J-S40001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

J.K.A., IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellant 

v.

M.B.Y., 

 Appellee No. 2298 MDA 2013 

Appeal from the Order Dated November 27, 2013 

In the Court of Common Pleas of Lancaster County 

Domestic Relations at No(s): 2005-00046 

PACSES NO. 152103633 

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 23, 2014 

 J.K.A. (Mother) appeals from the order dated November 27, 2013, and 

entered on December 6, 2013, that directed M.B.Y. (Father) to pay to 

Mother support for the parties’ child, M.B.A. (born in July of 2001). After 

review, we affirm. 

Mother’s stated issue in her brief reads as follows: “Did the lower 

court err in determining [Father’s] earning capacity?” Mother’s brief at 4. 

Specifically, her arguments are directed at the trial court’s alleged errors in 

“calculating Father’s income when [the court] did not take into account 

[Father’s] failure to mitigate lost income, abandonment of the child and 

income derived from all sources.” Id. at 10. When addressing such issues, 

we are guided by the following: 
J-S40001-14

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[T]his 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. 

Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations 

omitted). Furthermore, this Court: 

must accept findings of the trial court that are 

supported by competent evidence of record, as our 

role does not include making independent factual 

determinations. In addition, with regard to issues of 

credibility and weight of the evidence, this Court 

must defer to the trial judge who presided over the 

proceedings and thus viewed the witnesses first 

hand. 

Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008). 

“When the trial court sits as fact finder, the weight to be 

assigned the testimony of the witnesses is within its exclusive 

province, as are credibility determinations, [and] the court is 

free to choose to believe all, part, or none of the evidence 

presented.” Stokes v. Gary Barbera Enterprises, Inc., 783 

A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723, 

797 A.2d 915 (Pa. 2002). “[T]his Court is not free to usurp the 

trial court's duty as the finder of fact.” Isralsky v. Isralsky, 

824 A.2d 1178, 1190 (Pa. Super. 2003) (quoting Nemoto v. 

Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1219 (Pa. Super. 

1993)). 

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009). 

 We have reviewed the certified record, the briefs of the parties, the 

applicable law, and the thorough opinion authored by the Honorable Leslie 
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Gorbey of the Court of Common Pleas of Lancaster County, dated February 

25, 2014. We conclude that Judge Gorbey’s well-reasoned opinion properly 

disposes of the issue(s) that have been raised by Mother. Accordingly, we 

adopt Judge Gorbey’s opinion as our own and affirm the support order on 

that basis. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014 
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

J. j(. tj-. . DOMESTIC RELATIONS DIVISION 

Plaintiff 

Docket No. 2005-00046 

vs. 

i'I\ . 13' . y. ...... PACSES Case No. 1521036i~ <;:3 l.::; :-. ..., Jr' ".:..::1" co rn .~ ~ -'"\ 

SUPER. CT. NO.: 2298 MDA 2Q13 ~ ;l~ 

;:: 01 

'-'.- S.C: 8 :;...--.. '.;J 

Defendant 

--:., :::;: 

:/; . BY: LESLIE GORBEY, J. 

ORDERSU'R APPEAL 

" .- Procedural history 

;J.~.It •. 

This support matter was Initiated on January 6, 2005 when Plaintiff tll __ lIInn. '. . . . . m.~·Y 

,. 7 (Mother) filed a supp.ort complaint against Defendant __ •••• 

. m,~.~... 

(Father) fQr support of one child, , born '/In July. 2001. Over the 

intervening years, Mother filed a number of petitions for modification of support and the 

order was either modified or not modified by the court pursuant to the information 

presented. The instant Order resulted from the filing of a petition to modify On July 19, 

2013. 

A conference on the instant petition was held August 15, 2013 and the 

recommended Order was issued by the court on September 12, 2013, directing that 

Defendant was to pay $390.73 monthly in child support. The order contained an upward 

deviation. Mother appealed this decision and a hearing de novo was held before the 

Court on November 27,2013. The Court entered a two tier order sustaining mother's 

appeal, directing that the recommended order would be in effect through December 5, 

2013. On December 6, 2013, a new order would become effective, obligating 

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Defendant to pay $309.23 monthly for the support of •••••• This order was 

calculated pursuant to the Guidelines and was based on earning capacities of $8.25/hr 

for 25 hours per week for Plaintiff ($790.54 monthly net) and income for the defendant 

of $400 per week gross ($1301.67 monthly !jet.) 

On December 26, 2013, Mother filed an appeal to the Pennsylvania Superior 

Court, pursuant to which appeal this opinion sur appeal is being prepared. 

Factual history 

('11:5,11. 

Mother and Father are the parents'of , age 13. (N:T. 8) 

Father exercises none of his custodial rights to the child, and hasn't seen him in three 

years. (N.T. 11) Mother also has two other YOl,lnger children, but they have a different 

father, who pays child support to Mother. (N.T. 10) At the time of the hearing, Mother 

had no employment income. She had last been employed in 2007 at J. C. Penney as a 

salesperson for a period of five to six months, making an hourly wage of $8.25. (N.T. 

12). She left the job because she had no one to care for her youngest two children. 

She has recently been looking for work, because her children are now all in school. 

She is a high school graduate. (N.T. 9-11) Mother agreed that she should be given an 

earning capacity of $8.25 per hour. (N.T. 15) 

Father worked for Jack Trier Moving for eight years at a seasonal job, getting 

unemployment income in the off-season. (N.T. 23) Extrapolating over a year, he made 

$11.75 per hour, averaging thirty hours per week when he worked. He left the position 

in March of 2013 because new management had taken away certain benefits, reduced 

his insurance, and had increased the amount of travel he would have to do, but offered 

(3) 2 
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him no increase in pay. (N.T. 20) Between March of 2013 and the conference, he 

engaged in three episodes of temporary eniployment cleaning debris, for which he 

received between $600 and $700. (N.T. 24) Since October 21,2013, he has been the 

sole employee of George Grove Delivery Service, delivering new furniture. (N.T. 21) He 

works between thirty and forty hours per week for $10 per hour. (N.T. 19) He did not go 

beyond tenth grade. He has recently married. (N.T. 25, 29) 

Issue 

Whether a child support figure derived from the Guidelines is appropriate in a 

situation where Father has quit his job paying $11.75 per hour for an average of thirty 

h.ours per week and repl,aced it with another job paying $10 per hour for thirty to forty 

hours per week and when Father has spent no custodial time whatsoever with the child 

for a period of three years. 

Analysis 

As a general rule, child support Is to be calculated pursuant to the Support 

Guidelines authorized by statute and promulgated as a Rule of Civil Procedure by the 

Pennsylvania Supreme Court. 23 Pa.C.SA 4322(a); Pa.R.C.P. 1910.16. There is a 

presumption that the amount is correct, but that presumptlon can be rebutted, alloWing 

. the Court to deviate from the Guideline amount if it finds that the application of the 

Guidelines would be inappropriate or unjust in a particular case. 23 Pa.C.SA 4322(b); 

Pa. R.C.P. 1910.16-5. If the obligor has employment which provides him or her with a 

regular monthly income, the support obligation can be determined according to the 

applicable State Guidelines. If there is no regular income, then the Court is charged 

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with the task of determining a reasQnable earning capacity fDr the unemplQyed Dr 

underemplDyed indIvidual .. An earning capacity is defined "nQt as an amDunt which the· 

persDn cDuld theoretically earn, but thai amDunt which the persQn cDuld realistically 

earn under the circumstances, cDnsidering his Dr her age, health, mental and physkal 

cDndition and training." Strawn v. Strawn, 664 A.2d 129 (Pa. Super. 1995) 

At the time .of the hearing in this malter, Father was emplQyed as a delivery 

persDn .I Dr a cQmparJY which delivered new furniture tQ consumers. H,is rate .of pay was 

$10.00·p'er hour Dr $400 per week grQSs. He had been making $11.75 per hQur at Jack 

TrierMDving which he left in March .of 2013 when new management changed his 

benefits and his job descriptiQn tQ his disadvantage. Between March .of 2013 and the' 

cQnference, he had made additiDnal mDney in the amDunt .of $600 tQ $700 in return fQr 

three instances .of cleaning up debris. Father has nQ educatiDn past tenth grade. 

MDther's 1925(b) statement cDntains a number .of cDmplaints conceming 

Father's emplDyment. She complains first that he left his emplDyment at which he was 

making a higher wage and failed tD take an apprepriate replacement jeb. Mether alse 

believes that Father ShDUld be wDrking mere heurs a week, should have mitigated his 

less .of income caused by his voluntary quit and did net make any reasDnable effert te 

find werk. The CQurt believes that Father's quit was reasQnable in light .of a 

disadvantageeus change te his benefits and his duties. At Trier, Father was wDrking an 

average .of 30 h.ours per week when he is w.orking. At his current j.ob, he is w.orking 

between 30 and 40 hrs a week. Additi.onally, he d.oes n.ot get laid .off in the Dff-seasen, 

The C.ourt has directly addressed M.other's pr.oblem c.oncerning h.ours in assessing 

Father fer the high part .of his h.ourly estimate - 40 hDUrs per week-- believing it tQ be o 4 .. 
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reasonable for Father to have ac'cepted a job at a lower hourly rate for more hours 

rather than continue with unemployment until he finds a job that will pay him the money 

that Mother believes to be appropriate. Therefore, the Court does not accept Mother's 

arguments; Father quite clearly sought a new job and through that search mitigated 

any loss occasioned by the loss of his Trier income. The Court thus finds that it Is 

unnecessary to attribute a higher earning capacity to Father as Mother suggests and 

finds that Father's monthly income is what he now earns at Grove Delivery for a forty . . -. .".. .' . 

hour week. 

Mother complains next that the Court failed to consider that Father takes no 

lI1;B,)4 •. 

custodial time with' I Sf thereby increasing her financial obligation for the child. 

The Explanatory Comments·to Pennsylvania Rule of Civil Procedure 1910.6-4 assert 

that if the obligor spends little or no time with the child and therefore incurs no 

expenditures that such time would entail, the Court should consider an upward 

deviation in support. The conference officer did indeed recommend an upward 

deviation. The Court has considered this possibility and has decided that no upward 

deviation is to be included .. Mother is receiving support for her other two children and is 

actively looking for work which will provide her with additional income. While Father's 

obligation is calculated using a forty hour work week, Father's testimony is that he 

worked between thirty and forty hours. Should he experience a shorter week than forty 

hours, his net income would be reduced for that week, and an upward deviation would 

be unjust. There are no other variables in the matter which commend this idea to the 

Court. The Guideline figure will therefore be utilized as the appropriate amount. 
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Mother also points out, with some justification, that Father's income should 

... include all moneys he received from all sources other than his employment. The Court 

understands that she is referring to the $600 to $700 that Father earned from a 

temporary job when he was unemployed. The Court agrees with Mother in theory, but 

. points out that for the purposes of this de.cision; those earnings, when extrapolated over 

his entire seven months of unemployment amounts to at most approximately $100 per 

month, a' de minimus amount in this support calculation,. That being said, however, the 

Court's order under appeal permitted the highe'r support obligation setout in the 

recommended order to remain in effect from July 19, 2013 until December 6,2013, 

thus giving Mother an additional $81.50 per month for more than four months, 

effectively providing her with the major part of Father's.extra income. 

Conclusion 

Based on the above, the Court dismisses Mother's appeal and affirms al\ 

prOVisions of its order of November 27, 2013, 

DATED: February 24,2014 

ATTEST: 

COPIES TO: 

Michael V. Marinaro, Esquire 

Lorraine Russell Hagy, Esquire 

BYTH~ 

LESLIE GORBEY, JUDGE