Wingard, M. v. Wingard, R. ( 2018 )

J-S78025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELISSA L. WINGARD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT D. WINGARD, III :
:
Appellant : No. 736 WDA 2017
Appeal from the Order Entered April 20, 2017
In the Court of Common Pleas of Washington County Domestic Relations at
No(s): 00034 DR 2014
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 07, 2018
Appellant, Robert D. Wingard, III (“Father”), appeals from the April
20, 2017 Order entered in the Washington County Court of Common Pleas
which, inter alia, denied Father’s Petition for Modification of the Support
Order and ordered Father to continue to pay a monthly child support
obligation of $1,789, plus arrearages, to Appellee, Melissa L. Wingard
(“Mother”).1 After careful review, we affirm.
The parties are familiar with the procedural and factual history of this
case, and we need not restate them in detail here. In sum, Mother and
Father were married in November 2003 and separated in October 2013.
They are parents to three children. Mother initiated the instant case on June
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1 Although the Order is dated April 19, 2017, it does not appear on the
docket until April 20, 2017. We have changed the caption accordingly.
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* Retired Senior Judge assigned to the Superior Court.
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27, 2014, when she filed a Complaint for Support. On August 1, 2014, the
trial court issued a child support Order that required Father to pay a monthly
child support obligation of $1,638.00.2
Over the next two years, the Washington County Domestic Relations
Section (“WCDRS”) filed multiple Petitions for Contempt alleging Father’s
failure to pay his support obligation; Father filed a Petition to Modify Support
alleging that he had lost his job; Mother filed a Petition to Modify Support
alleging that Father was employed; and the parties appeared before a
Hearing Officer on numerous occasions to address numerous filings.
On April 11, 2016, after a hearing to address Mother’s Petition to
Modify Support, the Hearing Officer made a finding that a report from
Father’s employer directly contradicted Father’s testimony that he was
unemployed and that Father’s misleading testimony regarding his alleged
unemployment significantly impeded the determination of an appropriate
support order. See Findings of Hearing Officer, filed 4/11/16.
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2 The Order also required Father to pay $546.00 in spousal support. We
acknowledge that an interim spousal support order in a divorce case is
interlocutory and, thus, not reviewable until final disposition of the case.
Diament v. Diament, 771 A.2d 793, 795 (Pa. Super. 2001). Instantly,
Father is only appealing the portion of the Order that applies to his child
support obligation, which is appealable and not interlocutory. See id.-2-
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Most relevant to this appeal, on June 28, 2016, the trial court ordered
Father to pay a monthly child support obligation of $1,789.00, plus
arrearages.3 On August 9, 2016, Father filed another Petition to Modify
Support.
In the meantime, on August 12, 2016, WCDRS filed another Petition
for Contempt alleging Father had failed to pay his support obligations. On
October 4, 2016, after a hearing on the Petition for Contempt, the trial court
found Father in contempt, sentenced Father to pay an aggregate sum of
$9848.64 in child and spousal support and $2,000.00 in attorneys’ fees to
purge the contempt, or serve a period of incarceration.4 Father was unable
to make payments and served one month of incarceration.
After a hearing, on February 6, 2017, the Hearing Officer
recommended that the trial court dismiss Father’s Petition to Modify Support
because Father failed to prove a material and substantial change in his
circumstances. On February 27, 2017, Father filed Exceptions to the
Findings of Hearing Officer and the trial court scheduled oral argument on
the matter. On April 20, 2017, the trial court denied Father’s Exceptions,
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3 The Order is dated June 24, 2016, but does not appear on the docket until
June 28, 2016.
4The Order does not delineate between the amount owed for child support
and the amount owed for spousal support.
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denied Father’s Petition to Modify Support, and ordered Father to pay a
monthly child support obligation of $1,789.00, plus arrearages.
Father timely appealed. The trial court did not order Father to file a
Pa.R.A.P. 1925(b) Statement. On July 14, 2018, the trial court filed a
Pa.R.A.P. 1925(a) Opinion.
Father raises the following issue for our review: “Did [Father]
demonstrate material change of circumstance to qualify for a modification of
his child support obligation?” Father’s Brief at 9.
We may reverse a child support order only if we find that the order
cannot be sustained on any valid ground. McClain v. McClain, 872 A.2d
856, 860 (Pa. Super. 2005). “A trial court's decision regarding the
modification of a child support award will not be overturned absent an abuse
of discretion, namely, an unreasonable exercise of judgment or a
misapplication of the law.” Plunkard v. McConnell, 962 A.2d 1227, 1229
(Pa. Super. 2008). Importantly, we acknowledge, “the duty to support one's
child is absolute, and the purpose of child support is to promote the child's
best interests.” Arbet v. Arbet, 863 A.2d 34, 39 (Pa. Super. 2004)
(citation omitted).
A party may file a petition for modification of a support order at any
time and a trial court should grant the modification if the petitioning party
demonstrates a material and substantial change in their circumstances that
warrants a modification. See 23 Pa.C.S. § 4352(a); Pa.R.C.P. 1910.19. The
moving party has the burden of demonstrating a material and substantial
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change, and “the determination of whether such change has occurred in the
circumstances of the moving party rests within the trial court's discretion.”
Plunkard, supra at 1229. In child support proceedings, the fact-finder is
free to weigh the evidence presented and assess its credibility. Green v.
Green, 783 A.2d 788, 791 (Pa. Super. 2001). Moreover, we are bound by
the trial court's credibility determinations. Wade v. Huston, 877 A.2d 464,
465 (Pa. Super. 2005).
This Court has repeatedly stated, “a person's support obligation is
determined primarily by the parties' actual financial resources and their
earning capacity. Although a person's actual earnings usually reflect his
earning capacity, where there is a divergence, the obligation is determined
more by earning capacity than actual earnings.” Woskob v. Woskob, 843
A.2d 1247, 1251 (Pa. Super. 2004) (citations omitted). The Pennsylvania
Support Guidelines state, in pertinent part, that there “generally will be no
effect on the support obligation” if a party voluntarily assumes a lower
paying job, quits a job, leaves employment, or is fired for cause. Pa.R.C.P.
No. 1910.16-2(d)(1). Moreover, if a party has willfully failed to maintain
appropriate employment, the trier of fact “may impute to that party an
income equal to the party’s earning capacity.” Pa.R.C.P. No. 1910.16-
2(d)(4). “Earning capacity is defined as the amount that a person
realistically could earn under the circumstances, considering his age, health,
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mental and physical condition, training, and earnings history.” Woskob,
supra at 1251 (citation omitted). See also Pa.R.C.P. No. 1910.16-2(d)(4).
In his sole issue for our review, Father avers that the trial court erred
when it determined that Father had not proven a material change of
circumstance to qualify for a modification of his child support obligation.
Father’s Brief at 16. Father asserts that his employer fired him for refusal to
relocate and the trial court incarcerated him for failing to pay child support,
which further jeopardized his actual earnings and earning capacity. Id.
Father argues that these circumstances are sufficient to qualify him for a
support modification. Id.
The trial court, however, did not find Father’s testimony to be credible.
Moreover, as discussed infra, the record supports the trial court’s findings
and, therefore, we find no abuse of discretion.
Father first argues that his employer fired him because he would not
move to Connecticut away from his children and evidence of this constitutes
competent evidence of a material and substantial change in circumstances.
After independently reviewing the evidence, however, the trial court adopted
the Hearing Officer’s findings regarding the credibility of Father’s testimony,
and concluded that Father did not present credible evidence that his
employer fired him for refusal to relocate. See Trial Court Opinion, dated
7/14/17, at 6. The trial court opined:
The Hearing Officer’s [f]indings made it clear that Appellant did
not provide credible testimony. [Father] testified that he had
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lost employment with Bayada because he refused to relocate. In
his [f]indings, the Hearing Officer explicitly states that [Father]’s
testimony was contradicted by his own wage statements from
Bayada which listed [Father]’s address as 186 Livingston Road,
Middletown, Connecticut. The credibility of his testimony was
further challenged based upon his prior inconsistent statement
regarding employment with Bayada. At the hearing on March
28, 2016, [Father] testified that he was not an employee of
Bayada. Subsequently, at the hearing on January 30, 2017, he
provided testimony that he was, in fact, employed by Bayada
and had recently been terminated from his position.
The burden is upon [Father] to present evidence that his
circumstances materially and substantially changed in a manner
that would warrant a modification of the support order. [23
Pa.C.S. § 4352(a)]. [Father] failed to provide any
documentation in support of his testimony that he lost his
job with Bayada due to his refusal to relocate. . . . [G]iven
the history of this case and the issues of credibility, this
[c]ourt fully adopts the Hearing Officer’s recommendation
that [Father]’s earning capacity remained unchanged and
that his modification of the support order be denied.
Id. (emphasis added).
We are bound by the credibility determinations of the trial court. The
fact-finder did not find Father’s testimony regarding his changed
employment status to be credible. Additionally, the record supports the trial
court’s findings as Father failed to present any evidence to corroborate his
testimony, and, in fact, his own wage statements contradicted his testimony.
Accordingly, we conclude that the trial court did not abuse its discretion
when it determined that Father failed to present evidence of a material and
substantial change.
We further note that whether Father left his employment voluntarily or
his employer fired him for cause is of no consequence. In either scenario,
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Father would not qualify for a support modification pursuant to Pa.R.C.P. No.
1910.16-2, which states, in pertinent part, that there “generally will be no
effect on the support obligation” if a party voluntarily assumes a lower
paying job, quits a job, leaves employment, or is fired for cause. Pa.R.C.P.
No. 1910.16-2(d)(1).
Father next argues that his incarceration for failing to pay child
support jeopardized his actual earnings and earning capacity, which is
competent evidence of a material and substantial change in circumstances.5
Father’s Brief at 16. We disagree.
The legislature has specifically excluded incarceration for nonpayment
of child support as a qualifying event for modification of a child support
award. The law in Pennsylvania is clear that “[i]ncarceration, except
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5 In his brief, Father also argues that the trial court erred when it found him
in contempt, set an unreasonably high purge amount, and failed to consider
Father’s ability to pay the purge amount when it entered the October 4,
2016 Contempt Order. See Father’s Brief at 25-36. The October 4, 2016
Contempt Order was a final, appealable Order. See Glynn v. Glynn, 789
A.2d 242, 246 (Pa. Super. 2001) (en banc) (stating that “[a]n order finding
a party in contempt for failure to comply with a prior order of court is final
and appealable if sanctions are imposed”). As such, the appropriate time to
raise these issues was within 30 days of the entry of the Contempt Order.
See Pa.R.A.P. 903(a) (appeal must be filed within 30 days after entry of the
order from which the appeal is taken). Father did not appeal the October 4,
2016 Contempt Order in a timely manner, thus, he waived his right to do so
at this time. See In re D.S., 979 A.2d 901, 905 (Pa. Super. 2009)
(concluding that when grandmother did not appeal the removal of children
from her home in a timely manner, she waived her right to do so at a later
date). Accordingly, we decline to address these arguments.
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incarceration for nonpayment of support, shall constitute a material and
substantial change in circumstance that may warrant modification” of a
support order. 23 Pa.C.S. § 4352(a.2) (emphasis added). Moreover, as the
trial court aptly acknowledged, Father was eligible for work release during
his incarceration. See Trial Court Opinion, dated 7/14/17, at 8.
Accordingly, the trial court did not abuse its discretion when it determined
that Father’s incarceration for nonpayment of child support did not constitute
a change in circumstances.
Father further argues that he was searching for employment and was
unable to obtain employment as a result of his contempt conviction
appearing in his background check. The trial court did not find this portion
of Father’s testimony to be credible. Since we are bound by the trial court’s
credibility determinations, we find that the trial court did not abuse its
discretion when it determined that Father’s earning capacity remained
unchanged after incarceration for failure to pay child support.
In conclusion, the trial court did not abuse its discretion when it
concluded that Father failed to present competent evidence of a substantial
and continuing change in circumstance that warranted a modification of his
child support obligation and accordingly denied Father’s Petition for
Modification of the Support Order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2018
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