E.M. v. J.G. ( 2018 )

J-S13037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.G., :
:
Appellant : No. 1413 WDA 2017
Appeal from the Order August 16, 2017
in the Court of Common Pleas of Erie County,
Domestic Relations at No(s): NS201700402
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018
J.G. (“Father”), pro se, appeals from the Order assessing him a support
obligation of $396.91 per month plus arrearages for Em.M. (“Child”). We
affirm.
The trial court set forth the relevant underlying facts as follows:
On April 5, 2017, [E.M.] (hereinafter “Mother”) filed a Complaint
for Support of [Child], born January [] 2017. On April 6, 2017,
the Domestic Relations Office (“DRO”) sent Father a copy of the
Complaint for Support and a paternity packet. See Notes of
Testimony, May 25, 2017; see also Summary of Trier of Fact,
July 24, 2017. The Certified Mail Return receipt indicates that
[the] Complaint and paternity packet were received by Father.
See id.; see also Return Receipt for Certified Mail [I]tem
[N]umber 9171969009350057240319.
By letter dated April 17, 2017, Father contested jurisdiction and
alleged that he does not know Mother. See Notes of Testimony,
May 25, 2017; see also Summary of Trier of Fact, July 24, 2017.
As a result of Father’s letter, DRO scheduled a May 25, 2017
hearing before the [trial court] regarding jurisdiction. DRO
notified Father of the hearing by an April 25, 2017 Order for Court
Hearing. An application to participate in the hearing via telephone
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accompanied the April 25th Order for Court Hearing sent to
Father. See Notes of Testimony, May 25, 2017.
On May 4, 2017, Father filed a Request for Proof of Jurisdiction
asserting:
[On] April 2017, your administration sent me a letter
concerning a [C]omplaint for child support, in response, I
written [sic] you a letter stating that I do not know the
plaintiff; I never spent time in Pennsylvania, and a demand
for proof of jurisdiction on record; jurisdiction can never [be]
presumed, never be waved [sic].
[On] April 29, 2017[,] I received a letter from your
administration ordering me to appear in court without
providing proof of jurisdiction on record; “There is no
discretion to ignore lack of jurisdiction.” Joyce v. U.S.[,] 474
2D 215 (3rd circuit 1973); the court [O]rder isn’t even signed
by the processing judge[.] Therefore, its void.
Please be advice [sic], if your administration cause me any
grief concerning this matter; a claim will be filled [sic]
pursuant to 42 U.S. 1983, your jurisdiction is not of the
constitution; [Mother] failed to state the claim.
In response to Father’s May 4, 2017 Request for Proof of
Jurisdiction, DRO sent Father [the] May 5, 2017 correspondence
explaining that the hearing was scheduled to address jurisdiction
and that failure to appear may result in default. See Notes of
Testimony, May 25, 2017; see also Summary of Trier of Fact,
July 24, 2017. The correspondence further included an application
to participate in the hearing via telephone. See id. Father neither
returned the application for telephone appearance nor appeared
at the hearing. See id.
Following the May 25, 2017 hearing, th[e trial c]ourt issued an
Order of the same date as follows:
De Novo hearing was held on 05/25/17 in front of the
Honorable Elizabeth K. Kelly to address [Father’s] contest to
jurisdiction. [Mother] was present for the hearing. [Father]
failed to appear and failed to return the telephone
appearance application. Based on the facts of the case
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presented by Domestic Relations and testimony from
[Mother], the court orders the following:
[Father’s] contest on the basis of jurisdiction is denied. On
the issue of paternity, [Father] has been served. Therefore[,
Father] shall be defaulted as the father of [Child].
An additional May 25, 2017 Order of Court issued indicating that
Father was [Child’s] biological father and ordering that the matter
be set for a support conference.
As a result, a May 26, 2017 Order of Court directed Father to
appear at a conference before a conference officer of DRO. Father
did not appear for the conference[.] [H]owever, [the trial court
issued] a July 24, 2017 Interim Order of Court [] assessing Father
with a $396.91 support obligation plus arrears. The Order
directed[,] “[t]his temporary [O]rder shall become final in twenty
(20) days, unless a demand for a hearing is filed within said
twenty (20) days.”
Neither party filed a demand for hearing before the court. [The
July 24, 2017 Interim Order was marked as a final Order on the
docket on August 16, 2017.] [O]n September 18, 2017, Father
filed his appeal.[1] Father failed to serve his Notice of Appeal upon
the [c]ourt. Nevertheless, upon receipt of notice from the
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1 We decline to quash Father’s appeal for being untimely filed. It is well-
settled that “no order of a court shall be appealable until it has been entered
upon the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). “The
date of entry of an order in a matter subject to the Pennsylvania Rules of Civil
Procedure shall be the day on which the clerk makes the notation in the docket
that notice of entry of the order has been given as required by Pa.R.Civ.P.
236(b).” Pa.R.A.P. 108(b). Rule 236(b) requires that “[t]he prothonotary
shall note in the docket the giving of the notice….” Pa.R.C.P. 236(b). “Thus,
pursuant to the express terms of the rules, an order is not appealable until it
is entered on the docket with the required notation that appropriate notice
has been given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa.
1999) (citations omitted). Here, the Order at issue was entered on the docket
on August 16, 2017, but there is no indication when notice was provided to
the parties. Thus, the docket entries in this case do not comply with Rule
236(b), and the appeal period was not properly triggered. See In re L.M.,
923 A.2d 505, 509 (Pa. Super. 2007). Accordingly, we will address Father’s
appeal.
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Superior Court indicating that Father filed an appeal, th[e trial
c]ourt, on October 10, 2017, ordered Father to comply with Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure and file
of record and serve on the [c]ourt a concise statement of the
errors complained of on appeal within twenty-one days of entry of
the Order. Father, on October 20, 2017, filed his statement of
errors but failed to serve the same on the [trial court].
Trial Court Opinion, 11/14/17, at 2-4 (footnotes omitted, footnote added).
Father raises the following questions for our review:
[1.] Did the [trial] court have subject matter, personal
jurisdiction[;] what delegated authority gave [the trial] court to
act in this judicial capacity?
[2.] Does [d]omestic relations violate separation [of] power[s]
clause[;] do they have judicial power to issue court orders;
subpoenas, paternity packages to [Father], make default
judgments[?]
Brief for Appellant at 5.
First, Father contends that the trial court did not have personal
jurisdiction over him. Id. at 10, 11. Father argues that he does not know
Mother and has never spent time in Pennsylvania. Id. at 11. Father thus
asserts that he did not have minimum contacts in Pennsylvania. Id.
The trial court addressed Father’s contention as follows:
Father’s initial challenge to jurisdiction was via a letter to DRO
with the bare assertion that Pennsylvania lacked personal
jurisdiction. As a result, the [trial c]ourt gave Father the
opportunity to support his assertion by scheduling a hearing on
jurisdiction. Father was served notice of said hearing.
Nevertheless, he failed to participate in the hearing or in any way
present evidence to support his objection. In other words, despite
a clear opportunity to litigate the issue of jurisdiction, Father failed
to support his claim. Meanwhile, a mere objection to personal
jurisdiction over a defendant does not place the burden on the
plaintiff to negate such allegations; instead, the defendant bears
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the burden of supporting the objection by presenting evidence.
See Gall v. Hammer, 617 A.2d 23, 24 (Pa. Super. 1992); see
also Scoggins v. Scoggins, 555 A.2d 1314, 1317-18 (Pa. Super.
1989).
Without any support for his objection, Father failed to shift the
burden of proof to Mother. As a result, Father’s … allegations of
error are without merit.
Trial Court Opinion, 11/14/17, at 4-5. We agree with the sound reasoning of
the trial court and affirm on this basis. See id.; see also De Lage Landen
Servs., Inc. v. Urban P’ship, LLC, 903 A.2d 586, 590 (Pa. Super. 2006)
(noting that when a defendant raises a personal jurisdiction challenge, they
bear the burden of supporting such a challenge by presenting evidence and
that the burden of proof only shifts to the plaintiff after the defendant presents
affidavits or other evidence supporting their challenge).2
Next, Father contends that the trial court did not have authority to enter
a finding that he was father of Child, after Father had refused to take a DNA
test. Brief for Appellant at 7, 10; see also id. at 12 (arguing that the trial
court could not enter a default finding).
The trial court addressed Father’s claim as follows:
With regard to paternity, the Domestic Relations Code provides:
Default.—The court shall enter a default order establishing
paternity and enforcing support upon a showing that the
defendant has been properly served and has not appeared.
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2Father also contends that Mother did not have standing to pursue her action.
Brief for Appellant at 10-11. However, Father did not raise this claim in his
Rule 1925(b) Concise Statement. Thus, the contention is waived on appeal.
See Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. 2011).
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23 Pa.C.S.A. § 4342(e). The Pennsylvania Rules of Civil Procedure
further provide:
Failure to Appear. If defendant fails to appear as ordered
for a conference, hearing or trial, or for genetic tests, the
court shall, upon proof of service on the defendant, enter an
order establishing paternity. The court may also enter an
interim order for child support at that time and shall refer the
action to conference and hearing as in other actions for
support.
Pa.R.C.P. 1910.15(e).
Consistent with Section 4342(e) of the Domestic Relations Code
and Rule 1910.15(e), [the trial court] issued an [O]rder finding
that Father was [Child’s] father for purposes of support.[3] As
indicated above, Father was served the Complaint and notice of
the hearing. Notice to [F]ather included clear direction that failure
to appeal could result in entry of a default paternity order.
Moreover, Father had an opportunity to participate and was even
provided, on two separate occasions, information on how to
participate in the proceedings by telephone. Father’s failure to
appear prior to entry of the default [O]rder cannot be excused.
Accordingly, Father’s [] allegation of error is without merit.
Trial Court Opinion, 11/14/17, at 5-6 (footnote added). Upon our review of
the record, we agree with the sound reasoning of the trial court and affirm on
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3“An order establishing paternity is not an appealable order. The issue of
paternity may be included in an appeal from the final order of child support.”
Pa.R.C.P. 1910.15(f).
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this basis. See id.4
Father additionally contends that he was not properly served. Brief for
Appellant at 11. Father fails to provide any discussion or cite to any pertinent
authority to support his contention; thus, it is waived. See Pa.R.A.P. 2119(a);
see also Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005) (noting that “a
failure to argue and to cite any authority supporting any argument constitutes
a waiver of issues on appeal.”).5
Because Father’s argument on this matter consists of conclusory
allegations and discussion of inapposite case law, we conclude that he has not
demonstrated error by the trial court. See Miller v. Miller, 744 A.2d 778,
788 (Pa. Super. 1999) (noting that “[i]t is the [a]ppellant who has the burden
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4 Father also argues that the Domestic Relations Code is void, and that the
Rules of Civil Procedure are void because they do not include an enacting
clause. Brief for Appellant at 7-9. Father waived these arguments for failing
to raise them in his Concise Statement. See Love, 33 A.3d at 1273.
Moreover, in his brief, Father supports his arguments with citations to case
law from other jurisdictions, but does not indicate how such cases apply to
the Domestic Relations Code or the Pennsylvania Rules of Civil Procedure.
See Pa.R.A.P. 2119(a) (noting that the argument section must contain
pertinent citations to authorities).
5 In any event, the trial court found that Father’s assertion regarding service
was without merit. The trial court noted that DRO presented postal service
receipts indicating Father had been served. See Trial Court Opinion,
11/14/17, at 6; see also Pa.R.C.P. 1930.4 (governing the service of process
in domestic relations matters). The trial court further noted “it is clear from
Father’s contact with DRO that he received notice of the action and the
hearing.” Trial Court Opinion, 11/14/17, at 6 n.6.
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of establishing his entitlement to relief by showing that the ruling of the trial
court is erroneous under the evidence or the law.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2018
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