In the Commonwealth of Pennsylvania either party can at any time file a Petition to Change the amount of support awarded by the Court if there is a significant change in the financial condition of one or both parties. A change could be a loss of income due to loss of a job, a serious illness or injury or some other life changing event.
In Wingard v. Wingard, 2018 Pa. Super. Unsub. LEXIS 1975, the Father appealed the Court’s order denying and dismissing his Petition for Modification of the Support Order. The Court not only denied his motion but actually increased his child support payment – a result that obviously displeased the Father.
The Father and mother had three children and the mother filed the original Complaint for Support and the Court awarded same in 2014. After this award there were numerous petitions filed for Contempt due to the Father being non-compliant in support payments. They fought over how much support was payable and that Father alleged that he had lost his job. There were a series of contentious hearings before the Hearing Officer regarding these issues.
Importantly the Hearing Officer found that the Father’s testimony regarding losing his job was not credible and ordered continued payment of child support, raising the amount payable plus arrearage. Further hearings resulted in judgments noting an almost ten-thousand-dollar arrearage ($10,000.00) and non-compliance regarding payment. The Father was unable to make payments and served one month of incarceration.
Father filed a Petition to Modify setting forth a series of exceptions to the Hearing Officers calculations – which were rejected by the Hearing Officer who recommended that the Petition be dismissed. The Father again filed exceptions and there was an oral argument before the Court. The trial Court denied Father’s Exceptions, denied Father’s Petition to Modify Support, and ordered Father to pay a monthly child support obligation of $1,789.00, plus arrearages.
Father timely appealed.
The appeal concerned whether the Father demonstrated a material change in circumstances to qualify for modifying child support. McClain v. McClain, 2005 PA Super 130, 872 A.2d 856, 860 (Pa. Super. 2005). Sets forth the appellate burden of proof – which simplified simply allows a Court to review the trial Court’s determination, and if there was no reasonable way the Court could have reached its decision, the appellate Court can overturn the decision. “A trial Court’s decision regarding the modification of a child support award will not be overturned absent an abuse of discretion, namely, an unreasonable exercise of judgment or a misapplication of the law.” Plunked v. McConnell, 2008 PA Super 282, 962 A.2d 1227, 1229 (Pa. Super. 2008).
Courts not only look to the actual wages to determine a child support obligation, but it is their job to see through the paychecks in order to determine what the real earning capacity of an individual is, and they may impute earning capacity if a party is earning below what a reasonably similarly situated individual could earn. Woskob v. Woskob, 2004 PA Super 37, 843 A.2d 1247, 1251 (Pa. Super. 2004) The Pennsylvania Support Guidelines state, in pertinent part, that there “generally will be no effect on the support obligation” if a party voluntarily assumes a lower paying job, quits a job, leaves employment, or is fired for cause.
The appellate Court in Wingard, Supra. ruled that they accepted the trial Court’s determination that the Father’s testimony was not credible and therefore they dismissed his case. The statute specifically excludes incarceration as a change in circumstances for the purpose of calculation of child support and therefore the Father did not present a change in circumstances such that he could have his child support lowered.