Husick, S. v. Husick, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHAWNA L. HUSICK, NOW SHAWNA L. IN THE SUPERIOR COURT OF
BAMBLING PENNSYLVANIA
Appellee
v.
SCOTT E. HUSICK
Appellant No. 1075 WDA 2015
Appeal from the Order Dated June 17, 2015
In the Court of Common Pleas of Bedford County
Civil Division at No: 180-S for the year 2007
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 08, 2016
Appellant, Scott E. Husick (“Father”), appeals from the June 17, 2015
order of the Court of Common Pleas of Bedford County denying his de novo
appeal for a reduction in his child support obligation. Upon review, we
affirm.
The trial court summarized the background information as follows:
Subsequent to the hearing [Father], Scott E. Husick,
provided the Court with his amended tax return. After the
hearing on March 26, 2015, [Mother], Shawna L. Husick, signed
a release allowing [Father], Scott E. Husick, to deduct [C]hild on
his 2014 return. As noted above, [Father] provided his amended
2014 return. A review of this amended return along with his
original return produces the following: [Father]’s gross income
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*
Former Justice specially assigned to the Superior Court.
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for 2014 was $42,463.00. [Father]’s deductions from income
included itemized deductions of $27,269.00. This figure includes
$11,402.00 for work related mileage. Receiving credit for the
tax exemption for himself and [C]hild leaves [Father] with a
Federal tax liability of $728.00. Accordingly [Father], Scott E.
Husick, had a net annual income after Federal taxes of
$41,735.00. After reducing [Father]’s income for Federal and
state income taxes leaves a total net income after taxes of
$40,738.00. This is actually in excess of the $34,756.44 net
income computed in the conference order. The Court believes
his 2014 income is the most accurate account of his income.
....
[Mother], Shawna L. Husick, was found at conference to
have monthly earnings capacity of $1,042.09; essentially
minimum wage. [Mother] has not been employed since June of
2013. In addition to [C]hild who is the subject of the present
support action, [Mother] has a child born in 2013 to her present
boyfriend. [Mother]’s last employment was at a store where she
earned $13.50 an hour as an office manager. [Mother] left this
job over harassment by a supervisor. [Mother]’s previous
employment was for a software sales company earning $9.00 an
hour. Prior to that between 2007 and 2009 [Mother] worked at
the Department of Labor. This job was in accounts receivable
and she earned $2,455.00 a month. However, her hours were
reduced at that job which reduced her income, and further she
was required to commute from her residence in Bedford County
to Altoona. There was no indication that [Mother] possesses any
special skills or advanced education.
Trial Court Opinion (T.C.O.), 6/17/15, at 1-4.
On appeal, Father raises three issues:
1. Did the trial court commit an abuse of discretion or an error
of law by denying Appellant-Father’s de novo appeal by rejecting
his request for a downward deviation from the guidelines support
amount in consideration of his work-related expenses?
2. Did the trial court commit an abuse of discretion by denying
Appellant-Father’s de novo appeal by rejecting his request for a
downward deviation from the guidelines support amount in
consideration of his historical expenditures provided directly for
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the child’s benefit, and in consideration of his substantial
physical custody?
3. Did the trial court commit an abuse of discretion by imposing
only a minimum wage earning capacity on Appellee-Mother,
whose work history involves employment with wages greater
than the federal and state minimum wage?[1]
Father’s Brief at 4.
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.
Mencer v. Ruch, 928 A.2d 294, 297 (Pa. Super. 2007) (citation omitted).
“[T]he amount of a support order is largely within the discretion of the trial
court,” and “[a] finding that the trial court abused its discretion must rest
upon a showing by clear and convincing evidence.” Kessler v. Helmick,
672 A.2d 1380, 1382 (Pa. Super. 1996) (citation omitted).
In determining whether to award him a downward deviation from the
support guidelines, Father argues the trial court should have considered his
work-related expenses, such as mileage, tools, and specialized clothing,
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1
In his brief, Father combines his first and second issues. Father’s Brief at
4. For ease of disposition, we will address Father’s arguments pertaining to
deductions and arguments pertaining to his physical custody of Child
separately.
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asserting these expenditures are unavoidable for him to maintain his
employment. Father also argues the trial court should have considered
items he purchased based on Child’s needs, such as clothing and school
supplies, “that would normally be considered within the scope and purpose
of child support.” Father’s Brief at 12. Father asserts the trial court erred,
alleging he was requesting a downward deviation from the support
guidelines and “not necessarily” a credit against his net monthly income for
purposes of calculating his support obligation. Id. at 13. Father further
argues “the historically consistent and significant expenditures directly to
and for [C]hild’s benefit should have been considered by the trial court in
favor of warranting a downward deviation from the guidelines support
amount.” Id.
The trial court computed Father’s support obligation using his 2014
income. The trial court did not allow Father a downward deviation or credit
on his net come, holding the following:
[Father] is a union carpenter and obviously the amount of
his work varies by the season of the year. Further, using his tax
return also captures his unemployment income for the year.
Pa. R.C.P. 1910.16-2[(d)(3)][2] provides support orders for
seasonal employees, such as construction workers should
ordinarily be based on a yearly basis. Given that the [Father]’s
employment has not changed in 2015, his 2014 tax return would
appear to be the most accurate description of his income. As the
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2
“Seasonal Employees. Support orders for seasonal employees, such as
construction workers, shall ordinarily be based upon a yearly average.”
Pa.R.C.P. No. 1910.16-2(d)(3).
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[Father]’s net income was reduced for his mileage driven to
work, it would be improper to give any further credit. The same
logic applies to the request for a reduction for union dues,
clothing, and tools. These deductions are already reflected in his
2014 taxes.
T.C.O., 6/17/15, at 2-3.
Father fails to cite any authority to support his arguments that he
should be granted a downward deviation from the support guidelines, or that
the trial court’s calculations were the result of a misapplication of the law or
abused its discretion. Accordingly, Father is not entitled to relief on this
issue.
Father next argues the trial court erred in concluding he did not qualify
for the presumptive reduction in child support provided for in Pa.R.C.P. No.
1910.16-4(c)(1).3 Father acknowledges he fell fifteen days short of having
Child for forty percent of the overnights between January 2014 and
December 2014 as required by Rule 1910.16-4. However, he alleges the
trial court should have granted him the reduction considering the “totality of
the circumstances.” Father’s Brief at 13-14.
Father, again, has failed to cite any authority to support his assertions.
Noting that Father fell fifteen days short of having Child for forty percent of
the overnights in 2014, and therefore did not fulfill the plain text
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3
“(c) Substantial or Shared Physical Custody. (1) When the children
spend 40% or more of their time during the year with the obligor, a
rebuttable presumption arises that the obligor is entitled to a reduction in
the basic support obligation to reflect this time. . . .” Pa.R.C.P. No.
1910.16-4.
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requirement of Rule 1910.16-4, the trial court denied Father the
presumptive reduction. The trial court has not abused its discretion, and
Father is not entitled to relief on this issue.
Father next alleges the trial court abused its discretion by failing to
assess Mother with an earning capacity higher than minimum wage. Father
argues Mother has a greater earning capacity than minimum wage, relying
on the facts that Mother has a bachelor’s degree in communications, work
experience in advertising sales, accounts receivable, and management,
worked during the parties’ separation, held jobs earning $2,612.00 per
month, $2,455.00 per month, $9.00 per hour, and $13.50 per hour, and had
voluntarily left the work force in 2012. Father’s Brief at 16-17.
Age, education, training, health, work experience, earnings
history and child care responsibilities are factors which shall be
considered in determining earning capacity. . . . Determination
of what constitutes a reasonable work regimen depends upon all
relevant circumstances including the choice of jobs available
within a particular occupation, working hours, working conditions
and whether a party has exerted substantial good faith efforts to
find employment.
Pa.R.C.P. No. 1910.16-2(d)(4).
In addition to the facts listed by Appellant, the trial court also
considered that Mother left her last job due to sexual harassment by her
supervisor as well as the following:
Support orders are based on earnings [sic] capacity rather than
actual income. [Mother] has sated having a two year old and a
six year old at home; the cost of child care would be significant.
[Mother] stated that her best choice for employment would be in
Blair County which would include a lengthy commute. Given the
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travel time involved, the children would require both day care
and after school care. [Mother], Shawna L. Husick, testified she
did not believe that even if she obtained similar employment to
that she previously had, it would not be cost effective. Given the
two children in the home there could be an application of the
nurturing parent doctrine. However, only one of these children
is subject to this order. [Mother] currently lives with her
boyfriend and there is a second income in her home. More
persuasive is the fact there is little to show she has skills or
training that support she could expect to earn more than
minimum wage. Some of her employment history was at a rate
greater than minimum wage but that may well have been
fortuitous circumstances. Based on the record a minimum wage
earning capacity is appropriate.
T.C.O., 6/17/15, at 3-4 (citations omitted).
Father, again, does not cite any authority in support of his argument
and does not cite any facts not considered by the trial court in assessing
Mother’s earning capacity. As such, Father has not provided any evidence
the trial court misapplied the law or abused its discretion. Accordingly,
Father is not entitled to relief on this issue.
As Father is not entitled relief on any of his issues raised, we affirm
the June 17, 2015 order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2016
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