This is an appeal from an order reducing appellee’s spousal and child support obligation due to his change of employment. Based upon the record before this court, we do not find sufficient evidence to warrant a reduction in appellee’s support obligation.
The parties were married on September 25, 1973, and had one son born of their marriage on September 10, 1974.
In February of 1990, appellee filed a petition to modify his support obligation due to his change in employment and decreased earnings. On March 19, 1990, a hearing officer denied appellee's request for a reduction in support based on appellee having voluntarily accepted a lower paying job. Following appellee’s appeal to the trial court from the denial of his modification, on September 11, 1990, a hearing was conducted before the court and appellee’s support obligation was reduced to $250.00 for the months of February to May of 1990 and $200.00 a month thereafter. That portion of the order directing appellant to pay $250.00 monthly for the months of February through May was allocated as $100.00 for appellant and $150.00 for child and ended in May of 1990 pursuant to the parties’ divorce. All remaining obligations of support were entered solely for the support of the parties’ son. Appellant filed her timely notice of appeal to this court on September 28, 1990.
Appellant argues that the trial court erred in reducing appellee’s support obligation given that appellee voluntarily quit his job and that he presented insufficient evidence to support the modification order. With appellant’s latter contention, we agree.
Preliminarily, we note our standard of review in support matters.
A trial court has broad discretion concerning support payments and we will not reverse its decision unless there is insufficient evidence to sustain it or the trial court abused its discretion in fashioning the áward. More thanmere error of judgment is required; discretion is abused only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable.
Lesko v. Lesko,
Also, it is well-recognized that:
[w]hen modification of a child support order is sought, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified support order. The lower court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed conditions. We will not disturb a child support order unless the trial court, in determining the amount of support, has abused its discretion. Where the evidence is insufficient to sustain the order, an abuse of discretion will be found.
Com. ex rel. Sladek v. Sladek,
a parent may not intentionally reduce his or her earnings and then use the reduction in earnings to obtain a reduction in the amount of support which that parent must provide for his or her children; courts have traditionally viewed with suspicion any sudden reduction of payments toward support based on such income reductions. Commonwealth ex rel. Darling v. Darling, 300 Pa.Superior Ct. 62, 445 A.2d 1299 (1982); Commonwealth ex rel. Burns v. Burns, 251 Pa.Superior Ct. 393,380 A.2d 837 (1977); Weiser v. Weiser, 238 Pa.Superior Ct. 488,362 A.2d 287 (1976), Snively v. Snively, 206 Pa.Superior Ct. 278,212 A.2d 905 (1965). The rationale underlying these decisions is that a parent has a duty to his or her children and therefore a parent should not be permitted to evade that responsibility by deliberately reducing his or her income. This rule, however, is not without its exceptions. As we noted in Weiser v. Weiser, supra, 238 Pa.Superior Ct. at 492,362 A.2d at 288-289 . ‘[W]e are not constrained to say that a man once he has established a certain income level for himself and his family in the employ of another cannot decide to go into business for himself even though it results in a decrease of his present earnings. A man should have freedom of choice to be an employee of another or to establish his own business even though such change may result in present financial sacrifice with the hope of future increased income.’
Roberts v. Bockin,
Finally, our support guidelines provide assistance to courts concerning matters of voluntary reduction of income and income potential. Pa.R.C.P. 1910.16-5(c)(l), (4) reads:
(1) Voluntary reduction of income. Where a party voluntarily assumes a lower paying job, there generally will be no recomputation of the support payment. A party ordinarily will not be relieved of a support obligationby voluntarily quitting work or by being fired for misconduct.
(4) Income potential. Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity. Age, education, training, health, work experience and child care responsibilities are factors which shall be considered in determining earning capacity.
In light of the foregoing, to modify a support obligation based upon reduced income, a petitioner must first establish that the voluntary change in employment which resulted in a reduction of income was not made for the purpose of avoiding a child support obligation and secondly, that a reduction in support is warranted based on petitioner’s efforts to mitigate any income loss. In effect, petitioner must present evidence as to why he or she voluntarily left the prior employment and also as to why the acceptance of a lower paying job was necessary. Otherwise, for calculation of a support obligation, the petitioner will be considered to have an income equal to his or her earning capacity as defined in the support guidelines.
Instantly, the record reveals that appellee left his job as a coal miner to work for an equipment company at approximately one-half the salary. Appellee testified that he voluntarily left his job at the mine, but that he did so for health reasons. In particular, appellee complained of problems with his legs, knees, back, sinuses, and lungs after having worked for fifteen years as a miner. Appellee also stated that his new job would allow him to work a steady daylight shift and provide room for advancement, which included the opportunity to go to school. Appellant argues that although appellee may be free to leave one job to take another, the cost of such a change should not be placed upon her and her son. Also, appellant argues that appellee’s mere assertion of health problems, without further testimony or documentation in support thereof, does not establish sufficiently appellee’s burden in modifying his support obligation.
Also, although appellee’s testimony concerning his health condition may be sufficient to explain his reasons for quitting a job, we find the trial court’s reliance upon Roberts v. Bockin, supra, to support appellee’s modification to be misplaced based on the record presently before this court. In Roberts, a mother, who suffered from an ulcer, testified that she voluntarily had quit her job on the advice of her doctor, but further evidence revealed that when she left her position, she was moving to England to take a job that her son was arranging for her. Also, her previous place of employment was closing within a few months of her quitting. When the mother arrived in England, she learned that her job there had fallen through. Subsequently, she moved back to the United States where she lived with family members until she secured a position after searching for a year. In ruling that the mother in Roberts had quit her job at the suggestion of her doctor and not to avoid her support obligations, we found that the trial court properly determined the mother’s ability to pay support when it used her actual earnings and not her earning capacity in light of the facts surrounding her employment. Roberts v. Bockin, supra. Clearly, if the instant case revealed evidence quantitatively similar to that in Roberts, appellee would have met his burden of modifying his support obligation. However, the record before us does not support sufficiently appellee’s request. Accordingly, we believe that the trial court abused its discretion in this matter; therefore, we vacate the present order. Inasmuch as the unallocated order previously in effect provided support for appellant as well as appellee’s son, we remand for a new hearing.
Order vacated. Remand for proceedings consistent with this opinion. Jurisdiction relinquished.
Notes
. In
Weiser,
as quoted above, the court recognized that a parent should have some freedom of choice in employment situations, it nevertheless, reversed the trial court’s determination of support in that case because it found that the lawyer husband who left an established law firm to found his own firm had reduced his income but not his own standard of living. As stated by the court, "[m]ost certainly he has the right to establish his own business but not at the expense of his family whose life style he created based on $40,000.00 per year income which now must be changed to meet the new conditions while he continues to enjoy his usual high standard.”
Weiser v. Weiser, supra,
238 Pa.Superior Ct. at 494,