Pereira, A. v. Leite, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ALICIA M. PEREIRA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY P. LEITE : : Appellant : No. 679 EDA 2023

Appeal from the Order Entered February 15, 2023 In the Court of Common Pleas of Northampton County Domestic Relations at No(s): DR-0061519, PACSES: 395117648

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J. MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 27, 2024

Jeffrey P. Leite (Father) appeals from the order modifying the parties’ child support. Father argues that the trial court erred in calculating Father’s earning capacity, erred in calculating the costs of childcare, and erred by terminating the September 12, 2022 de novo hearing in order to remand the matter for further proceedings before a conference officer. We affirm.

We adopt the facts and procedural history set forth in the trial court’s opinion. See Trial Ct. Op., 5/5/23, at 1-8. Briefly, on June 12, 2019, Alicia M. Pereira (Mother) filed a complaint for child support. The trial court entered a support order by agreement on February 17, 2020. Father subsequently filed various petitions to modify his child support obligation, which the trial court granted. On January 27, 2022, the Domestic Relations Section filed a petition to review the existing support order because Father was no longer

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receiving unemployment compensation benefits. The parties appeared for a support modification conference on March 21, 2022. Subsequently, on April 11, 2022, the trial court entered an interim support order which calculated Father’s net earning capacity as $7,719 per month and set Father’s monthly support obligation at $2,886.00.

Father filed a timely demand for a de novo hearing, and the trial court held a hearing on September 12, 2022. At the hearing, Father testified that his 2021 tax return reflected his total income from his former employment at which he received a salary plus sales commissions. N.T., 9/12/22, at 13, 20-24. Father stated that after his employment was terminated, he looked for a new position until December of 2021. Id. at 25. Around that time, Father formed a new company with a business partner, and Father works for that new company full-time. Id. at 26. As of the date of the hearing, Father’s company had not yet generated any revenue and Father did not receive any compensation from his company. Id. at 28-29. Father also testified that when he and Mother were living together, they had hired an au pair to provide childcare. Id. at 13. At that time, none of the children were old enough to be in school full-time, but presently all three children attend school full-time. Id. at 12-14.

Mother testified that she did not have an au pair working for her between July 2020 and November 2021. Id. at 48. Mother explained that her previous au pair’s contract ended in July 2020, and the new au pair that she had hired through an agency could not travel to the United States until November 2021

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due to travel restrictions. Id. at 40, 49. During that time, the parties’ youngest child was in enrolled in daycare. Id. at 48. Mother could not recall if she informed Father about the arrival of the new au pair. Id. at 50.

The trial court decided to remand this case back to a conference officer to make new support calculations based on the updated evidence of the parties’ income (i.e., a new tax return). See id. at 51-52; see also Trial Ct. Order, 10/5/22. Following that conference, the trial court entered a support order on October 14, 2022, which calculated Father’s net earning capacity as $13,067 per month and set Father’s monthly support obligation at $3,402.00.

Father again filed a timely demand for a de novo hearing. The trial court held a hearing on November 21, 2022. Mother had been present in the courthouse, but she left before the hearing began and did not return. The trial court heard oral argument, but neither party presented additional evidence.

On February 15, 2023, the trial court entered an order adopting the October 14, 2022 support order as a final order. Father filed a timely notice of appeal. Father and the trial court complied with Pa.R.A.P. 1925.

Father raises three issues for our review, which we reorder as follows:

1. Did the trial court err and abuse its discretion as it failed to allow a full de novo hearing on . . . September 12, 2022, as it remanded the matter to the domestic relations conference officer who subsequently entered a final order in violation of Pa.R.C.P. 1910.11?

2. Did the trial court err and abuse its discretion in the calculation of [Father’s] income for the purpose of the entry of the child support order?

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3. Did the trial court err and abuse its discretion in the calculation of the childcare costs, and in particular, including the costs associated with an au pair as part of the order?

Father’s Brief at 5 (some formatting altered).

Failure to Hold a Full Hearing

In his first issue, Father argues that the trial court erred by failing to hold a full de novo hearing on September 12, 2022. Id. at 31-36. Specifically, Father claims that the trial court interrupted Father’s cross-examination of Mother for a sidebar discussion with counsel. Id. at 32-33. Following that sidebar discussion, which was not transcribed, the trial court ended the hearing and remanded the matter to a conference officer to recalculate the parties’ income. Id. at 33 (citing N.T., 9/12/22, at 51). Father notes that Mother failed to appear for the subsequent de novo hearing on November 21, 2022, and the hearing was conducted in her absence. Id. at 34. Father concludes that the trial court erred by ending the September 12, 2022 hearing before Father completed his cross-examination of Mother because he was not able to cross-examine her at the November 21, 2022 hearing.

Mother responds that Father waived this issue because Father consented to the trial court’s remand of this matter to a conference officer for further proceedings. Mother’s Brief at 13 (citing N.T. 9/12/22, at 51-52).

Before addressing the merits of this issue, we must determine whether Father has preserved this claim for review. This Court may raise this issue of waiver sua sponte. See Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007). “The issue of waiver presents a question of law, and, as such,

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our standard of review is de novo and our scope of review is plenary.” Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020) (citation omitted).

“In order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue.” Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008) (citation omitted and formatting altered); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal”). Additionally, if a party raised an issue before the trial court, but subsequently abandoned that issue, it is waived on appeal. See, e.g., Commonwealth v. Leaner, 202 A.3d 749, 765 n.3 (Pa. Super. 2019) (holding that the defendant waived his claim that the Commonwealth violated his right to a speedy trial guaranteed by the federal and state constitutions because although the defendant raised that issue in a pre-trial motion, he subsequently abandoned it and only pursued a claim that the Commonwealth had violated Pa.R.Crim.P. 600). Lastly, this Court has explained that “[a] party who has acquiesced in an order or judgment will not later be heard to challenge it.” Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999) (citation omitted).

Here, during the September 12, 2022 hearing, the trial court had the following exchange with the parties’ attorneys:

THE COURT: Can I see counsel up front[?]

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(Sidebar discussion held off the record.)

THE COURT: All right. Counsel and I interrupted what was about to happen here because my understanding with the updated -- with the updated tax return that was filed, it’s going to be necessary for this matter to go back before the conference officer for a recalculation based upon the new income information.

And with that I think the issues regarding income and whether there should be any changes, if any, relevant to the current order or relevance to what the order should be is going to be reviewed when this matter is brought back.

So I think the only real main issue right now that this court has to work on or work at is the issue regarding that additional care; specifically with the au pair.

Counsel, does everybody understand and agree with that?

[Father’s counsel]: I agree. If we’re going back, there is no point in hearing either side’s income at this point.

[Mother’s counsel]: I agree with that, Judge. N.T., 9/12/22, at 51-52 (some formatting altered).

The record reflects that Father consented to the trial court’s decision to remand the matter for another support conference and that he did not object to the trial court’s decision. See id. Therefore, Father has waived this issue on appeal. See Miller, 744 A.2d at 783; see also Pa.R.A.P. 302(a); Thompson, 963 A.2d at 475-76. Accordingly, Father is not entitled to relief on this claim.1 ____________________________________________

1 We note that in his brief, Father also argues that the trial court erred by failing to require that Mother attend the November 21, 2022 hearing and by not sanctioning her for her unexcused absence. Father’s Brief at 36. Father also contends that the trial court failed to comply with Pa.R.C.P. 1910.11(i), which requires the court to enter a final support order within sixty days of the (Footnote Continued Next Page)

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Calculation of Father’s Earning Capacity

In his second issue, Father argues that the trial court erred by calculating Father’s support obligation based on his 2021 income tax return and failed to properly assess Father’s earning capacity. Father’s Brief at 19-24; Father’s Reply Brief at 3-5. Specifically, Father contends that it was undisputed that Father lost his job in April of 2021 because of the COVID-19 pandemic, but the conference officer and the trial court calculated Father’s income for support purposes using his 2021 tax return which reflects Father’s salary before his employment was terminated. Father’s Brief at 20-21. Father claims that the trial court failed to adjust Father’s income following the termination of his employment as required by Pa.R.C.P. 1910.16-2(d)(2)(i). Id. at 21; Father’s Reply Brief at 3-5. Father additionally argues that the trial court failed to consider all of factors set forth in Pa.R.C.P. 1910.16-2(d)(4)(ii) when assessing Father’s earning capacity. Father’s Brief at 21-23.

Mother responds that that it was proper for the trial court to assess an earning capacity for Father based on his prior salary because Father did not “pursue and secure [new] employment commensurate with his ability, training, and earnings history, [and] instead voluntarily chose to become a partner in a ‘startup business’ in December of 2021,” which as of the

September 12, 2022 hearing had not generated any income. Mother’s Brief ____________________________________________

date Father filed his written demand for a de novo hearing. Id. at 35-36. Father failed to raise these issues before the trial court or in his Rule 1925(b) statement; therefore, they are waived. See Pa.R.A.P. 302(a), Pa.R.A.P. 1925(b)(4)(vii).

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at 5-6. Additionally, Mother contends that Father “failed to provide any credible testimony or other evidence that he could no longer earn income consistent with his 2021 federal income tax return[.]” Id. at 6 (formatting altered).

Our standard of review is as follows:

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.

Summers v. Summers, 35 A.3d 786, 788 (Pa. Super. 2012) (citation omitted).

Additionally, this Court has explained that

this Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first[]hand.

When the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province, as are credibility determinations, and the court is free to choose to believe all, part, or none of the evidence presented. This Court is not free to usurp the trial court’s duty as the finder of fact.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (citations omitted and formatting altered).

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We further note that an award of support, once in effect, may be modified via petition at any time, provided that the petitioning party demonstrates a material and substantial change in their circumstances warranting a modification. See 23 Pa.C.S. § 4352(a); see also Pa.R.C.P. 1910.19. The burden of demonstrating a “material and substantial change” rests with the moving party, and the determination of whether such change has occurred in the circumstances of the moving party rests within the trial court’s discretion.

Summers, 35 A.3d at 788-89 (some citations omitted and formatting altered).

It is well-established that

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 [or her] earning capacity, where there is a divergence, the obligation is determined more by earning capacity than actual earnings. Earning capacity is defined as the amount that a person realistically could earn under the circumstances, considering his [or her] age, health, mental and physical condition, training, and earnings history.

Mencer v. Ruch, 928 A.2d 294, 299 (Pa. Super. 2007) (citation omitted).

However, “[w]here a parent is fired for cause, . . . the court can consider reducing the parent’s child support obligation under Rule 1910.16[-2](d)(1) if the parent establishes that he or she attempted to mitigate lost income.” Grigoruk v. Grigoruk, 912 A.2d 311, 313 (Pa. Super. 2006) (citation omitted); see also Pa.R.C.P. 1910.16-2(d)(2)(i) (stating that “[t]he trier-of-fact shall adjust a party’s monthly net income for substantial continuing involuntary decreases in income due to an employment situation over which

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the party has no control, including, but not limited to, illness, lay-off, termination, or job elimination”).

Rule of Civil Procedure 1910.16-2 further provides, in relevant part:

(4) Earning Capacity.

(i) When a party willfully fails to obtain or maintain appropriate employment, the trier-of-fact may impute to the party an income equal to the party’s earning capacity.

• • * *

(ii) Factors. In determining a party’s earning capacity, the trier-of-fact shall consider the party’s:

(A) child care responsibilities and expenses;

(B) assets;

(C) residence;

(D) employment and earnings history;

(E) job skills;

(F) educational attainment;

(G) literacy;

(H) age;

(I) health;

(J) criminal record and other employment barriers;

(K) record of seeking work;

(L) local job market, including the availability of employers who are willing to hire the party;

(M) local community prevailing earnings level; and

(N) other relevant factors. Pa.R.C.P. 1910.16-2(d)(4).

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Based on our review of the record, the parties’ briefs, and the trial court’s opinion, we affirm based on the trial court’s analysis of this issue. See Trial Ct. Op. at 10-13.2 Specifically, we conclude that the trial court did not abuse its discretion by using Father’s 2021 tax return to calculate his income because Father failed to mitigate his lost income and instead stopped looking for a job and started a new business which, as of the September 12, 2022 hearing, had not provided Father with any income. See Mencer, 928 A.2d at 299; Grigoruk, 912 A.2d at 313. We also note that Father failed to present any evidence related to the Rule 1910.16-2(d)(4)(ii) factors to support his request to modify his child support obligation. See Summers, 35 A.3d at 788-89 (explaining that the party requesting modification has the burden of proof to demonstrate “a material and substantial change in their circumstances warranting a modification” (citations omitted)). Therefore, we ____________________________________________ 2 The trial court observed that at the September 12, 2022 hearing, Father’s

counsel indicated that he did not have any objections to the earning capacity that the conference officer assigned to him. See Trial Ct. Op. at 12-13 (citing N.T., 9/12/22, at 5). We disagree with the trial court to the extent the trial court suggests that Father acquiesced to earning capacity assigned to him in the February 15, 2023 order. Father’s counsel was referring to the April 11, 2022 interim support order. See N.T., 9/12/22, at 3-5; see also N.T., 11/21/22, at 12 (Father’s counsel indicates that he agrees with Father’s earning capacity as calculated in the April 11, 2022 order). After the trial court remanded the matter for another support conference, the conference officer assessed an earning capacity for Father that was higher than the one assessed in the April 11, 2022 order. Compare Support Guideline Calculation Form, 10/14/22, at 1 with Support Guideline Calculation Form, 4/11/22, at 1.

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discern no abuse discretion, and Father is not entitled to relief on this claim. See id. at 788; Mackay, 984 A.2d at 533.

Calculation of Childcare Expenses

In his final issue, Father argues that the trial court erred by including au pair costs in the support order. Father’s Brief at 25-30; Father’s Reply Brief at 6-7. Specifically, Father contends that Mother did not present any evidence that Mother needs the au pair (or any other form of childcare) to maintain appropriate employment. Father’s Brief at 26, 28. Father also claims that costs are not reasonable because Children are all attending school full-time, and Mother is employed full-time. Id. at 27, 29; Father’s Reply Brief at 6-7. Lastly, Father contends that the trial court failed to consider that Mother failed to notify Father that she was hiring an au pair in November 2021 and failed to promptly provide Father with documentation of the expenses associated with the au pair as required by Pa.R.C.P. 1910.16-6(a). Father’s Brief at 28-29.

Before addressing the merits of this issue, we must determine whether Father has preserved this claim for review. See Tucker, 939 A.2d at 346 (explaining that this Court may raise this issue of waiver sua sponte).

During the September 12, 2022 hearing, Father argued that Mother’s hiring of an au pair in November 2021 was not necessary to provide childcare. See N.T., 9/12/22, at 5-6, 46-47. Subsequently, at the November 21, 2022 hearing, Father’s counsel stated “I have no problem with childcare expenses from August 24, 2022 moving forward.” N.T., 11/21/22, at 12-13; see also

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id. at 14 (Father’s counsel confirmed that by “childcare expenses” he was meant the cost of the au pair).3

Here, Father agreed with the au pair costs going forward (subject to a petition to modify based on change circumstances). See id. at 12-14. Therefore, Father abandoned his claims that the au pair was not a necessary childcare expense. Accordingly, Father has waived this issue on appeal. See Leaner, 202 A.3d at 765 n.3; Miller, 744 A.2d at 783; see also Pa.R.A.P. 302(a). Also, to the extent that Father argues that the trial court failed to consider Mother’s violation of Pa.R.C.P. 1910.16-6(a), Father waived that issue because he did not raise it before the trial court. See Thompson, 963 A.2d at 475-76; Pa.R.A.P. 302(a).

For these reasons, we affirm the trial court’s order.

Order affirmed. Jurisdiction relinquished.

Date: 2/27/2024 ____________________________________________

3 We note that the notes of testimony from the November 21, 2022 hearing

are not included as part of the certified record, but they are included as part of Father’s reproduced record. Mother did not object to the accuracy of these notes of testimony. Because “their veracity is not in dispute, we rely on the copy contained within the reproduced record.” See C.L. v. M.P., 255 A.3d 514, 518 n.3 (Pa. Super. 2021) (en banc) (citation omitted).

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