Grigoruk v. Grigoruk

912 A.2d 311, 2006 Pa. Super. 334, 2006 Pa. Super. LEXIS 4087
CourtSuperior Court of Pennsylvania
DecidedNovember 20, 2006
StatusPublished
Cited by16 cases

This text of 912 A.2d 311 (Grigoruk v. Grigoruk) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grigoruk v. Grigoruk, 912 A.2d 311, 2006 Pa. Super. 334, 2006 Pa. Super. LEXIS 4087 (Pa. Ct. App. 2006).

Opinion

*312 OPINION BY

BOWES, J.:

¶ 1 This is an appeal from an order modifying support and awarding an increase in child support to Mother. We affirm.

¶ 2 Melissa and Michael Grigoruk, now divorced, are the parents of two children, Trevor, age nine, and Bronte, age twelve. Under the parents’ shared physical custody arrangement, Mother has the children eight days and Father has custody six days during a two-week period.

¶ 3 Since 1998, Mother has been employed as an administrator/executive, primarily in the education field, earning $84,000 to $101,400 annually. Most recently, Mother was Chief Executive Officer of the Greater Lehigh Valley Girl Scout Council, earning approximately $90,000 annually. Mother has a Bachelor’s Degree in psychology and elementary education, a Master’s Degree in education and reading, and a Doctorate in education. Mother is also certified as an elementary school and secondary school principal, a school superintendent, and a reading specialist. In March 2004, Mother left her position with the Girl Scouts and is currently employed as a reading specialist with an annual salary of $52,000.

¶ 4 On March 17, 2005, Mother filed for modification of the existing support order averring the following material change in circumstance: “It has been approximately three years since the last order and the prior order included an offset for [Mother’s] alimony pendent lite obligation to [Father], which has been resolved by the Property Settlement Agreement dated December 7, 2004.” Petition for Modification, 3/17/05, at ¶ 2. After a support conference was held on May 20, 2005, an interim support order was issued accepting Mother’s representation of a decreased earning capacity. Father requested a hearing de novo.

¶ 5 At the July 20, 2005 evidentiary hearing, Mother testified that after she left her position with the Girl Scouts, 1 she conducted a six-month job search focusing on college professorships and education positions within school districts, including applications for school principal positions. She recalled that she sent out approximately ten applications. In September 2004, Mother accepted a position as a reading specialist with an annual salary of $52,000, the only job offer she received. Mother also teaches summer school and volunteers at her boyfriend’s retail business. Mother testified that she terminated her job search after accepting the reading specialist position and admitted that she enjoys the less demanding job as it affords her more time with her children.

¶ 6 The Hearing Master determined that Mother’s change in employment was not motivated by an attempt to minimize her support obligation. The Master also found that Mother acted responsibly and in good faith to mitigate her earning loss.

¶ 7 The Master then addressed whether Mother has an ongoing duty to continue to search for higher-paying work. While the Master acknowledged some merit to Father’s position that Mother should continue to expend a good faith effort to mitigate lost earnings, he was likewise sympathetic to Mother’s position that she is committed to her new job and would not want to jeopardize her employment by continuing *313 to mount a job search. Balancing the two contentions, the Master concluded that Ewing v. Ewing, 843 A.2d 1282 (Pa.Super.2004), and its progeny do not require that Mother be assessed a higher earning capacity merely because she has not continued to search for a higher paying job. The Master thus recommended that Mother’s income be calculated in accordance with her current salary as a reading specialist.

¶ 8 Father filed exceptions to the recommendation, averring that Mother should be assessed an earning capacity of an experienced school administrator. On January 12, 2006, the trial court adopted the Master’s findings and denied Father’s exceptions. This appeal followed.

¶ 9 On appeal, Father claims that Mother should be assessed an earning capacity as an experienced school administrator and that she has an ongoing duty to mitigate her loss of income by continuing to search for a position that matches her established career and academic credentials.

¶ 10 In reviewing a support order, we are limited to considering whether based on clear and convincing evidence the trial court abused its discretion. Novinger v. Smith, 880 A.2d 1255 (Pa.Super.2005).

¶ 11 We first address whether Mother’s earning capacity was correctly assessed.

Pa.R.C.P. 1910.16 — 2(d) provides:

(d) Reduced or Fluctuating Income.
(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. Ordinarily, either party to a support action who willfully fails to obtain appropriate employment will be considered to have 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.

¶ 12 Under Rule 1910.16-2(d)(l), if a party voluntarily accepts a lower paying job, there generally will be no effect on the support obligation. A party may not voluntarily reduce his or her income in an attempt to circumvent his support obligation. Woskob v. Woskob, 843 A.2d 1247, 1253-54 (Pa.Super.2004); Dennis v. Whitney, 844 A.2d 1267, 1269-70 (Pa.Super.2004). Where a parent is fired for cause, however, the court can consider reducing the parent’s child support obligation under Rule 1910.16(2)(d)(l) if the parent establishes that he or she attempted to mitigate lost income. Ewing, supra at 1288.

¶ 13 As noted, for purposes of the support hearing, it was assumed that Mother was terminated from her Girl Scout position for willful misconduct. It was also undisputed that Mother’s job loss was not a result of Mother’s effort to avoid her support obligation. Therefore, under Ewing, we scrutinize Mother’s effort to mitigate her decreased earnings.

¶ 14 Father argues that Mother must be assessed an earning capacity corresponding to her prior employment history and qualifications because she did not attempt to mitigate the income loss resulting from her termination. Father claims that Mother engaged in a negligible job search, applying for ten jobs in six months, and that Mother chose not to pursue available administrative positions for which she had the requisite experience,' education, and *314

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Bluebook (online)
912 A.2d 311, 2006 Pa. Super. 334, 2006 Pa. Super. LEXIS 4087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grigoruk-v-grigoruk-pasuperct-2006.