Samii v. Samii

847 A.2d 691, 2004 Pa. Super. 108, 2004 Pa. Super. LEXIS 404
CourtSuperior Court of Pennsylvania
DecidedApril 7, 2004
StatusPublished
Cited by51 cases

This text of 847 A.2d 691 (Samii v. Samii) 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
Samii v. Samii, 847 A.2d 691, 2004 Pa. Super. 108, 2004 Pa. Super. LEXIS 404 (Pa. Ct. App. 2004).

Opinion

OPINION BY BENDER, J.:

¶ 1 Agnes I. Samii (Mother) appeals from an order that dismissed her petition for the modification of child support for her and Hossein D. Samii’s (Father) daughter on the basis that no material or substantial change in circumstances occurred since the entry of the existing support order. Mother’s issues concern: (1) the trial court’s determination that the change in circumstances was to be measured from a 2002 support order rather than a 1999 order, (2) the assigning of an earning capacity to Mother, (3) the increase in child care expenses, (4) the court’s failure to allow Mother to testify at a later time, and (5) the court’s failure to allow Mother to call Father as a witness as on cross examination. For the reasons that follow, we affirm.

¶ 2 This matter commenced with Mother’s October 7, 2002 filing of a petition to modify child support. Based on the evidence presented at a hearing held on March 4, 2003, the trial court set forth the following recitation of the facts as they relate to the issues raised by Mother:

Agnes I. Samii (“Mother”) and Hos-sein D. Samii (“Father”) were married on September 16, 1989, separated on July 14, 1998 and divorced in December of 2001.
There was one child born of this marriage, Alexa Samii (“Alexa”), date of birth August 23, 1996. Since the parties’ separation, Alexa has lived with Mother and sees Father on a regular partial custody schedule.
Both parties are dentists. Father is an endodontist who maintains a practice in Lancaster County, PA. Mother is an orthodontist who practiced in Lancaster until she voluntarily stopped working entirely in July of 2002 in order to stay home full time with six year old Alexa. She has not worked since. Alexa is now in first grade, attending school from 8:30 until 3:00 daily. When Mother worked, Alexa was cared for by a nanny who left in May of 2000 to have a child. After the nanny left, Mother cut back her work hours so as to be at work when Alexa was in school or at Father’s.
Mother had earned $80,847.00 in 1999, the year before she started to cut back on her work hours preparatory to stopping work. She now claims to be without earning capacity, on account of a covenant not to compete in her employment contract and her inability to find a job close enough to Lancaster to pick her daughter up after school. She has made some informal inquiries of some nearby dentists about possible employment. She claims that expenses for the reasonable needs of the child have increased from $62,620 in 1999 to $81,645 annually.
According to his federal income tax returns, Father earned $780,458.11 in 2001 and $654,402.24 in 2002.
A support Order was entered on May 10, 1999, providing for child support of $4,000.00 monthly and spousal support of $6,000.00. On November 7, 2001, the parties entered into a Property Settlement Agreement (“PSA”), which provided, in part, that child support would be $4,000 per month and that Mother could not request a modification of that amount for one year from November 1, 2001. The document provided for no alimony for Mother.
On March 18, 2002, by agreement of the parties, the May 10, 1999 order was modified. The new order did not con *694 tain the spousal support obligation, but the $4,000 child support figure was retained. On October 7, 2002, Mother filed a request for a modification of the child support on the grounds of her decreased earnings, Father’s increased earnings, and Alexa’s increased expenses. The conference hearing officer listed the matter for a complex hearing which was held on March 4, 2003. On March 20, 2003, the Court declined to modify the March, 2002 Order on the grounds that there had been no material and substantial change in circumstances.

Trial Court Opinion (T.C.O.), 5/23/03, at 1-3. Based upon the above findings, the trial court dismissed Mother’s petition for modification of child support, holding that no material or substantial change in circumstances occurred since the entry of the March 18, 2002 order.

¶ 3 Mother now appeals to this Court, raising the following issues for our review:

A. Whether the lower court erred in relying upon the March 18, 2002 modification to the support order of May 10, 1999, rather than the actual support order of May 10, 1999, in determining if there had been a material and substantial change in circumstances warranting an increase in child support payments from [Father ?]
B. Whether the lower court erred in ascribing earning capacity to [Mother ?]
C. WTiether the lower court erred by failing to consider the increase in child care expenses that [Mother] has had to assume [?]
D. “Whether the lower court committed harmful error by denying [Mother] the opportunity to testify at a later date concerning the increases in child care expenses that have occurred since issuance of the March 18, 2002 modification to the support order of May 10,1999[?]
E.Whether the lower court abused its discretion by refusing to allow [Mother’s] counsel to call [Father] as on cross examination to testify concerning [Father’s] additional earning power [?]

Mother’s brief at 4.

¶ 4 Initially, we note that the court in Laws v. Laws, 758 A.2d 1226 (Pa.Super.2000), set forth the following to guide our review of a support order:

“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.” Calabrese v. Calabrese, 452 Pa.Super. 497, 682 A.2d 393, 395 (1996). 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. Id. 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. Depp v. Holland, 431 Pa.Super. 209, 636 A.2d 204, 205-06 (1994). See also Funk v. Funk, 376 Pa.Super. 76, 545 A.2d 326, 329 (1988). In addition, we note that the duty to support one’s child is absolute, and the purpose of child support is to promote the child’s best interests. Depp, 636 A.2d at 206.

Laws, 758 A.2d at 1228 (quoting Humphreys v. DeRoss, 737 A.2d 775, 776-77 (Pa.Super.1999), rev’d on other grounds, 567 Pa. 614, 790 A.2d 281 (2002)).

¶ 5 Mother first argues that the trial court erred in measuring from the *695

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Bluebook (online)
847 A.2d 691, 2004 Pa. Super. 108, 2004 Pa. Super. LEXIS 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samii-v-samii-pasuperct-2004.