T.M.W. v. N.J.W.

227 A.3d 940

T.M.W.

v.N.J.W., Appellant

No. 817 MDA 2019

Superior Court of Pennsylvania.

Submitted December 11, 2019

Filed January 31, 2020

Reargument Denied March 31, 2020

Gregory T. Moro, Danville, for appellant.

Leslie W. Bryden, Bloomsburg, for appellee.

BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.^*

OPINION BY COLINS, J.:

Appellant, N.J.W. (Father), appeals from an order of the Court of Common Pleas for the 26th Judicial District, Montour County Branch (trial court) that reduced his obligation to pay child support to T.M.W. (Mother) from $2,201.62 per month to $1,558.60 per month. For the reasons set forth below, we affirm.

Mother and Father were married on November 5, 2005, separated in December 2009, and divorced in April of 2011. They have one child, a daughter who was born in November 2006 (Child). Father was at the time of the divorce, and still is, a physician at Geisinger Medical Center. Mother is a nuclear medicine technologist. As part of the parties' marital settlement agreement, Father agreed to pay Mother $2,800 per month in child support, subject to increase or decrease based on a substantial change in circumstances. At that time, Father and Mother shared equal custody of Child.

In 2018, the child support was reduced to $2,201.62 per month. In March 2018, Father filed a petition to modify custody. On September 14, 2018, the trial court issued an order, pursuant to a stipulation of the parties, modifying custody to give Father custody of Child 18 of every 28 days during the school year and every other week during the summer, and give Mother custody of Child 10 of every 28 days during the school year and every other week during the summer. Trial Court Custody Order, 9/14/18.

On October 3, 2018, Father filed the instant petition to modify child support, asserting that child support should be terminated because he had primary physical custody of Child. On February 21, 2019, the Special Master held a hearing on the petition at which Father, Mother, Mother's boyfriend (J.W.), whom she married after the hearing in this matter, and a vocational expert witness testified.

Father testified that his salary as a radiologist at Geisinger is $530,000 per year, but that in 2018 his income was approximately $130,000 higher because additional radiology work was available that will no longer be available after 2018. N.T. at 65-66, 68-69. Father testified that he pays Child's private school tuition and pays for Child's extra-curricular activities. Id. at 72-73. Father testified that he pays Child's health insurance and paid for Child's braces. Id. Father's last 2018 pay stub was admitted in evidence at the hearing and showed that his 2018 gross income was $678,900.90.

Mother testified that she lost her fulltime nuclear medicine technologist job in 2015, when her employer closed the department where she worked, and only had part-time work and lower-paying jobs in the period from 2015 through 2018. N.T. at 15-17, 26-27, 29, 82-84. Mother testified that she applied for but was unable to obtain full-time employment as a nuclear medicine technologist within a 1 to 1¹ /2 hour radius of Danville, where she and Father both live, until January 2019, when she was hired by Geisinger fulltime. Id. at 16, 25-26, 33-34, 82-83, 92-95. At her new full-time nuclear medicine technologist position, Mother is paid $32.81 per hour and works a 40-hour week. Id. at 16; Court Ex. 2 Employment Verification Questionnaire. Mother testified that the mortgage payment for her house is $1,850 per month (including taxes) and that the house was bought when the parties separated because Father agreed to pay the down payment and provide child support so that Child would have a good home with Mother near where Father lives. N.T. at 8-9, 36-37, 84-85. Mother also testified that she could not afford to live there without child support from Father. Id. at 84-85. Mother lives in the house, which is in her name alone, with J.W. and their seven-year old daughter, and Child when Mother has custody. Id. at 8-11. Mother testified that she has approximately $40,000 in credit card debt from the period when she did not have a full-time job. Id. at 24-25. Mother testified that Father pays Child's private school tuition because he is the one who wants her to attend private school and that she does not pay for Child's extra-curricular activities. Id. at 19-20, 85. Mother testified that Father pays Child's health insurance and all co-pays and paid for Child's braces. Id. at 30-31.

The vocational expert testified that Mother's earning capacity as a nuclear medicine technologist in central Pennsylvania is $85,285 per year, but admitted that he did no labor market survey and made no determination whether there were job openings in that field in central Pennsylvania in 2015 to 2018. N.T. at 54-55, 60-61. Mother and J.W. testified that J.W. pays utilities for the house, repairs, and some of the household's food expense, and provides Mother's and their daughter's health insurance. Id. at 10-12, 18, 43. J.W.'s gross income in 2018 was approximately $42,000.

The Special Master issued a report and a recommended support order requiring that Father pay $1,558.60 per month child support to Mother, effective February 1, 2019. The Special Master found that based on the parties' income and expenses, Father's child support obligation under the child support guidelines would be $1,948.25 per month, but recommended a 20% downward deviation to $1,558.60 based on the additional household income from J.W. Special Master's Report at 3. The Special Master's recommended support order further provided that the requirement that Father provide Child's health insurance continue in effect and that with respect to unreimbursed medical expenses, expense beyond $250 annually be paid 89% by Father and 11% by Mother.

Father filed exceptions to the Special Master's report and recommended support order. On May 6, 2019, the trial court issued an order, entered May 7, 2019, denying Father's exceptions and directing the parties to comply with the terms of the Special Master's recommended order. This timely appeal followed.

Father presents four issues for our review: 1) whether the trial court was required to terminate Father's child support obligation and award him child support; 2) whether the trial court erred in failing make its order effective as of the date that Father filed his petition; 3) whether the trial court erred in failing to allocate any of Child's private school tuition to Mother; and 4) whether the trial court erred in using Father's total 2018 income as his gross income. Appellant's Brief at 8-9.1

Our review of the trial court's order is limited to determining whether the trial court abused its discretion and whether there is insufficient evidence to support the order. Kimock v. Jones , 47 A.3d 850, 853-54 (Pa. Super. 2012) ; Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007).

When evaluating a [child] 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 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. 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.

Bulgarelli , 934 A.2d at 111 (quoting Arbet v. Arbet , 863 A.2d 34 (Pa. Super. 2004) ).

Father does not contend that he is entitled to termination of his child support obligations based on calculations under the child support guidelines, Pa.R.C.P. 1910.16-1 – 1910.16-7.² Rather, he argues that termination of child support and an award of child support to him are required under Colonna v. Colonna , 581 Pa. 1, 855 A.2d 648 (2004) and Saunders v. Saunders , 908 A.2d 356 (Pa. Super. 2006) because he has primary custody of Child. These arguments are without merit.

Colonna and Saunders both address the award of child support to a parent who has custody of the child less than half the time. In Colonna , the Pennsylvania Supreme Court held that a parent with primary custody may be ordered to pay child support to a parent with partial custody where the parent with primary custody has a far greater income than the parent with partial custody. 855 A.2d at 652. The Court held in such cases of great disparity in income where the primary custodial parent has the higher income,

the trial court should inquire whether the non-custodial parent has sufficient assets to provide the children with appropriate housing and amenities during his or her period of partial custody. We specifically note that the term "appropriate" does not mean equal to the environment the children enjoy while in the custodial parent's care, nor does it mean "merely adequate." The determination of appropriateness is left to the discretion of the trial court, upon consideration of all relevant circumstances.

Id.

In Saunders , this Court upheld the denial of child support to a non-custodial parent even though the custodial parent's income was over four times the non-custodial parent's income and the non-custodial parent had substantial debt. The Court held that the trial court did not abuse its discretion in denying child support because the non-custodial parent's financial problems were due to his choice to do volunteer work for over 3½ years, rather than seeking paying employment, and because awarding child support to the non-custodial parent would not necessarily benefit the children, given his intent to use it to finance improvements on a home in which he had no ownership interest and from which he could...