McCullagh, M. v. Buckley, D.

• Court: Superior Court of Pennsylvania
• Decided: July 16, 2025
• Docket: 1626 MDA 2024
• Status: Unpublished

Opinion

J-S13016-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MOLLY MCCULLAGH : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DUSTIN BUCKLEY : No. 1626 MDA 2024

Appeal from the Order Entered October 4, 2024 In the Court of Common Pleas of Centre County Domestic Relations at No(s): 2024-00046-S, PACSES No. 502302657

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 16, 2025

Molly McCullagh (“Mother”) appeals from the amended order entered by

the Centre County Court of Common Pleas adjusting Dustin Buckley’s

(“Father”) support obligation and earning capacity. She claims Father’s

earning capacity should be significantly higher. We affirm.

The trial court discussed the following factual and procedural history.

[Mother] filed a new complaint for support [against Father] on March 20, 2024. Following a conference with a conference officer, an unallocated support Order was entered requiring [Father] to pay $4,269.00 per month to [Mother]. At the time of the support conference in May, [Father] reported imminent plans to change employment when his then-assignment ended in June due to the high stress and danger of his job and because the work required him to live in Baghdad, away from [Mother and Father’s] eight-year-old daughter, for most of the year. As [Father] had not yet changed jobs, the conference officer calculated support based on [Father]’s 2023 annual income of $201,970.29, plus Veterans Affairs disability benefits. J-S13016-25

[Father] filed a demand for a de novo hearing on June 20, 2024. In the demand, [Father] raised two issues, [but only proceeded with one]: First, [Father] contends the conference officer erred in determining his income and earning capacity… A hearing was held on August 6, 2024. [Father] presented evidence only as to the issue regarding the change in his employment status and his income and earning capacity…

Trial Court Opinion, 10/4/24, at 1.

By the time of the de novo hearing, Father had left his previous

employment overseas and had moved back to Centre County, Pennsylvania,

and was actively looking for a new job. Father argued that his change in

employment was not motivated by a desire to avoid support, that his most

recent past earnings were not an appropriate measure of his earning capacity,

and that, commensurate with his current education and experience, his

income should be assessed at an earning capacity of $50,000 to $55,000 per

year. Mother argued that the timing of Father’s career change so close to her

filing for support was suspect, and that Father was simply trying to reduce his

support obligation. Mother asserted Father’s income should be calculated

based on his 2023 earnings.

The trial court concluded that Father’s income should be reduced to

$55,000 per year beginning on July 1, 2024.

At the time of separation, [Father] worked for Triple Canopy, Inc., a company that contracts with the Department of State to provide protective services. [Father] was employed by Triple Canopy as a protective security specialist/paramedic doing bodyguard work for the ambassador of Baghdad when the ambassador traveled to and from the embassy. The work was demanding and dangerous. [Father] worked a minimum of 72 hours per

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week and was on-call for overtime hours on an as-needed basis. His job required him to live in Baghdad for most of the year; he would spend 126 days in Baghdad working, followed by a 42 day break to return home before the next 126-day period of service in Baghdad.

During the marriage, it was the understanding of both parties that [Father]’s employment with Triple Canopy would not be long-term. He began this work in June of 2018 with the idea that it would be a short-term way for the family to pay the mortgage and build a nest egg for the future, and that he would return to earn a college degree and get a job. [Father] testified that he left the Triple Canopy job after his last assignment ended because the stress and danger involved with the work made it unsustainable long-term, and because he wanted to be present to exercise regular, consistent custodial periods with [Mother’s and his] eight- year-old daughter so as to support her during this stressful time for the family and to foster his relationship with her.

T.C.O. at 2-3.

The court found Father’s testimony credible, and concluded Father was

not motivated by a desire to avoid paying support. The trial court found Father

attempted to mitigate his reduced earnings. Based on the evidence

presented, the court concluded that $55,000 per year was an appropriate

measure of [Father]’s current earning capacity.

Mother timely appealed. Mother and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

Mother raises the following four issues on appeal, all pertaining to

whether the trial court erred in determining Father’s income for purposes of

calculating his support obligations.

1. Whether the Trial Court abused its discretion and/or committed errors of law in determining [Father]’s most

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recent past earnings were not an appropriate measure of his current earning capacity?

2. Whether the Trial Court abused its discretion and/or committed errors of law in determining that $55,000 was an appropriate measure of [Father]’s present earning capacity?

3. Whether the Trial Court abused its discretion in determining the evidence of record supports $55,000 as an appropriate measure of [Father]’s present earning capacity?

4. Whether the Trial Court abused its discretion and/or committed errors of law in its application of Pa.R.Civ.P. 1910.16-2(d)(1)?

Mother’s Brief at 3-4.

In an appeal from a support order, the appellate court’s standard of

review is as follows:

When evaluating a support order, this 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.

Summers v. Summers, 35 A.3d 786, 788 (Pa. 2012).

The appellate court will defer to the trial court’s factual findings that are

supported by the record and its credibility determinations. M.G. v. L.D., 155

A.3d 1083, 1091 (Pa. Super. 2017) (citations omitted).

The issues in this case all concern whether the trial court abused its

discretion in downwardly adjusting Father’s income when he left his job

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overseas to return to Centre County. The Pennsylvania Rules of Civil

Procedure address a party’s voluntary income reduction as follows:

(d) Reduced Income or Fluctuating Earnings.

(1) Voluntary Income Reduction--Existing Orders. The trier-of- fact shall not downwardly adjust a party’s net income from an existing order if the trier-of-fact finds that:

(i) the party’s income reduction resulted from the party willfully attempting to favorably affect the party’s basic support obligation; or

(ii) the party voluntarily assumed a lower paying job, quit a job, left employment, changed occupations, changed employment status to pursue an education, or employment is terminated due to willful misconduct.

Pa.R.Civ.P. 1910.16-2(d)(1)(i-ii).

This court has determined that a party requesting a reduction to modify

a support order based on a voluntary reduction in income must demonstrate

two things: 1) that the change was not made to avoid child support; and 2)

that the party made sufficient efforts to mitigate the lost income as to warrant

the reduction. Ewing v. Ewing, 843 A.2d 1282, 1287-88 (Pa. Super. 1999).

On appeal, Mother addresses her four issues together, so we do the

same.1 Mother argues that Father’s voluntary reduction in income was for the

____________________________________________

1 We remind counsel that Appellate Rule 2119(a) requires the argument section of the appellate brief to be divided into as many parts as there are questions to be answered and that each part address the issue raised therein. Combining all issues into one argument, without headings, is strongly disfavored.

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purpose of reducing child and spousal support, and that Father did not make

significant effort to mitigate this reduction in income.

First, Mother argues that Father left work voluntarily, and she contends

that Father did so to lower his support obligations. She argues the timing of

his job change was suspect because he resigned nine days prior to the initial

support conference.

The trial court found that Father’s voluntary reduction in income was not

a willful attempt to avoid paying support. Instead, Father’s decision to leave

the job in Baghdad was reasonable and appropriate under the circumstances

as the work done by Father was demanding and dangerous. Father’s job

required him to live in Baghdad for most of the year.

Also, the trial court found that during the marriage, it was the

understanding of both parties that Father’s employment would not be long-

term. Mother testified that she had asked Father to leave his job two years

ago, and had looked at other jobs for him, including one of the jobs that Father

applied for in Centre County. See N.T. at 59. According to Father, Mother

knew that the job in Baghdad was never a long-term employment situation.

He and Mother had agreed that when he accepted the position with Triple

Canopy it was only to be a temporary sacrifice of being gone so much “to earn

a lot of money, with the intent of paying off their mortgage, create a nest egg

so he could afford to come back and finish his bachelor’s degree and get a

better job back in the United States in order to be present in their daughter’s

life.” Id. at 13-14.

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Father also noticed that the divorce proceedings were taking a toll on

the daughter, and he wanted to be present in her life to preserve that

relationship and watch her grow up. Id. Although, as Mother contends, the

timing of Father’s resignation came only nine days prior to the initial support

hearing, the trial court, nonetheless, found Father’s reason for leaving to be

justified. The trial court found Father’s testimony that he left his job because

of the high stress and danger, and that he wanted to be present to exercise

regular, consistent custodial periods with the parties’ eight-year-old daughter

to be credible. Thus, the trial court concluded that Father was not motivated

by a desire to avoid paying support. As the record supports this conclusion,

we discern no abuse of discretion.

Second, Mother argues that Father’s efforts to mitigate cannot

reasonably be considered sufficient, nor are the positions to which he applied

appropriate. Mother argues that Father had only applied to new jobs just days

before the initial support conference. Mother contends these jobs are not

appropriate for Father, as his fifteen years’ experience deem him overqualified

for entry level security positions. Mother further argues that the trial court

should have considered the fact that Father submitted his resignation before

obtaining new employment when determining whether Father made sufficient

efforts to mitigate his voluntary reduction of income.

Father testified that he applied for security positions with ARL in May

2024 while he was still away in Baghdad. Id. Father also testified to applying

for jobs commensurate with his experience, specifically security positions with

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Raytheon Technologies, the local hospital, Sheetz, Gates Foundation,

Pinkerton Organization, TSA, and the Navy. Id. at 15-16. Although he had

not heard back from all of these prospective employers, he did have interviews

with three of them. Id.

The trial court determined that Father had presented sufficient evidence

regarding his efforts to mitigate his reduced earnings. It also found Father

credibly testified that he had been engaged in an ongoing job search since

leaving his job at Triple Canopy and moving back to the states and Centre

County. We will not disturb this credibility determination. See M.G., supra.

Moreover, we can not say the trial court was manifestly unreasonable in

allowing Father to return home from a dangerous assignment overseas to look

for employment near his daughter when both parties agreed his overseas work

would be temporary. Thus, Mother’s mitigation argument fails, and Father

met both Ewing factors to support a voluntary reduction in income.

Lastly, Mother argues that the assessment of Father’s earning capacity

at $55,000 is not appropriate. Instead, Mother contends that the last six years

of Father’s earnings of approximately $200,000 per year, should have been

considered. Father testified that prior to his employment with Triple Canopy,

he had never earned that kind of income. N.T. at 18.

By way of background, the trial court observed that Father is

approximately forty years old. Before starting employment in Baghdad, Father

worked for the Penn State Police doing security work where he earned $36,000

per year. He is a high school graduate and has earned some credits toward a

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college degree. He would like to complete coursework for a bachelor’s degree

and needs thirty-three additional credits for a degree in international politics

with a national security focus. Father testified that there are no stateside jobs

comparable in salary to his previous job in Baghdad, and that the jobs he has

applied for, and for which he is currently qualified, have salary ranges from

$39,000 to $55,000 per year. Id. at 17-18. Father testified that at the time

of the hearing he had no job but asked the court to assess his earning capacity

to be between $50,000 and $55,000. Id. at 24.

Father further testified that his income in Baghdad was largely due to

danger pay that was for certain areas of the world that are more prone to

violent outburst, that Baghdad was the highest, and that there are no

comparable jobs stateside. Id. at 19. Father stated that upon finishing his

bachelor’s degree, he would have a lot more job opportunities open to him

that would increase his earning capacity. Id. at 23.

The trial court concluded that Father’s most recent past earnings were

not an appropriate measure of his earning capacity outside of the dangerous

environment he left. The trial court found Father’s testimony to be credible

and set Father’s earning capacity at $55,000, effective on July 1, 2024.2

Mother did not provide any evidence to contradict Father’s $55,000

earning capacity aside from stating that Father should have the same earnings

2 From May 2024 to July 2024, Father’s support obligation was determined from his 2023 income. Thus, Mother’s appeal only challenges the support obligation calculation effective July 1, 2024.

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he had in Baghdad indefinitely. The trial court had already determined that

Father was justified in leaving the Baghdad position. Moreover, the trial court

accepted Father’s testimony that security jobs in State College did not offer

comparable pay to his Baghdad employment. Thus, we find no abuse of

discretion in setting Father’s earning capacity at $55,000 per year beginning

July 1, 2024. Mother’s last argument merits no relief.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 7/16/2025

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