J-S55019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH J. COTELLESE III IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
LISA M. COTELLESE
Appellee No. 777 EDA 2018
Appeal from the Order Entered January 26, 2018 In the Court of Common Pleas of Bucks County Domestic Relations at No: 2017 DR 1807 PACSES No. 684116808
JOSEPH J. COTELLESE III IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
Appellee No. 778 EDA 2018
Appeal from the Order Entered January 26, 2018 In the Court of Common Pleas of Bucks County Domestic Relations at No: 2012 DR 00320 PACSES No. 201113141
BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2018 J-S55019-18
Appellant, Joseph J. Cotellese III (“Husband”), appeals1 from the trial
court’s January 26, 2018 support order. We affirm.
The trial court recited the pertinent facts and procedural history in its
Pa.R.A.P. 1925(a) opinion:
The parties have a long history of support litigation over the last six (6) years. On March 22, 2012, Lisa M. Cotellese [(“Wife”)] filed a complaint for spousal and child support against [Husband] for the parties’ children [(“Children”)]. After appearing at a conference on May 4, 2012, an interim order was entered into the record setting [Husband’s] monthly child support payments[.]
[…]
On August 16, 2017, [Husband] filed [a] petition for modification seeking a decrease in the monthly child support payments due to an alleged change in his employment status. On September 14, 2017, the parties consented to terminate the existing support order. The September 14, 2017 order recognized an overpayment in the total amount of [$4,642.24], representing [$4,365.24] in total case balance overpayment and [$270.00] which [Wife] owed [Husband] for her health insurance contribution. [Husband] thereafter filed his “petition to collect support overpayment in terminated case[.]”
[Husband’s] petition was followed by [Wife’s] filing of a new petition for child support. […]
A hearing was held on January 25, 2018. The court heard testimony from [Wife], [Husband], and Kathleen Murray, the HR generalist from [Husband’s] former employer. The court recited on the record that as established at the December 7, 2017 conference, [Husband’s] net monthly income was determined by the officer to be [$5,035.52] based on his gross monthly income ____________________________________________
1 Husband filed his appeal more than thirty days after entry of the order, but the docket fails to reflect that Husband received notice of the entry of the order pursuant to Pa.R.C.P. No. 236. Rule 108(b) of the Rules of Appellate Procedure provides that the date of entry of an order for purposes of appeal is the date on which the local clerk sends the Rule 236 notice. Pa.R.A.P. 108(b). We will therefore treat this appeal as timely.
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of [$6,500.00]. The court also placed on the record the finding at the conference that [Wife’s] net monthly income was [$4,100.00] based on annual gross income of [$67,000.00]. The parties also stipulated that they have equal physical custody of the Children[,] and Wife pays the Children’s health insurance at a monthly cost of [$94.90].
[Husband] testified at the hearing that he was employed with AWeber until August 15, 2017 when his employment terminated. [Husband] further testified that his biweekly paycheck was [$6,388.47]. [Husband] agreed that his gross annual income for 2017 was [$166,000.00]. [Husband] testified that following his termination from AWeber he worked eight (8) hours per week as a consultant for a company called LUXTECH which he obtained, through a firm called Trajectify. [Husband] testified he is a 1099 employee for the consulting job, receiving monthly gross income of [$5,200.00] per the consulting agreement with Trajectify. [Husband] stated that per the consulting agreement, Trajectify would receive twenty percent (20%) and he received eight percent (80%) of the consulting client payments and that such agreement would terminate twelve (12) months from November 2017. [Husband] testified that he received additional income in the amount of [$99.00] in 2017 from working with clients on his own side project known as ‘Sharey,’ an online marketing tool for social media marketing.
[Husband] testified that as of the time of the hearing, he was working with Trajectify contracts for two (2) clients, LUXTECH and Club OS, and was also working with this second client through Sharey. [Husband] further explained to the court how Sharey was developed and how it works. The record before this court established that [Husband] started his Sharey project prior to his employment termination with AWeber and that [Husband] had to shut down Sharey for a period of time at the request of AWeber.
Trial Court Opinion, 5/2/18 at 1-5 (record citations and some capitalization
omitted).
The trial court assigned Husband an earning capacity of $82,091.15,
concluding that Husband was capable of working more than eight hours per
week, and that Husband was making insufficient efforts to obtain full-time
-3- J-S55019-18
employment. The trial court also ordered Husband’s $4,642.24 overpayment
to Wife to be liquidated in accord with Pa.R.C.P. No. 1910.19(g)(1).2
“The amount of a support order is largely within the discretion of the
trial court, whose judgment should not be disturbed on appeal absent a clear
abuse of discretion.” Portugal v. Portugal, 798 A.2d 246, 249 (Pa. Super.
2002). A parent’s child support duty is absolute, and the goal is to promote
the children’s best interests. Samii v. Samii, 847 A.2d 691, 694 (Pa. Super.
2004). Further,
(1) Voluntary Reduction of Income. When either party voluntarily assumes a lower paying job, quits a job, leaves employment, changes occupations or changes employment status to pursue an education, or is fired for cause, there generally will be no effect on the support obligation.
(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
____________________________________________
2 That Rule provides:
If there is an overpayment in an amount in excess of two months of the monthly support obligation and a charging order remains in effect, after notice to the parties as set forth below, the domestic relations section shall reduce the charging order by 20% or an amount sufficient to retire the overpayment by the time the charging order is terminated.
Pa.R.C.P. No. 1910.19(g)(1).
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be assessed, the trier of fact must state the reasons for the assessment in writing or on the record.
Pa.R.C.P. No. 1910.16-2(d)(4).
Instantly, the trial court found that Husband failed to seek full time
employment after his termination from AWeber. Trial Court Opinion, 5/2/18,
at 9-10. Instead, he worked approximately eight hours per week as a
consultant. Father testified that he had been reaching out to his network, but
that he had not met with any recruiters or sent out any resumes in an attempt
to procure full time employment. N.T. Hearing, 1/25/18, at 51-52.
The trial court reasoned:
It is this court’s determination from examining the record, assessing the witness(es) and considering the evidence and testimony presented that [Husband] possesses the availability, necessary physical health conditions, work experience, intelligence, mental ability, job skills and employment history to secure employment more suitable to an earning capacity as assessed by this court, and not the lower amount he currently derives from his eight (8) hours per week consulting work. [Husband] has not shown any effort to actively secure full-time employment. [Husband] admitted he did not complete any job applications, did not have any job interviews and was not working with any headhunters.
Trial Court Opinion, 5/2/18, at 11. Furthermore, the record indicates that the
trial court chose to liquidate Husband’s overpayment pursuant to
1910.19(g)(1) because a charging order is presently in effect, despite the
termination of a prior support order.
We have reviewed the parties’ briefs, the applicable law, the record, and
the trial court’s opinion. We conclude that the trial court’s May 2, 2018 opinion
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accurately addresses Husband’s assertions of error. We affirm the order based
on the reasoning set forth in the trial court’s opinion, and we direct that a copy
of that opinion be filed along with this memorandum.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/30/18
-6- Circulated 10/31/2018 04:14 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION
LISA M. COTELLESE No. 2012-DR-00320
PACSES: 201113141 v. 778 EDA2018
JOSEPH J. COTELLESE, III CONSOLIDATED
JOSEPH J. COTELLESE, III No. 2017-DR-01807
PACSES: 684116808 v. 777 EDA2018
LISA M. COTELLESE CONSOLIDATED
OPINION
Appellant, Joseph]. Cotellese, III ("Father"), appeals to Pennsylvania Superior Court from
the Support Orders entered by this Court on January 26, 2018 establishing monthly payments for the
support of the parties' two (2) children. After review of these matters, the Superior Court
consolidated the appeals. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), we now file
this Opinion in the above-captioned matters in support of the Court's ruling.
I. BACKGROUND
The parties have a long history of support litigation over the last six (6) years. On March 22,
2012, Lisa M. Cotellese ("Mother") filed a Complaint for Spousal and Child Support against Joseph J.
Cotellese ("Father") for the parties' children A.C. (date of birth: November 1, 2003) ("Child 1") and
A.C. (date of birth: June 2, 2006) ("Child 2") (hereinafter collectively "Children"). After appearing for a conference on May 4, 2012, an Interim Order was entered into the record setting Father's
monthly Child Support payments at One Thousand Six Hundred Eighteen Dollars ($1,618.00). The
Order also indicated that as of the date of the hearing, Father owed Three Thousand Four Hundred
Forty-Nine Dollars and Twelve Cents ($3,449.12) in arrears which was "due in full IM.MEDIATELY."
In order to satisfy the monthly payments, multiple wage attachments were issued to Father's then
employer. On June 15, 2012, the parties appeared for a hearing before the Honorable Alan M.
Rubenstein. Judge Rubenstein signed a final Order setting Father's monthly payments for the support
of Mother and the Children at Two Thousand Six Hundred Forty-Three Dollars ($2,643.00), allocated
at One Thousand Four Hundred Seventy-Five Dollars ($1,475.00) for Child Support and One
Thousand One Hundred Sixty-Eight Dollars ($1,168.00) for Spousal Support.
On September 25, 2012, Mother petitioned the Court for a modification of the existing
Support Order requesting an increase in the monthly payments based on her new employment at a
salary less than the earning capacity previously assigned to her several months earlier. The parties
appeared for a second hearing on January 22, 2013 and reached an agreement which was entered as
an Order of Court. According to the January 22, 2013 Order, Father was to pay monthly Child and
Spousal Support in the amount of Two Thousand Five Hundred Seventy-Nine Dollars ($2,579.00).
Several months later, Father filed a Petition for Modification of that Order on May 7, 2013. In the
Petition, Father requested a decrease due to circumstances resulting in a reduction of his income. In
the June 25, 2013 Order, the Court entered the third Support Order in this case finding Father's
monthly net income had decreased to Two Thousand Two Hundred Seventy-Eight Dollars and Fifty-
Three Cents ($2,278.53) and therefore a reduction in Child and Spousal Support to the amount of
Five Hundred Ninety-Four Dollars ($594.00) was ordered. Father was further ordered to pay the
prior arrears of Two Thousand Six Hundred Seventy Dollars and Twenty-Two Cents ($2,670.22)
immediately.
2 Several months later, on September 20, 2013, Mother filed a Petition for Modification
requesting reinstatement of Spousal Support and seeking an increase in the monthly Child Support
payments due to Father's improved employment status. A modified Order was entered on October
30, 2013 assessing Father's monthly net income at Eight Thousand Two Hundred Sixty Dollars and
Thirteen Cents ($8,260.13), and ordering Father to pay monthly Child and Spousal Support in the
amount of Two Thousand Nine Hundred Fourteen Dollars ($2,914.00) and arrears set at Three
Thousand Fifteen Dollars and Eighty-Five Cents ($3,015.85) to be paid immediately.
On February 28, 2014, the Court held its third hearing in less than a year and issued a final
Order setting Father's monthly Child and Spousal Support payments at Two Thousand Six Hundred
Forty-Nine Dollars ($2,649.00) and to pay monthly arrears at the rate of ten percent (10%), or Two
Hundred Sixty-Five ($265.00). Subsequently, on April 21, 2016, the Court issued an Order increasing
the monthly arrears payment to Five Hundred Thirty Dollars ($530.00) and on January 17, 2017, the
Court issued an Order terminating Spousal Support per the Property Settlement Agreement signed by
the parties on December 14, 2016.
On August 16, 2017, Father filed another Petition for Modification seeking a decrease in the
monthly Child Support payments due to an alleged change in his employment status. On September
14, 2017, the parties consented to terminate the existing Support Order. The September 14, 2017
Order recognized an overpayment in the total amount of Four Thousand Six Hundred Forty-Two
Dollars and Twenty-Four Cents ($4,642.24), representing Four Thousand Three Hundred Sixty-Five
Dollars and Twenty-Four Cents ($4,365.24) in total case balance overpayment and Two Hundred
Seventy-Seven Dollars ($270.00) which Mother owed Father for her health insurance contribution.
Father thereafter filed his "Petition to Collect Support Overpayment in Terminated Case" and a new
3 docket number of 2017-DR-01807 was issued for that Petition. Father's case for overpayment
collection was consolidated with the original docket number 2012-DR-00320.
Father's petition was followed by Mother's filing of a new Petition for Child Support. A
review conference was held on December 7, 2017 before the assigned Domestic Relations Officer
with both parties present and represented by legal counsel. �-\n agreement could not be reached based
on the income information provided and the matter was thereafter scheduled for a hearing before this
Court on january 25, 2018. Following that conference, Mother filed a Petition to Reinstate the Child
Support Order against Father under docket number 2012-DR-00320.
A hearing was held on January 25, 2018. The Court heard testimony from Mother, Father,
and Kathleen Murley, the HR generalist from Father's former employer, AWeber Systems, Inc.
("A Weber"). The Court recited on the record that as established at the December 7, 2017 conference,
Father's net monthly income was determined by the officer to be Five Thousand Thirty-Five Dollars
and Fifty-Two Cents ($5,035.52) based on his gross monthly income of Six Thousand Five Hundred
Dollars ($6,500.00). The Court also placed on the record the finding at the conference that Mother's
net monthly income was determined by the officer to be Four Thousand One Hundred Dollars
($4,100.00) based annual gross income of Sixty-Seven Thousand Dollars ($67,000.00) from her current
employer, Refrigeration Air Conditioning, as the parties stipulated (N.T. 01/25/2018, P: 24). The
parties also stipulated they have equal physical custody of the Children as fifty/ fifty (50/50), and
Mother pays the Children's health insurance at a monthly cost of Ninety-Four Dollars and Ninety
Cents ($94.90) (N.T. 01/25/2018, p. 24).
Father testified at the hearing that he was employed with A.Weber until August 15, 2017 when
his employment terminated (N.T. 01/25/2018, pp. 34, 63). Father further testified that his bi-weekly
paycheck was Six Thousand Three Hundred Eighty-Eight Dollars and Forty-Seven Cents ($6,388.47)
4 (N.T. 01/25/2018, p. 34). Father agreed that his gross annual income for 2017 was One Hundred
Sixty-Six Thousand Dollars ($166,000.00) (N.T. 01/25/2018, P: 34). Father testified that following
his termination from A Weber he worked eight (8) hours per week as a consultant for a company called
LUXTECH which he obtained, through a firm called Trajectify (N.T. 01/25/2018, P: 35). Father
testified he is a 1099 employee for the consulting job, receiving monthly gross income of Five
Thousand Two Hundred Dollars ($5,200.00) per the consulting agreement with Trajectify (N.T.
01/25/2018, pp. 35, 37). Father stated that per the consulting agreement, Trajectify would receive
twenty percent (20%) and he received eighty percent (80%) of the consulting client payments and that
such agreement would terminate twelve (12) months from November 2017 (Sec N.T. 01/25/2018, P:
39). Father testified that he received additional income in the amount of Ninety-Nine Dollars ($99.00)
in 2017 from working with clients on his own side project known as "Sharey", an online marketing
tool for social media marketing (N.T. 01/25/2018, pp. 39-40).
Father testified that as of the time of the hearing, he was working under Trajectify contracts
for two (2) clients, LUXTECH and Club OS, and was also working with his second client through
Sharey (N.T. 01 /25 /2018, pp. 40-42). Father further explained to the Court how Sharey was
developed and how it works (N.T. 01/25/2018, 43-44). The record before this Court established
that Father started his Sharey project prior to his employment termination with A.Weber and that
Father had to shut down Sharey for a period of time at the request of .i\Weber (N.T. 01 /25/2018, p.
63).
At the conclusion of the hearing the matter was taken under advisement. This Court issued
its decision as set forth in the january 26, 2018 Child Support Order which is the subject of this
Appeal. The Order stated: Father to pay Eight Hundred Fifty Two Dollars ($852.00) per month for
the support of two (2) Children. The Court also ordered that Children's health care coverage would
5 be provided by Mother. The Order noted that after conducting the hearing and based on all testimony
and evidence presented, the Court determined Father's annual earning capacity based on his prior
history and the record in the case was Eighty-Two Thousand Ninety-One Dollars and Fifteen Cents
($82,091.15). The Order also noted the Court's consideration of the fact that both parties continue
to enjoy a fifty I fift}' (50 / 50) custody arrangement of the Children, and that the parties share child care
expenses for Child 2. This Court issued a separate Order on January 26, 2018 under docket number
2017-DR-01807 that Father's Petition for Recovery of Overpayment is granted and dismissed as same
had been considered and addressed and ordering the case to close.
On March 5, 2018, Father filed his Notice of Appeal to the Superior Court appealing the
January 26, 2018 Child Support Order. On March 26, 2018, this Court ordered Father to file a Concise
Statement of Errors which he has done. On March 28, 2018, Mother filed a Motion to Quash Appeal,
which was denied by the Superior Court on April 20, 2018. The Court nO'\V files this Opinion in
support of its ruling.
II. STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
On March 26, 2018, this Court issued an Order pursuant to Pa.R.A.P. 1925(b) directing Father
to file of record and serve on the undersigned a Concise Statement of Errors Complained of on Appeal
within twenty-one (21) days of the date of this Order. The Order also directed that "any issue not
properly included in the concise statement shall be deemed waived."
On March 27, 2018, Father filed a Concise Statement of Errors Complained of on Appeal, set
forth verbatim herein:
1. Whether the trial court abused its discretion in holding [Father] to an earning capacity, rather than using [Father's] actual income to determine child support.
6 2. Whether the trial court abused its discretion when it precluded from evidence testimony relating to [Mother's] financial condition
and ability to repay [Father's] $4,642.24 overpayment.
III. DISCUSSION
The Superior Court has continuously held that the standard of review in child support cases
is:
The amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground. Kessler v. Helmick, 672 A.2d 1380, 1382 (Pa. Super. 1996) (citation ornitted).
"An abuse of discretion requires proof of more than a mere error of judgment, but rather
evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable
or based on bias, ill will, prejudice, or partiality." Kersey v. Jefferson, 791 A.2d 419, 423 (Pa. Super.
2002) (citations omitted).
Father initially argues that this Court abused its discretion when it based Father's monthly
Child Support payments on his earning capacity rather than on his actual income. It is well established
under Pennsylvania law that "both parents are equally responsible for the support of their children."
K.lahold v. Kroh, 649 A.2d 701, 703 (Pa. Super. 1994). The Superior Court of Pennsylvania has
continuously noted that "the duty to support one's child is absolute, and the purpose of child support
is to promote the child's best interests." Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (qit0ting
Depp v. Holland, 636 A.2d 204, 206 (Pa. Super. 1994)).
7 The Court routinely emphasizes in support hearings that it has long been determined under
Pennsylvania law "[tJhe 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 y. Laws, 758 .A.Zd '1226, 1229
(Pa. Super. 2000). Child support payments are awarded based on guidelines using the parties' monthly
net income. Pa.R.C.P. 1910.16-2. "Where a party voluntarily assumes a lower paying job, there
generally will be no effect on the support obligation." Pa.R.C.P. 1910.16-2(d)(1). If a party "willfully
fail[s] to obtain or maintain appropriate employment," support payments may be set based upon the
party's earning capacity. Pa.R.C.P. 1910.16-2(d)(4).
An earning capacity is the amount a party could realistically earn under the circumstances.
Haselrig v. Haseldg, 840 .r\.Zd 338, 340 (Pa. Super. 2003). Earning capacity is the amount a person
realistically could earn under the circumstances, considering his age, health, mental and physical
condition, training, earnings history and child care responsibilities. Se!! Woskob v. \Xi'oskob, 843 A.2d
1247 (Pa. Super. 2004). Among the factors that must be considered when determining a party's
earning capacity are age, education, training, work experience, health and earning history. Pa.R.C.P.
1910.16-2(d)(4). A court may also consider other factors, such as jobs available within a certain
occupation and the effort a party has exerted to find employment. Id. Generally, a party's earning
capacity will not be altered if he or she "voluntarily assumes a lower paying job, quits a job, leaves
employment, changes occupations or changes employment status to pursue an education, or is fired
for cause." Pa.R.C.P. 1910.16-2(d)(1).
"The fact-finder is entitled to weigh the evidence presented and assess its credibility." Green
v. Green, 783 A.2d 788, 790 (Pa. Super. 2001). After examining the record and evaluating all testimony
and evidence presented to this Court, the Court properly based Father's monthly Child Support
payments on an assessed earning capacity of Eighty-Two Thousand Ninety-One Dollars and Fifteen
8 Cents ($82,091.15). Father testified he was employed with A Weber until August 15, 2017 when his
employment was terminated (N.T. 01/25/2018, pp. 34, 63). Importantly, Father testified that his
gross wages for 2016 were One Hundred Sixty-Four Thousand One Hundred Eighty-Three Dollars
($164,183.00) (N.T. 01/25/2018, p. 33). Father testified that his bi-weekly pay from A Weber in 2017
was Six Thousand Three Hundred Eighty-Eight Dollars and Forty-Seven Cents ($6,388.47) resulting
in a 2017 annual pay rate of One Hundred Sixty-Six Thousand Dollars ($166,000.00) (N.T.
01/25/2018, p. 34).
Father was terminated from A.Weber on August 15, 2017 (N.T. 01/25/2018, p. 63). Father
was subsequently denied unemployment benefits (N.T. 01/25/2018, P: 35). Since his termination of
employment with A'Weber, Father has been working as a consultant through a consulting firm called
Trajectify (N.T. 01/25/2018, P: 35). Father's consulting work commenced November 1, 2017, and
was based on a three-month agreement, ending january 2018 (N.T. 01/25/2018, p. 36). The record
is clear that Father works approximately eight (8) hours weekly in his current capacity as a consultant
(N.T. 01/25/2018, pp. 50-51). Father testified:
By Ms. Fineman: Q So based 011 your testimony thus far today, other than the 20 hours you spent, in the last week or two, on this new project with Club OS, your consulting contracts are generally between eight hours per week, and then Club OS, once somebody is hired, will be 30 minutes per week. Is that correct? A Once somebody's hired, correct.
(N.T. 01/25/2018, pp. 50-51).
The record also established that Father was not actively seeking full-time employment (N.T.
01/25/2018, p. 51). Father stated:
9 By Ms. Fineman: Q And what efforts have you made to obtain full-time etnployment? A Well, part of what I'm doing with Trajectify and, you know, I think it speaks to the way the agreement was written, that 12 months after the period I would be no longer obligated to pay Trajectify money, is to figure out ways to continue to work with the existing companies in a larger capacity.
In addition to that, I mean, you know, I found the Trajectify work by reaching out to my network. I mean, that's the way -- you hit a certain level in your career and the best way to find new work is to connect with people face to face, you know, rather than, like, a Monster.corn- type board. So, you know, I've been, you know, reaching out to people in my network, having conversations, having a lot of coffee to tty to find additional work. (N.T. 01/25/2018, p. 51).
Father further confirmed he has not formally sought full-time employment with another
employer like he had with A.Weber:
By Ms. Fineman: Q Have you applied for any other jobs? A I have not filed, like, a formal job application with other companies. Q Have you had any other -- any interviews for jobs? A I had -- no, no other interviews. Q Have you worked with any headhunters? A I generally avoid working with headhunters because when I've tried working with them in the past, they just haven't gotten me any valuable positions. Q Do you have any other substantive leads for full-time employment other than the work that you're currently doing with Trajectify? A Not currently. Well, I mean -- and Club OS. Q Club OS is through Trajectify, though. Correct? A Again, like, I -- you know, I pitched them specifically. You know, like, I was introduced to the CEO of Club OS I think back in October, November, and then I saw a potential opportunity with them. And then I actively pursued, you know, pitching them as a consultant.
(N.T. 01/25/2018, pp. 51-52).
This Court recognizes Father did not voluntarily depart from his job with A. Weber and that
there is a dispute between the parties as to whether or not Father was terminated for cause. Regardless
10 of that determination, the Court properly concluded Father's current earning capacity is simply not
commensurate with what he earned at A Weber. It is th.is Court's determination from examining the
record, assessing the witness(es) and considering the evidence and testimony presented that Father
possesses the availability, necessary physical health conditions, work experience, intelligence, mental
ability, job skills and employment history to secure employment more suitable to an earning capacity
as assessed by this Court, and not the lower amount he currently derives from his eight (8) hours per
week consulting work. Father has not shown any effort to actively secure foll-time employment.
Father admitted he did not complete any job applications, did not have any job interviews and was
not working with any headhunters.
Under Pennsylvania law, parents have an absolute obligation to support their children and this
obligation "must be discharged by the parents even if it causes them some hardship." Mencer v. Ruch,
928 J\.Z
properly found that Father failed to obtain appropriate employment despite being an educated,
experienced and intelligent man in good health. The Court holds Father is capable of securing full-
time employment to earn income higher than his current consulting and appropriate to his actual
earning capacity in order to allow him to meet his monthly Child Support payment obligations. For
these reasons, the Court properly concluded that Father should be assessed an earning capacity of
Eighty-Two Thousand Ninety-One Dollars and Fifteen Cents ($82,091.15) gross annually. This is not
the amount of One Hundred Sixty-Six Thousand Dollars ($166,000.00) he earned annually at A Weber,
but is more than what he currently earns annually from his limited consulting work and his start-up
Sharey project.
Father next argues that the Court abused its discretion when it precluded from evidence
testimony relating to Mother's financial condition and ability to repay Father's overpayment in the
11 amount of Four Thousand Sixty Hundred Forty-Two Dollars and Twenty-Four Cents ($4,642.24).
This Court finds Father's contentions are without merit. Father will obtain credits against this amount
for his Child Support obligation as established herein.
At the commencement of the january 25, 2018 hearing, both parties stipulated Mother's
annual grnss income is Sixty-Seven Thousand Dollars ($67,000.00) from Refrigeration Air
Conditioning and such conclusion was based on her paystubs (N.T. 01/25/2018, P: 24). The parties
also stipulated they share equal physical custody fifty/fifty (50/50) of the Children (N.T. 01/25/2018,
P: 24). Additionally, the parties agreed Mother pays health insurance for the minor Children at a
monthly cost of Ninety-Four Dollars and Ninety Cents ($94.90) (N.T. 01/25/2018, p. 24).
Furthermore, Mother testified at the hearing and Father was given ample opportunity to cross-
examine Mother and offer any documents into evidence (See N.T. 01 /25/2018, pp. 26-29). Nothing
in the record indicates this Court denied Father the opportunity to introduce any testimony and/ or
exhibits to support his case in this regard.
"It is within the discretion of the trial court to determine, under all the circumstances, what is
just and equitable." Hattley v. Hartley, 528 i\.2d 233, 235 (Pa. Super. 1987). Rule 1910.19(g)(1) states,
in pertinent part:
[i]f there is an overpayment .in an amount in excess of two months of the monthly support obligation and a charging order remains in effect, after notice to the parties as set forth below, the domestic relations section shall reduce the charging order by 20% or an amount sufficient to retire the overpayment by the time the charging order is terminated.
Pa.R.C.P .1910.19(g)(1 ).
In reaching its decision, the Court duly considered all evidence submitted into the record and
all witnesses' testimony and credibility thereof at the hearing. The Court notes the September 14,
2017 Order established an overpayment owed to Father in the total amount of Four Thousand Six
12 Hundred Forty-Two Dollars and Twenty-Four Cents ($4,642.24), representing Pour Thousand Three
Hundred Sixty-Five Dollars and Twenty-Four Cents ($4,365.24) in case balance overpayment and
Two Hundred Seventy-Seven Dollars ($270.00) which Mother owed Father for health insurance
contribution toward offset for the month of September 2017. The .Janua1y 26, 2018 Order states in
part "[sJhould there be an overpayment on the account, it is to reduce by 20% per PaRCP 1910.19
9(g)(1)." The Court's Order further indicated "[t]he sum of $4365.24 is to be reinstated as a credit to
be liquidated as stated above." Additionally, per the January 26, 2018 Order, Mother is obligated to
provide the Children's health care coverage and Mother is responsible to pay the first Two Hundred
Fifty Dollars ($250.00) annually per Child for any unreimbursed medical expenses. The Court granted
Father's request for recognition of his overpayment and, therefore, Father's contentions with respect
to the application or disposition of that overpayment credit ate meritless.
Finally, at the conclusion of the January 25, 2018 heating, the parties articulated to the Court
their stipulation to Father's overpayment issues and how it is going to be liquidated:
THE COURT: I see the analysis that there was extra -- I think I incorporated that into the record. Does mother disagree that there was an overpayment? MS. FINEMAN: No. There's a Consent Order as part of Your Honor deciding how that's going to be liquidated. THE COURT: So there's no dispute as to overpayment.
(N.T. 01/25/2018 p. 93).
The Court finds that Father is capable of gaining full-time employment more appropriate with
the earning capacity assigned by the Court and that his efforts to meet his Children's support
obligations and his general overall financial well-being would be better served in that manner, rather
than the cost and expense of protracted litigation.
13 IV. CONCLUSION
Based upon the foregoing reasons, this Court finds Father's Appeal is without merit. The
Court's Support Order should be affumed for the reasons set forth hereinabove.
BY THE COURT:
Date: !',fay 2, 2018