J-S08013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 M.P. IN THE SUPERIOR COURT OF PENNSYLVANIA

v. T.M. Appellant No. 1037 WDA 2015

Appeal from the Order dated June 11, 2015 In the Court of Common Pleas of Lawrence County Domestic Relations at No: Case No. 420 of 2006, D.R . PACSES No. 607108347
BEFORE: STABILE, DUBOW, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED MAY 20, 2016 In this child support matter, Appellant T.M. (“Fat her”) appeals from the June 11, 2015 order of the Court of Common Plea s of Lawrence County (“trial court”), which, inter alia , assessed M.P. (“Mother”) with a $1206.19 net monthly income, Father with a $2,363.50 net mon thly income, and established Father’s monthly support obligations fo r their minor daughter (“Child”) (born in October 2002), as $760.48, inclu ding $224.84 in private school tuition, plus arrears. 1 Upon review, we affirm in part, vacate in part and remand.

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1 Because this case affects a minor child, we have a bbreviated the parties’ names.J-S08013-16

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The facts and procedural history underlying this c ase are undisputed. On February 4, 2015, Mother filed a “Petition for M odification of an Existing Support Order” for Child, claiming only a change in her income. Mother sought to modify the trial court’s January 15, 2013 order that assessed her with a net monthly earning capacity of $2,017.68, F ather with a net monthly income of $2,433.93, and set Father’s child support obligations at $630.59, which included a monthly payment of $137.20 for pri vate school tuition. On May 5, 2015, the trial court held a de novo hearing on Mother’s modification petition, at which Mother argued that her actual earnings did not match the earning capacity assessed to her by t he trial court in the January 15, 2013 order. Mother argued that she ear ned less because she worked fewer than 40 hours per week. Mother testif ied that she worked as a therapeutic staff specialist for Comprehensive Ch ildren and Family Services, providing one-on-one care to children for purposes of integrating them into various settings, including their school and their communities. N.T. Hearing, 5/5/15, at 7-8. Mother testified tha t she earned $12 per hour and worked about 26.25 hours per week with three cl ients. Id. at 9, 15. She testified that she picked up more hours when sh e filled in for other specialists. Id. at 10. Mother was paid bi-weekly. Id. at 43. Mother claimed that it was difficult for her to get more h ours because of scheduling
issues. Id. at 9-10. Mother testified that her income would b e reduced in the summer when school was not in session. Id. at 12. Mother further testified that she had signed a non-compete agreeme nt, which barred herJ-S08013-16

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from seeking other employment in the mental health field. Id. at 20. Finally, Mother sought an increase in Father’s cont ribution towards Child’s schooling, because tuition for private school had i ncreased. Mother testified that tuition for the private school was $4,400.00 p er year. Id. at 22. On cross-examination, Mother acknowledged that she was not seeking other employment to supplement her income. Id. at 31. Mother acknowledged that she had no physical incapacities that would limit her employment options. Id. at 40. Mother also acknowledged that the tuition for a second child at the private school was reduce d by $650.00 and was thus $3,750.00 per year. Id. at 37. Following the hearing, the trial court assessed Mother with a $1206.19 net monthly income, Father with a $2,363.50 net monthly income, established Father’s monthly support obligations for Child as $760.48, including $224.84 in private school tuition, plus arrears, and set Father’s and Mother’s liabili ty for unreimbursed medical expenses in excess of $250.00 for Child at 66.21% a nd 33.79%, respectively. Father timely appealed to this Court

. Upon the trial court’s direction, Father filed a Pa .R.A.P. 1925(b) statement of errors complained of on appeal, raisin g four assertions of error. First, Father argued that the trial court’s finding that Mother’s net monthly income was $1206.19 was unsupported by the record. Second, Father argued that the trial court abused its discretion i n determining that Mother established a substantial change in circumstances w arranting a modification of her support obligations. In this regard, Father claimed that the trial courtJ-S08013-16

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failed to render any findings necessary to justify a deviation from Mother’s assessed earning capacity of $2,017.68. Third, Fat her argued that the trial court abused its discretion in calculating his tuit ion payment for Child’s private school, because the court did not take into account the amount of the discount offered to a second child. Fourth, Fa ther argued that the trial court erred in calculating the percentage of each p arent’s liability for Child’s unreimbursed medical expenses. In response, the tri al court issued a Pa.R.A.P. 1925(a) opinion, addressing Father’s asse rtions of error and concluding that they do not warrant any relief. Fa ther timely appealed to this Court. On appeal, Father repeats these four issues for ou r review. 2
The standard of review of a trial court’s decision in a support case is well-settled: When evaluating a support order, this Court may onl y reverse the trial court’s determination where the order can not be sustained on any valid ground. We will not interfe re 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 ju dgment; if, in reaching a conclusion, the court overrides or misap plies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partialit y, prejudice, bias or ill will, discretion has been abused. In a ddition, we note that the duty to support one’s child is absolute, a nd the purpose of child support is to promote the child’s best int erests.

____________________________________________ 2 To the extent Father argues that the trial court e rred in failing to order interim relief to Father, we decline to address thi s argument because it was not raised before the trial court or in Father’s Ru le 1925(b) statement. See Pa.R.A.P. 302(a) (“Issues not raised in the lower c ourt are waived and cannot be raised for the first time on appeal.”).J-S08013-16

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Kimock v. Jones , 47 A.3d 850, 853-54 (Pa. Super. 2012) (citations omitted). Father first contends that the trial court’s findi ng regarding Mother’s net monthly income was not supported by the record. We disagree. The trial court based its calculation of Mother’s net m onthly income on Mother’s uncontroverted testimony that she worked a total of 26.5 hours per week at a rate of $12.00 per hour. As the trial court expl ained: [Mother’s] average gross monthly earning should be calculated by multiplying the sum of 26.5 hours per week times 4.3 weeks per month, resulting in [Mother] working 113.95 hou rs per month. At $12.00 per hour, [Mother’s] average gros s monthly wages total $1,367.40. Following application of th e standard tax rates to the average gross monthly earning of $1,36 7.40, the [trial court] finds that [Mother’s] average net ear nings are $1,206.19 per month. Trial Court Opinion, 4/14/16, at 3. Accordingly, F ather is not due any relief on this issue. Father next contends that the trial court abused it s discretion in modifying Mother’s support obligations because Moth er failed to establish a change in circumstances sufficient to justify a dev iation from her assessed earning capacity of $2017.68. It is settled that: [a]n award of support, once in effect, may be modif ied via petition at any time, provided that the petitioning party demonstrates a material and substantial change in their circumstances warranting a modification. See 23 Pa.C.S. § 4352(a); see also Pa.R.C.P. No. 1910.19. The burden of demonstrating a “material and substantial change” r ests with the moving party, and the determination of whether such change has occurred in the circumstances of the moving par ty rests within the trial court’s discretion.J-S08013-16

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Summers v. Summers , 35 A.3d 786, 789 (Pa. Super. 2012) (citations omitted) (emphasis added). A change in circumstanc es is considered substantial so as to warrant a modification when th e change is “either irreversible or indefinite.” R.C. v. J.S. , 957 A.2d 759, 763 (Pa. Super. 2008); see Crawford v. Crawford , 633 A.2d 155, 164 (Pa. Super. 1993) (noting that the change in circumstance must be per manent). “Where a party assumes a lower paying job or willfully fai ls to obtain appropriate employment, the support obligation is determined by his [or her] assessed earning capacity.” Baehr v. Baehr , 889 A.2d 1240, 1245 (Pa. Super. 2005 (citation omitted). Stated differently, “[i]t is s ettled law that a party cannot voluntarily reduce his earnings in an attempt to ci rcumvent his support obligation.” Woskob v. Woskob , 843 A.2d 1247, 1254 (Pa. Super. 2004). Instantly, the trial court based its decision to modify Mother’s support obligations on the fact that she was unable to secu re more hours at her current job and that she had a non-compete agreemen t with her employer prohibiting her from seeking other employment in th e same field. This, however, is insufficient under the law to establish a material and substantial change in circumstance. As our review of the heari ng transcript reveals, Mother testified only about her existing employment situation without putting it into context vis-à-vis her circumstances at the time of the January 15, 2013 support order. Mother did not testify whe ther she worked at the time of the support order on January 15, 2013 or, i f she did work, what her job was or entailed. Similarly, Mother did not tes tify about whether herJ-S08013-16

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existing job was different from the job she might h ave had in January 2013. If she switched employment, Mother did not provide a reason for doing so. Assuming Mother’s existing job was different, Mothe r did not provide any evidence to indicate why she chose to accept the cu rrent job, earnings from which fell below her earning capacity, or why she s igned the non-compete agreement, a copy of which was not introduced or ad mitted into evidence. Further, the record is bereft of any indication tha t Mother’s existing situation was triggered by disability, illness or other compe lling reason beyond her control. We also are unable to tell from the recor d whether Mother is attempting to re-litigate the January 15, 2013 supp ort order, or if she truly is arguing that her circumstances have changed sinc e that time. Because Mother failed to develop adequately a record to est ablish that her changed circumstances were material, substantial and not vo luntary, the trial court abused its discretion in modifying her support obli gations. Given our conclusion that the trial court abused it s discretion in modifying Mother’s support obligations, we are unab le to address Father’s third and fourth issues on appeal and, as a result, direct the trial court to recalculate the parents’ tuition obligations and liab ility for unreimbursed medical expenses. In sum, we affirm the trial court order to the ext ent it properly calculated Mother’s actual monthly net earnings, va cate it to the extent it modified Mother’s support obligations and remand fo r further proceedings consistent with this Memorandum.J-S08013-16

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Affirmed in part. Vacated in part. Case remanded . Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/20/2016