 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 relatesto child 

### support. Fatherand 

### Motherwere married in 

### September2011, and separated on November 1, 2017. They are 

### the parents of

### three children 

### (Children), born inJune 2013, October 2014, and July2016. Mother has 

### maintained 

### primary physical 

### custody 

### of Children. A 

### divorce action is pending in the 

### Butler County Court ofCommon Pleas.

* Retired SeniorJudge assigned to 

### the SuperiorCourt.J

### -A09041-20
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. Priorto 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 Fatherto pay 

### monthly$3,562,00 in child 

### supportand 

### $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

### forvarious reasons
no longer relevant. A 

### support modification conference was scheduled, but 

### prior to the conference, on April 12, 

### 2019, Father was 

### involuntarily terminatedfrom 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. 

### Aftertheconference, on July 1, 2019, the conference 

### officer made 

### findings as to the 

### parties' income and made 

### recommendations regarding support. Fatherthenfiled a demand

### for a de novohearing beforethe

### trial court. On 

### August 21, 2019, the 

### trial court held a de novo hearing. Mother did not

### testifyatthe 

### hearing, but

### the partiesstipulated 

### that her 

### monthly net income was 

### $6,027.46. N.T., 

### 8/21/2019, at 3-4. Father provided the 

## -2

### 3-A09041-20 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, Fatherearned 

### $51,603.76 in salary. 

### Id. at21. On April 12, 2019, Father was 

### involuntarilyterminated 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) overthe 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

### ofthepotential 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 

### fordifferent dates. Specifically, 

### from March 26, 2019 

### until April 12, 

### 2019, the

### trial court used Father's actual 

### earnings and accrued 

### benefits

3

### 3-A09041-20
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 incometo be 

### what he received

### from his severance 

### payment, plus it imputed a $15

### -per-hour earning capacity until Fatherfound 

### 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 andthe

### trial courtcomplied with Pa.R.A.P. 1925. On appeal, Father raises

### three,albeitoverlapping, 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]ourterred 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 Briefat 8, The 

### crux

### of Father's issues is his

### contention 

### thatthetrial 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.



## -4J

### -A09041-20
Before addressing Father's issue, we 

### must 

### first determine the 

### appealabilityofthe 

### August 30, 2019 order. 

### Diamentv. 

### Diament, 771 A.2d 793, 795 (Pa. Super. 

### 2001) ("Although the 

### appealability ofthe 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." 

### Friedv. 

### Fried, 501 A.2d 211, 212 

### (1985)). The 

### order at issue is
an allocated 

### supportorder, 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 

## -5

### 3-A09041-20
999. Here, Mother indicates in her 

### brief

### thatthe parties

### "are in the process ofdivorce 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 Briefat 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 bytheevidence as it relates tothe awardofchild 

### support. We begin 

### with our well

### -settled standard of review in child 

### support
cases.

### Appellate review 

### ofsupport matters is governed by an abuse 

### of discretion standard. When 

### evaluating a 

### supportorder, this Court mayonly reversethe

### trial court's 

### determination where the 

### order cannot be sustained on anyvalid 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, orthe 

### judgment

- 6 -

### 3-A09041-20
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 reasonableexpenses. 

### J.P.D. v. 

### W.E.D., 114A.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

### alsoWoskobv. 

### 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 incomefrom anysource. 

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

### Ifthe 

### trier offact determines 

### that a 

### partyto a 

### supportaction has

### willfully failedto obtain 

### ormaintain 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 muststate the reasons 

### for the assessment in 

### writing or on 

### the record. 

### Generally, 

### the

## trier of

### fact should 

### not impute an 

### earning capacity

### that is 

### greaterthanthe amountthe 

### partywould 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 

### effortsto find 

### employment.
7J

### -A09041-20

Pa.R.C.P. 

### 1910.16-2(a), 

### (d)(4) (emphasis added). 

### It is 

### the highlighted portion ofthe abovequote 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 

### oftime, the payor in 

### that
case 

### worked two 

### full-time 40

### -hourjobs, 

### 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 itwould be a rare case where a 

### payorwould be 

### required to

### worktwo

### full-timejobs. 

### Haselrig is 

### clearly distinguishable from this case. Father is not being required to

### work 80 hours perweek. Because of

### the unusual 

### circumstances here where Fatherwas

### fired with a severance package,although he is being paid 

### forthat full-timejob, he is not 

### performing work at

### thatjob. 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 

### thatthe rule uses the word 

### "generally" in describing when 

### the payor's earning capacity should notexceedthe 

### amount hecould earn in onefull 

### time-position. Based onthe 

### foregoing, we conclude 

### that the 

### trial court did not abuse its 

### discretion in calculating Father'searning capacity. Accordingly, we 

### affirm thetrial court's orderas it pertains to child 

### support.


## -8J

### -A09041-20
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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