Koepfer, M. v. Koepfer, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW F. KOEPFER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

MARIA KOEPFER

Appellee No. 1761 MDA 2013

Appeal from the Order Entered September 27, 2013 In the Court of Common Pleas of Dauphin County Domestic Relations at No: 1466 CR 12

BEFORE: OTT, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED AUGUST 07, 2014 September 27, 2013 order directing him to pay $3,767.02 per month for child support and alimony pendente lite1 and $106.00 per month for arrears. We affirm.

Husband and Appellee, and separated in 2012. They have two minor daughters. Wife commenced this litigation with a complaint for support filed on August 29, 2013. For ____________________________________________

1 Of that amount, $2,072 is allocated to child support and $1,695 as alimony pendente lite. As no divorce decree has been entered, the trial y insofar as it pertains to child support. Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super 1996).

child support, we have jurisdiction to review them.

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n while Husband worked in sales and traveled frequently. Husband worked for offered conflicting testimony on whether Husband left GE voluntarily or was fired. Husband claims he left GE in order to reduce his travel requirements

ave immediately because he planned to work for a competitor. Wife claims GE terminated Husband for cause because he was not devoting enough time to his job and failing to meet his commission goals.

In his last three years at GE, Husband earned $150,000, $198,000, and $152,000, respectively. His base salary at Agra was $87,000, and Husband claimed he was not eligible to earn any commission until 2015, separation, Wife obtained work as a dental assistant earning $15.00 per hour for 29 hours per week.

After a September 6, 2013 hearing, the trial court imputed to Husband an earning capacity of $166,000 per year, based on the average of his final three years at GE. The trial court also found that Husband earned $4,000 per year in eBay sales. Based on an annual gross income of $170,000 attributed to Husband, the trial court entered the aforementioned order.

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Husband filed this timely appeal on October 2, 2013. He raises five issues for our review:

I.

previous three (3) years when he worked for a different employer?

II. Wheth income by including a hobby as a source of a second income where the facts presented at the de novo hearing establish that [Husband] has more expenses from his hobby than he does income?

III. Whether the trial court erred when it improperly calculated -existent

that [Husband] provided testimony which established that he does not and will not receive any bonuses in 2013 and [Husband] provided testimony that he does not anticipate any potential bonuses until at least 2015?

IV. Whether the trial court erred when it failed to address the tax return issue from 2012 where [Wife] and [Husband] resided together for a majority of the year and there would have been a financial benefit if the parties filed jointly as

resulting in a larger income for [Husband] and his children for support purposes?

V. Whether the trial court erred when it improperly imputed

portion of the 2013 year full time at a rate of fifteen ($15) dollars per hour. Instead, the trial court improperly

twenty-nine (29) house [sic] per week at fifteen ($15) dollars per hour?

-5. strictures:

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When evaluating a support order, this Court may only

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. In addition, we note

K.J.P. v. R.A.P., 68 A.3d 974, 978 (Pa. Super. 2013).2 Furthermore, this Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009). weight of the evidence, this Court must defer to the trial judge who presided

Id. assigning him an earning capacity based on his final three years with GE. Rule 1910.16-2 of the Pennsylvania Rules of Civil Procedure governs support and income calculations. The trial court relied on Rule 1910.16-2(d), which provides in relevant part as follows: ____________________________________________

2 Likewise, we review an award of alimony pendente lite for abuse of discretion. Strauss v. Strauss, 27 A.3d 233, 236 (Pa. Super. 2011), appeal granted, 41 A.3d 1286 (Pa. 2012), appeal discontinued, (March 27, 2013).

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(d) Reduced or Fluctuating Income.

(1) Voluntary Reduction of Income. When either party voluntarily assumes a lower paying job, quits a job, leaves employment, changes occupations or changes employment status to pursue an education, or is fired for cause, there generally will be no effect on the support obligation.

(2) Involuntary Reduction of, and Fluctuations in, Income. No adjustments in support payments will be made for normal fluctuations in earnings. However, appropriate adjustments will be made for substantial continuing involuntary decreases in income, including but not limited to the result of illness, lay-off, termination, job elimination or some other employment situation over which the party has no control unless the trier of fact finds that such a reduction in income was willfully undertaken in an attempt to avoid or reduce the support obligation.

(4) Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that

education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. 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. 1910.16-2(d).

In Kersey v. Jefferson, 791 A.2d 419 (Pa. Super. 2002), the husband quit a $70,000 per year job and took a $32,000 per year job in order to attend medical school. Id. at 422. Given the reduction in income,

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the husband sought a modification of his child support obligation. Id. The

rt obligation to account for a

Id. This Court affirmed, concluding the husband did not demonstrate any effort to mitigate the loss of income when he changed jobs. Id. at 423. Further, we reasoned that a support obligation is similar to a mortgage, car payment, or other fixed employment status. Id. at 424. The husband

Id.

In Grigoruk v. Grigoruk, 912 A.2d 311 (Pa. Super. 2006), however, this Court noted that a trial court can reduce the support obligation of a parent fired for cause where the parent makes an effort to mitigate the lost income. Id. at 313. The mother in Grigoruk conducted a six-month job search and eventually took the only job she was offered, resulting in an reduction in salary. Id. at 312. During the six-month job search she applied for numerous jobs whose salary would have been commensurate with her former earnings. Id. Upon accepting new employment, the mother ended her job search so as not to jeopardize her new employment. Id. at 315. Under these circumstances, we concluded the trial court did not abuse

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income. Id. at 314; see also Ewing v. Ewing, 843 A.2d 1282 (Pa. Super. efforts to mitigate lost income after he was fired).

Instantly, the parties offered conflicting testimony on the reason for

and claimed he chose to take the Agra credible, and determined that Husband was fired for cause. We are bound record. Mackay, 984 A.2d at 533. The evidence on this point is limited to the testimony the parties offered at the hearing. As such, we find little to confirm or refute eit Husband only has custody of the daughters every other weekend, and the to spend time with the daughters since his departure from GE. We therefore determination. under Rule 1910.16-2(d)(1), as that subsection applies to parties who voluntarily assume a lower paying job or are fired for cause. Husband argues, without citation to authority, that the trial court should assess his earning capacity based on his new job because he took that job to spend

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more time with his children. Since the trial court d explanation for changing jobs, and since nothing in the record undermines

In addition, Husband offered no evidence of any effort to mitigate lost income. Husband asserts that his previous job paid more because he was based in Washington, D.C. He also asserts that high-paying jobs are less plentiful in the Harrisburg area. Nonetheless, Husband failed to make a record of the extent of his job search, including how long he searched for his current job, how many applications he sent out, etc. In this regard, this case is easily distinguishable from Grigoruk, in which the mother took the only job offer she received after an extensive sixfirst assertion of error lacks merit. imputing $4,000 per year in earning capacity to Husband based on his eBay sales. Husband argues the law forbids this result, citing Rule 1910.16-2(d)(4), which pro capacity that is greater than the amount the party would earn from one full-

-2(d)(4). that he reported $4,000 in hobby income from eBay sales on his 2012 tax

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sales of over $14,000 through the first five months of 2013.3 Husband argues that any income from his eBay dealings is more than offset by the cost of items he has bought and been unable to sell.

The trial court reasoned that the eBay income was not imputed, but based on evidence that Husband earned $4,000 from eBay sales in 2012 and perhaps substantially more in 2013. Thus, the court reasoned it did not impute a second income to him in violation of 1910.16-2(d)(4). We agree. Rule 1910.16-

-2(a)(2). While Husband argues his eBay dealings are merely a hobby, he does not dispute that he devotes substantial time to acquiring items and reselling them at a profit, both on eBay and at several flea market booths he rents. Husband has testified that he intends to cease his eBay dealings, because it has become too much

For his third argument, Husband asserts the trial court erred in including commission in its computation of income, inasmuch the record contains uncontradicted evidence that he will not receive a commission until

at least 2015. This argument lacks merit because Husband has ____________________________________________

3 Husband apparently shut down the account after Wife obtained this information.

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capacity reflective of the average of his actual income between 2010 and 2012; it did not in Trial Court Opinion, 12/12/13, at 6-7.

Husband next argues the trial court erred in declining to direct the parties to file a joint 2012 tax return. Wife filed her 2012 tax return separately, and Husband claims filing a separate 2012 tax return resulted in $12,000 in tax liability as opposed to the $3,000 in tax liability he would incur with a joint tax return.4

The trial court declined to direct the parties to file a joint return, finding no legal authority for such action. Further, the trial court reasoned that forcing Wife to file a joint return would expose her to joint and several liability for all taxes, interest and penalties for the year of the filing. Finally, the trial court reasoned that, to the extent Wife dissipated assets by filing a separate tax return, that issue should be addressed in an equitable distribution proceeding rather than a support action.

Husband cites no law authorizing the trial court to force Wife to file a

joint tax return, and our own research has uncovered none. But see ____________________________________________

regarding the status of the tax liability for his 2012 return and he hopes to file an amended return so as to reduce that liability. N.T. Hearing, 9/6/13, at 16-17.

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generally, Melvin B. Frumkes and Robert S. Steinberg, Can and Should a State Court Order an Unwilling Spouse to File a Joint Federal Income Tax Return?, 25 J. Am. Academy of Matrimonial Law 115 (2012). Furthermore, we believe the trial court offered persuasive reasoning in support of its error lacks merit. that the trial court should have assigned Wife income based on a full-time schedule, at least for the summer months, rather than 29 hours per week. hours per week during the school year because she has custody of the evenings for their various extracurricular activities. Wife admitted she worked full-time during the summer of 2013.

Rule 1910.16-

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-part time during approximately nine months of the year while her daughters are in school, we cannot conclude that the trial court abused its discretion in

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Sin

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/7/2014

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