Duffy, M. v. Duffy, J. ( 2015 )

J-S57034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.A.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.F.D., JR.
Appellant No. 1026 EDA 2015
Appeal from the Order Entered March 9, 2015
In the Court of Common Pleas of Montgomery County
Domestic Relations at No: 2007-26322
BEFORE: MUNDY, OTT, and STABILE, J.J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2015
Appellant, J.F.D., Jr., appeals from the trial court’s March 9, 2015
order denying his petition for modification of a December 23, 2013 child
support order. We affirm.
The trial court recited the pertinent facts and procedural history in its
opinion of March 10, 2015:
Currently before the [c]ourt is [Appellant’s] Exceptions to
the Recommendation of Support which was made a Per Curiam
Order on December 23, 2013, and [Appellee M.A.D.’s] Petition
for Counsel Fees. The relevant factual and procedural history is
as outlined below.
[Appellant] and [Appellee] are the parents of two minor
children[….]
On April 9, 2012, [Appellee] filed a petition for child
support. On March 5, 2013, the parties appeared before the
Conference Officer in Support, on [Appellee’s] petition. After the
conference, a Per Curiam Order was entered, wherein
[Appellant] was directed to pay two thousand two hundred
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sixteen dollars and forty-six cents ($2,216.46) per month for
child support for both children. On March 19, 2013, [Appellant]
filed Exceptions to said Order. On May 20, 2013, [Appellee] and
[Appellant] appeared before the Honorable, Judge Rhonda Lee
Daniele for a de novo hearing on [Appellee’s] April 9, 2012
petition for child support.
On July 25, 2013, Judge Daniele issued an
Opinion/Support Order calculating the parties’ respective
incomes utilizing four different time periods. Specifically, the
Court calculated the parties’ respective incomes from April 9,
2012 until June 30, 2012 (“first period”), from July 1, 2012 until
December 31, 2012 (“second period”), from January 1, 2013
until June 30, 2013 (“third period”), and from July 1, 2013
forward (“fourth period”). [. . .] With regard to [Appellant], the
Court found that [Appellant] was the sole owner of Protica, Inc.,
a subchapter S corporation, and also an owner of interests in
several L.L.C.’s. The Court stated that [Appellant] testified
regarding a drastic downturn in his business, but that it was not
convinced by [Appellant’s] testimony, and the documentary
evidence submitted, that such a drastic downturn occurred. The
Court also noted that [Appellant’s] income was ‘significantly
more than’ [Appellant] represented. Ultimately, the Court found
that [Appellant] has an income/earning capacity of $25,000 per
month for all four periods.
Trial Court Opinion, 3/10/15, at 1-2.
Appellant did not appeal from the trial court’s July 25, 2013 support
order. On August 17, 2013, he filed the instant modification petition. A
conference officer recommended dismissal, finding no change in
circumstances, and Appellant filed exceptions. The trial court, Judge Steven
C. Tolliver, conducted protracted hearings on May 5, 2014, July 28, 2014,
and February 12, 2015. At those hearings, Appellant testified that Protica’s
financial health has been in decline since 2011. Protica manufactures
protein-based health foods and drinks. Appellant also noted that Protica
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filed for Chapter 11 bankruptcy protection on May 5, 2013. In June of 2013,
Protica laid off most of its employees and defaulted on a $3.9 million
business loan. Protica eventually sold its production lines to another
company, Nutritional Resources, Inc. (“NRI”) while Protica transitioned from
manufacturing to sales. Appellant testified that his current annual earnings
from Protica are capped at $120,000 under an agreement with Protica’s
creditors.
Judge Tolliver dismissed Appellant’s petition, reasoning in large part
that Appellant’s challenges relate to circumstances that predate the prior
support order, and that his allegations of changed circumstances lacked
credibility. Thus, Appellant cannot establish a change in circumstances.
Appellant counters that the alleged change in circumstances occurred during
the weeks between the May 20, 2013 hearing and the July 25, 2013 support
order. Appellant states the questions involved as follows:
I. Did the trial court abuse its discretion by entering an order
which failed to consider the financial circumstances
presented prior to the filing of the petition to modify
support, on the basis that a party must show a material
and substantial change in circumstances since entry of an
order, despite the fact that it took the trial court two
months after the prior support trial concluded to enter its
order, and the effect of this delays [sic] is not an issue
contemplated in the Pennsylvania Rules of Civil Procedure
or Pennsylvania case law?
II. Did the trial court abuse its discretion by entering an order
that failed to conclude that credible evidence presented by
[Appellant], regarding a material and substantial change in
circumstances, warranted a modification of support,
obligation for private school tuition, and other expenses for
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the children, despite the fact that the trial court never
concluded that [Appellant’s] evidence at trial was not
credible?
III. Did the trial court abuse its discretion in entering an order
which failed to conclude that evidence reflecting a material
and substantial change in circumstances to [Appellee’s]
income warrant a modification of support, obligation for
private school tuition, and other expenses for the children?
Appellant’s Brief at 5.
We conduct our review 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. In addition, we note
that the duty to support one’s child is absolute, and the purpose
of child support is to promote the child’s best interests.
Morgan v. Morgan, 99 A.3d 554, 556-57 (Pa. Super. 2014), appeal denied,
113 A.3d 280 (Pa. 2015).
Moreover,
A Court may only modify an existing support award when
the party requesting the modification shows a material and
substantial change in circumstances since the Order was
entered. In order to modify a support order, 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 order.
The change in circumstances must be permanent, meaning it is
irreversible and indefinite in duration. We have refused to
disturb a support award unless the trial court in determining the
amount of support, has abused its discretion in determining the
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amount of the award and where the moving party’s burden of
proof has not been met.
Crawford v. Crawford, 633 A.2d 155, 164 (Pa. Super. 1993) (emphasis
added).
As is evident from the foregoing, Appellant’s first argument—that
Judge Tolliver erred in refusing to consider circumstances that predate the
prior support order—is legally incorrect. This Court has held repeatedly that
any alleged changed circumstances must post-date the prior support order.
Id; see also Sammi v. Sammi, 847 A.2d 691, 695 (Pa. Super. 2004)
(“When 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 order.”) (quoting Sladek v. Sladek, 563 A.2d 172, 173 (Pa. Super.
1989)); Lampa v. Lampa, 537 A.2d 350, 352 (Pa. Super. 1988) (same).
In addition, the Crawford Court explained that the law imposes no
deadline within which the trial court must issue a support order. Crawford,
633 A.2d at 161. The Crawford Court criticized the trial court for a three-
year delay between the hearing and the eventual support order, but found
no prejudice to the husband arising from that delay inasmuch as he was not
required to pay interest on outstanding arrearages. Id. More importantly,
the Court wrote that the husband cited “no basis in law or fact upon which
this Court may grant him relief.” Id. Appellant believes Crawford supports
his argument because Appellant, unlike the husband in Crawford, suffered
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prejudice. We disagree. The Crawford Court charged husband with
knowledge of the law governing support proceedings, including the rule that
the support order would be effective as of the date his wife filed the
complaint for support. Id. (citing Pa.R.C.P. 1910.17(a)). Similarly, in the
instant case, Appellant should have been aware of the well-settled rule that
a modification petition must allege changed circumstances that post-date the
existing support order. If Appellant suffered a sudden and dramatic change
in his financial circumstances after the May 20, 2013 hearing but before the
July 25, 2013 order, nothing prevented Appellant from informing the court of
those circumstances before it issued an order. Based on the rule expressed
in the above-cited cases, Appellant was obligated to do so. He did not.
Furthermore, as the trial court noted, the record does not support the
factual basis for Appellant’s first argument. Protica filed for bankruptcy on
May 5, 2013, fifteen days before the final protracted hearing in front of
Judge Daniele. Protica’s financial decline predated the final protracted
hearing before Judge Daniele, she was aware of the bankruptcy when she
issued her support order. Appellant’s first argument does not merit relief.
In his second argument, Appellant asserts that the trial court’s ruling
is in error because the court did not find Appellant’s evidence and testimony
lacking in credibility. According to Appellant, the record contains
uncontradicted credible evidence of the significant downturn in Protica’s
financial health. Furthermore, Appellant notes that the existing support
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order set his earning capacity at $25,000 per month based on his 2011 tax
return. Appellant claims it is unfair for that order to remain in effect given
the misfortunes he suffered beginning in mid-2013. As we have just
explained, the trial court denied Appellant’s petition because the alleged
changed circumstances predated the July 25, 2013 support order. Appellant
persists in that challenge on appeal. Appellant’s Brief at 18, 20. The trial
court was correct in ruling that the law requires the alleged changed
circumstances to post-date the existing order.
Moreover, as Judge Tolliver noted, Judge Daniele had no choice but to
base the July 25, 2013 order on Appellant’s 2011 tax return because he
never provided the 2012 return, despite a court order to do so. See Trial
Court Opinion, 7/25/13, at 2 (“[Appellant] failed to supply what the Court
considers the most important documents in calculating a support order:
2012 Individual and Corporate Tax Returns, which he was specifically
directed to bring by the Discovery Order dated April 19, 2013.”). Appellant
cannot use the pending modification petition to remedy his failure to apprise
Judge Daniele of his financial circumstances as they existed prior to the July
25, 2013 support order.
Finally, and contrary to Appellant’s assertion, Judge Tolliver plainly did
not find any credible evidence that Appellant’s financial circumstances
changed for the worse after the July 25, 2013 support order:
This Court also was not impressed that [Appellant’s]
income is capped at $120,000. [Appellant’s] testimony and
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documentary evidence demonstrate that [Appellant’s] annual
salary has not changed, and the amounts of distributions
[Appellant] takes is based upon the financial success of Protica.
[Appellant’s] testimony regarding his income and the
future of Protica was speculative at best.
First, the evidence demonstrates that [Appellant’s] income
in 2014, including his salary and distributions from Protica,
exceeded $120,000. In addition, [Appellant] has testified that
Protica is not winding down, rather it is restructuring. Protica
still collects a minimum annual royalty fee of $400,000, is now a
party to a commission and equity agreement with NRI, and still
collects licensing fees. Although [Appellant] makes much of the
reduction in his salary, the record also reveals that he voluntarily
agreed to it, in order to assist Protica’s transition to a sales
company.
Trial Court Opinion, 3/10/15, at 6 (emphasis added). “[Q]uestions of
credibility are solely for the trial court as factfinder to decide.” Crawford,
633 A.2d at 159. We cannot disturb the trial court’s credibility
determinations, and we conclude that the trial court acted well within its
broad discretion in finding that Appellant did not experience a material and
substantial change in his financial circumstances subsequent to the July 25,
2013 support order.
In his third and final argument, Appellant asserts that the trial court
erred in denying his modification petition because Appellee’s salary has risen
since the prior order. In support of his argument, Appellant references a
single page of the record. Appellant’s Brief at 26 (citing N.T. Hearing,
5/5/14, at 42.) Nothing on that page evidences any increase in Appellee’s
salary. Since Appellant has failed to cite record support for his third
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argument, he cannot obtain relief. Pa.R.A.P. 2119(c); J.J. DeLuca Co.,
Inc. v. Toll Naval Assoc., 56 A.3d 402, 411 (Pa. Super. 2012).
In summary, we have concluded that none of Appellant’s arguments
merits relief. We therefore affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
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