Kimberly M. Frederick, v. Willard R. Frederick, Jr.,

Kimberly M. Frederick, v. Willard R. Frederick, Jr.,

Civil Action-Family Law-Support-Spousal Support-Temporary Nature-Duration of Award-Amount of Award-Factor Supporting Deviation-Guideline Support Amount-Earning Capacity

The parties married in 1986 and separated in 2017 with Kimberly M. Frederick (“Wife”) filing a Complaint for Spousal Support on May 1, 2019.  Following establishment of an order in the amount of $1,500.00 per month, Petitions for Modification and Exceptions were filed multiple times.  Following a most recent Petition for Modification on October 28, 2024, the Domestic Relations Hearing Officer (“DRHO”) found that Willard R. Frederick, Jr., (“Husband”) had an earning capacity of $90,000.00 per year based upon his perceived ability to drive a truck fulltime supporting the continuation of spousal support in the amount of $1,500.00 per month.  Husband filed Exceptions asserting that he is unable to work as a truck driver due to his age and health issues and the DRHO erred in assigning an earning capacity of $90,000.00 per year.

1.  The court must give the fullest consideration to the credibility findings of the DRHO, who was present to observe the demeanor of the witnesses.

2.  The report of the DRHO is advisory only, and the court must consider all the evidence de novo and make an independent determination of the amount of support due and owing when there is a transcribed record to review.

3.  Pa.R.C.P. Rule 1910.16-5(2)(v) permits the court to deviate from the Support Guidelines in part based upon the duration of a spousal support order.

4.  Spousal support is designed to be temporary to afford the financially dependent spouse with needed financial resources after separation and until a more permanent financial arrangement can be established by equitable distribution and/or alimony.

5.  The duration of the spousal support order in this case is a factor that should be considered in light of the fact that spousal support has been ordered for six (6) years since the parties’ separation eight (8) years ago.

6.  The DRHO erred by not employing a deviation analysis with reduction of the Guideline support amount based in part upon the duration and the amount of spousal support already received by Wife where Wife is employed earning $60,000.00 per year with some of Husband’s current financial woes existing because both parties received the benefit of enjoying income when they were together that should have been paid in taxes.

7.  Support should be based upon actual earnings.

8.  A support order must be enforceable. 

9.  A finder of fact may base a support obligation upon earning capacity that exceeds actual income considering factors including childcare responsibilities and expenses, assets, residence, employment and earnings history, job skills, education, age, health, criminal record and employment barriers, record of seeking work, the local job market and local community prevailing earnings levels.

10.  Where Husband no longer owns his own business and owes over $400,000.00 in delinquent taxes, now is sixty-three (63) years of age and the record contains little to no information on how the DRHO arrived at the earning capacity assigned, the record does not support a finding that Husband can earn $90,000.00 per year.

11.  While records from the Bureau of Labor Statistics may be considered in determining earning capacity, they cannot be the exclusive basis for assignment of earning capacity without discussion of the other relevant factors. 

L.C.C.C.P. No. 2018-5-0222, Opinion by Bradford H. Charles, Judge, August 1, 2025.