Doherty v. Doherty

859 A.2d 811, 2004 Pa. Super. 371, 2004 Pa. Super. LEXIS 3298

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2004
• Status: Published

Opinions

OPINION BY

DEL SOLE, P.J.:

¶ 1 In this appeal from an order setting child support, Mother contends the trial court erred in not applying the nurturing parent doctrine and erred in calculating her earning capacity. We affirm.¹

¶2 The parties to this appeal were married in January 1996, and separated in 2002. They are the parents of two children, Jonathan, born December 15, 1997, and Krissa, born March 1, 2000. The parties initially appeared before a hearing officer in November and December 2002. The case was then referred to a Complex Hearing Officer who heard testimony on two dates in March 2003. Mother filed exceptions to the Hearing Officer’s report and recommendation. Following argument, the trial court dismissed Mother’s exceptions. This appeal followed.

On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by evidence on the record, discretion is abused.

Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 796 (1985) (citations omitted). Thus, a reviewing court does not weigh the evidence or determine credibility as these are functions of the trial court. Nationwide Ins. Enter. v. Moustakidis, 830 A.2d 1288, 1292 (Pa.Super.2003) (“It is not the role of an appellate court to pass on the credibility of witnesses or to act as the trier of fact, and an appellate court will not substitute its judgment for that of the fact-finder.”) When we review the record in light of this rather stringent standard, we are unable to conclude that the trial court abused its discretion as so defined.

¶ 3 Appellant argues that the trial court abused its discretion by not applying the nurturing parent doctrine which recognizes that a custodial parent who stays at home and cares for a child does, in fact, support the child. Funk v. Funk, 376 Pa.Super. 76, 545 A.2d 326 (1988). In determining whether to expect a nurturing parent to seek employment, the trial court must balance factors such as the age and maturity of the child, the availability and adequacy of others who might assist the custodial parent, and the adequacy of available financial resources if the parent does remain at home. Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977). Moreover, the court “is not strictly bound by the nurturing parent’s assertion that the best interest of the child is served by the parent’s presence in the home.” Stredny v. Gray, 353 Pa.Super. 376, 510 A.2d 359, 363 (1986).

¶ 4 Presently, both the hearing officer and the trial court properly considered and weighed the various factors. These factors, which are amply supported by evidence of record include the following: “credible and comprehensive [expert] testimony regarding Mother’s employment history and current capabilities.” Trial Court Opinion, 10/21/03, at 6 (quoting Master’s Report); the young age of the children together with the fact that they do spend some time during the week in pre-school and that Jonathan was to start full-day kindergarten the following year; that affordable child care is available both through Father’s family and at the place where the children currently attend preschool; that Mother had worked full-time before the children were born and part-time after the children were born and was, at the time of the hearing, working part-time as a merchandiser and baby-sitting for a neighbor. The master further recognized that the parties’ financial situation was not terribly strong, given the parties’ expenses and Father’s recent but understandable job changes. Most importantly, the hearing officer, who was in the best position to judge Mother’s credibility, found her “use of the nurturing parent doctrine ... disingenuous.” Master’s Report at 6. This credibility determination cannot be revisited on appeal.

¶ 5 We conclude therefore that the trial court’s refusal to apply the nurturing parent doctrine to this particular case was supported both by case law and the evidence presented. This conclusion was not reached as the result of partiality, prejudice, bias, or ill-will nor was the law overridden or the judgment exercised manifestly unreasonable as the master and trial court considered and weighed all of the factors necessary for application of the nurturing parent doctrine. There was thus no abuse of discretion in the trial court’s decision to assess an earning capacity to Mother.²

¶ 6 Appellant further argues that the trial court abused its discretion in determining her earning capacity and the time from which she could conceivably obtain employment. While recognizing that the hearing officer found the vocational expert to be credible, Appellant now bases this claim entirely on a credibility challenge to the expert’s testimony. We cannot reassess credibility on appeal. Nationwide, 830 A.2d at 1292.

¶ 7 Accordingly, since we find no abuse of discretion in the trial court’s determination, we affirm the order.

¶ 8 Order affirmed.

¶ 9 ORIE MELVIN, J. files a dissenting opinion.

1 . The order in question set the support payments as follows: Father to pay $2,359 ($941 child support plus $833 spousal support plus $615 mortgage deviation) per month from the September 9, 2002, filing date through July 1, 2003; after July 1, 2003, Father to pay $1,699 per month ($875 child support, $350 spousal support plus $474 mortgage deviation). This $1699 is approximately 44% of Appellee’s net monthly earnings of $3892.

2 . The dissent places great emphasis on certain factors: that Appellee earns approximately $70,000 a year and has minimal expenses since he lives with his parents; and that the Hearing Officer gave insufficient weight to Appellant’s perception that the children's best interest is served by her staying at home. It is precisely this reweighing of the evidence that an appellate court is not at liberty to do. Nationwide, 830 A.2d at 1292.