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HomeMy WebLinkAbout95-1177 Support TONYA L. KENDALL IN THE COURT OF COMMON PLEAS OF Appellee CUMBERLAND COUNTY, PENNSYLVANIA V. PACSES Member No. 1348000026 PACSES Case No. 084000045 DAVID C. SWEIGARD Docket - 1177 of 95 Appellant IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Before HOFFER, P.J. OPINION HOFFER, P.J.: A hearing was held on October 4, 2001 to decide whether the defendant's (David C. Sweigard) changed circumstances warrant a modification of his child support obligation. The defendant appeals from an order of this Court denying his petition. On appeal the defendant complains that: 1. "The Trial Court erred in computing the Defendant's child support obligation where it based that computation on his prior earnings rather than his present actual earnings where appellant, in good faith and without the intent to circumvent his support obligation, reduced his prior earnings to pursue an educational goal that will enhance future income potential at the expense of present earnings and inure to the benefit of the minor child." STATEMENT OF FACTS In February of 2001, the defendant requested a reduction in his child support obligation. He is obligated to pay $427.28 each month for the maintenance and care of his eight-year-old daughter. At the time of the hearing the defendant had also accrued child support arrearages of $1,786.89. (N.T. at 35.) This amount includes arrearages accrued from before February 2001. The defendant has been paying $5.00 a week to clear his arrearages. (N.T. at 36.) He petitioned the Court to adjust his child support payments to reflect his reduced income due to a change in his employment status. The defendant is currently working part-time, approximately 24 hours a week at the rate of $15.00 dollars per hour as a dock worker for Consolidated Freight. (Notes of Transcript, Hearing, October 4, 2001, at 5)(hereinafter "N.T. at __" ). Until February of 2001, the defendant had been employed by Exel Logistics as a supervisor for second shift. The defendant worked at Exel Logistics for approximately five years and had an annual salary of $30,000. (N.T. at 8). While working for Exel Logistics the defendant began taking classes at Harrisburg Area Community College and was reimbursed by Exel for up to two classes per semester. (N.T. at 9, 14.) At the end of his schooling the defendant hopes to find a job as a computer engineer and estimates his starting salary will be approximately $45,000 per year. : In February of 2001, the defendant's position at Exel Logistics was downsized. (N.T. at 8). Exel offered to continue to employ the defendant and offered him several options. The defendant was offered a position as a supervisor at two other Exel facilities. (N.T. at 23. ) Both positions would have required the defendant to relocate and were, therefore, not acceptable to him. (N.T. at 23.) He was also offered a position as a forklift operator at the Camp Hill 2 facility. (N.T. at 24.) He could choose to work on either the first, second or third shifts. (N.T. at 24-26.) Accepting a position as a forklift operator would have meant a demotion and a pay cut to $12.95 - $13.01 per hour for the defendant. However, the defendant would have been able to work two to four hours of overtime each week, and keep his benefits, including the tuition reimbursement. (N.T. at 26.) He chose not to remain employed at Exel and in February he began collecting unemployment. ~ (N.T. at 13.) On August 1, 2001, the defendant began working at Consolidated Freightways in a position substantially similar to the position he refused at Exel Logistics at a substantially similar salary. (N.T. at 5.) The only significant difference is that the position at Consolidated Freightways is part time. DISCUSSION Setting the amount of child support a parent is obligated to pay is largely within the discretion of the trial court. Mooney v. Doutt, 766 A.2d 1271, 1273 (2001). In determining a parent's ability to pay, the focus is on the person's earning capacity rather than on the person's actual earnings. Id. Earning capacity is the amount the person could realistically earn under the circumstances, considering his age, health, mental and physical condition, and training. Diehl v. Beaver, 444 Pa.Super. 91, 663 A.2d 232 (1995). There are exceptions to the earning capacity rule; for example, if income is reduced through "illness, layoff or some other factor over which the parent has no control". Beegle v. Rasler, 395 Pa. Super. 174, 576 A.2d. 1100, 1102 (1990). The courts have 3 also recognized "a parent's legitimate desire to forgo a lucrative present employment situation in hope of establishing a rewarding future career." Id. The defendant argues that his support obligation to his eight-year-old daughter should be reduced because he desires to work part time and attend Harrisburg Area Community College and then Penn State to finish his degree in computer engineering. In his brief, he relies upon several cases to support his contention that his child su~pport obligation should be reduced while he works part time and attends school. However, the defendant's situation is factually distinguishable from the cases upon which he relies. In MaQuiddy v. MaQuiddy a young lawyer left a salaried position to open his own practice which reduced his income. 238 Pa. Super. 390, 358 A.2d 102 (1976). The Court determined that this was sufficient reason to reduce the father's support payment to reflect his actual income rather than his earning potential. Id. In Roberts v. Bockin the mother was advised by a physician to quit her job. 315 Pa. Super. 52, 461 A.2d 630 (1983). The Court found that there was sufficient evidence to support a finding that the mother had,.not attempted to elude her parental support responsibilities and that her actual earnings were the proper measure of her ability to pay. Id. Finally, the defendant relies upon Tilton v. Tilton, 49 Cumb. 65 (1999)(Oler, J.). In Tilton, the mother was enrolled in a graduate program to become a nurse practitioner while working part time as a nurse. Id. The Court determined that her actual earnings, rather than her earning power, were the proper gauge while she pursued her master's degree. 4 Id. Prior to enrolling in graduate and throughout graduate school the mother had been employed part time. The defendant's situation is distinguishable from those described above. Here, the defendant, unlike the defendant in MaQuiddy, is not a professional or an expert in a particular field attempting to start his own business. Next, while the defendant was legitimately laid off from his supervisor position at Exel Logistics, he was offered another fulltime position as a forklift operator. The forklift operator position would have allowed him to work second shift, retain his education benefits, make $13.00 per hour with the possibility of two to four hours a week of overtime, and attend school during the day. While this is not equivalent to his previous salary, it is more than the defendant is currently earning working part time. He declined to accept this position, indicating to the Court that this position would mean a demotion and a pay cut, as well as not allowing him to complete school assignments while at work. (N.T. at 9-10). Presently, the defendant is employed part time as a dock worker at a rate of $15.00 per hour. His present position is a substantially similar position for a substantially similar wage to the fulltime position he declined to take from Exel Logistics. Additionally, while working fulltime, 45-50 hours per week for Exel Logistics as a supervisor (N.T. at 25), the defendant was attending school fulltime. (N.T. at 17). The defendant now petitions this Court to reduce his obligation so he can pursue his educational goals while working part time. However, the defendant was pursuing his educational goals and working fulltime 5 on second shift when he worked at Exel Logistics.~ While the defendant has a right to pursue an education, he also has an obligation to support his daughter. In the past the defendant has worked fulltime while he attended school. The Court sees no reason why he cannot continue to do so. Therefore, the defendant's child support payments were calculated as if he continued to work full time for Exel Logistics earning $13.00 per hour. (N.T. at 33.) ~ The Court is not persuaded by the defendant's argument that he could not take the fulltime forklift operator position because he would not be able to study while at work. (N.T. at 9-10). Mr. Durff from Exel Logistics testified at the hearing that doing school work on the job was against company policy and that the defendant was not permitted to use company time to pursue his studies. (N.T. at 22.) 6