Mackie, D. v. Mackie, T. ( 2019 )

J-A26030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DIANE E. MACKIE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS J. MACKIE :
:
Appellant : No. 465 WDA 2019
Appeal from the Order Entered February 27, 2019
In the Court of Common Pleas of Washington County Domestic Relations
at No(s): 473 DR 2013
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 30, 2019
Thomas J. Mackie (“Husband”) appeals from the order, entered in the
Court of Common Pleas of Washington County, authorizing the Washington
County Domestic Relations Office to seize his assets in satisfaction of support
arrearages to Diane E. Mackie (“Wife”) in the amount of $27,962.92. Upon
careful review, we affirm.
This matter has a long and tortured procedural history, a full recitation
of which is not necessary to the resolution of this appeal. Husband filed for
divorce in 2013. Wife sought spousal and child support from Husband, which
the court awarded. Requests for modification were filed by both parties; the
details of various proceedings before the support hearing officer are not
relevant here. The trial court entered a decree of divorce on May 19, 2017,
which both parties appealed. By report dated October 2, 2017, the hearing
officer recommended that Wife be awarded $2,509 per month in alimony
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pendente lite (“APL”) during the pendency of the appeal. Both parties filed
exceptions to this report. Following various proceedings before both the
hearing officer and the trial court, on September 18, 2018, the court issued
an order which, in relevant part, directed Husband to pay the following to
Wife: effective September 12, 2016, the sum of $3,991 per month for spousal
and child support; effective April 4, 2017, the sum of $3,591 in spousal
support only. Effective May 19, 2017, the previous award of spousal support
was to convert to APL. Effective June 1, 2018, Husband was to pay Wife
monthly APL in the amount of $4,475. The order noted that Husband’s arrears
as of August 31, 2018 totaled $24,263.70 and directed him to make payments
thereon in the amount of $250 per month. Husband appealed the court’s
September 18, 2018 order, but did not challenge the court’s calculation of his
arrears as of August 31, 2018.1
On October 5, 2018, the Domestic Relations Section issued a “Notice of
Credit Bureau Reporting” noting arrears in the amount of $28,738.70,
consisting of the arrears as of August 31, 2018 in the amount of $24,263.70
as set forth in the September 18, 2018 order, plus unpaid support in the
amount of $4,475 for the month of September 2018. Husband filed an
objection to the Notice, “contesting the balance due as stated in the
document[.]” Contest of Notice to Credit Bureau, 10/18/18, at 1. The hearing
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1 Husband did not seek supersedeas of the court’s September 18, 2018 order
upon appeal. See Pa.R.A.P. 1731(b) (appeal from order of support or alimony
operates as supersedeas only upon application to and order of trial court and
filing of security).
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officer denied the objection, concluding that it was actually a collateral attack
on prior findings of the court regarding Husband’s arrearages. The hearing
officer also stated that the arrears balance in the notice would be brought up
to date. Husband filed no exceptions to the findings of the hearing officer and,
on January 14, 2018, the trial court denied Husband’s objections and directed
the Domestic Relations Section to submit a revised notice to credit bureau
agencies reflecting an arrears balance as of December 17, 2018 of
$33,088.70.
On February 14, 2019, Wife filed a pleading styled “Attachment of Assets
Held By Financial Institutions and Seize Periodic or Lump Sum Payments From
Employers, Retirement Accounts and Disability Benefits.” Wife alleged that
Husband had failed to pay support for the month of September 2018.
Accordingly, she argued, the arrearages set forth in the September 18, 2018
order converted from “past due support” to “overdue support” subject to
enforcement, including attachment and seizure of Husband’s assets. Husband
filed no response and, on February 27, 2019, the court entered an order
directing the Washington County Domestic Relations Office to “seize assets
not to exceed $27,962.922 belonging to Thomas Mackie” and to release any
remaining balance of the seized assets to Husband. The court further directed
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2 The Domestic Relations Section certified that, as of February 27, 2019,
Husband’s delinquent arrears totaled $27,962.92. See Certification of
Arrears, 4/1/19.
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that any funds seized be held in escrow pending resolution of Husband’s
appeal with respect to the September 18, 2018 order.3 Husband filed a timely
appeal, in which he asserts that the trial court’s order of seizure was in error
or constituted an abuse of discretion.
We begin by noting that our standard of review in matters of support
allows us to reverse the trial court only when there has been an abuse of that
court’s discretion. Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007).
The domestic relations section possesses the authority to “[i]ssue orders
in cases where there is a support arrearage to secure assets to satisfy current
support obligation and the arrearage by: . . . [a]ttaching and seizing assets
of the obligor held in financial institutions.” 23 Pa.C.S.A. § 4305(b)(10)(iii).
The Rules of Civil Procedure implementing this provision are set forth in Rules
1910.20(b)(3) and 1910.23. Rule 1910.20 provides that “[u]pon the obligor’s
failure to comply with a support order, the order may be enforced . . . pursuant
to Rule 1910.23, attaching and seizing assets of the obligor held in financial
institutions[.]” Pa.R.C.P. 1910.20(b)(3). Rule 1910.23 provides, in relevant
part, as follows:
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3 The assets to be seized pursuant to the order now on appeal were directed
to be held in escrow pending the outcome of the appeal of the September 18,
2018 order. On October 2, 2019, this Court issued a memorandum decision
affirming, in part, and vacating, in part, that order, and remanding the matter
to the trial court for a determination as to whether certain reimbursed
expenses constitute income to Husband. In the event those proceedings
result in a change to Husband’s income for prior years, the court shall release
to Wife only such escrowed funds as she is due in light of the revised income
calculation.
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(a) Upon identification of an obligor’s assets held by a financial
institution, the court shall, upon certification of the overdue
support owed by the obligor, enter an immediate order prohibiting
the release of those assets until further order of court. . . . Service
of the order on the financial institution shall attach the asset up
to the amount of the overdue support until further order of court.
Pa.R.C.P. 1910.23(a) (emphasis added).
The support guidelines differentiate between “overdue support” and
“past due support” as follows:
“Overdue support,” the amount of delinquent support equal to or
greater than one month’s support obligation which accrues after
entry or modification of a support order as the result of obligor’s
nonpayment of that order.
“Past due support,” the amount of support which accrues prior to
entry or modification of a support order as the result of
retroactivity of that order. When nonpayment of the order
causes overdue support to accrue, any and all amounts of past
due support owing under the order shall convert immediately
to overdue support and remain as such until paid in full.
Pa.R.C.P. 1910.1(c) (emphasis added). Where an obligor defaults on a
support order and “past due” support converts to “overdue” support, it
remains “overdue” support until collected in full, and is subject to the full
range of collection remedies. See Pa.R.C.P. 1910.1, comment—2000.
Here, the September 18, 2018 order fixed Husband’s past-due
arrearages at $24,263.70 as of August 31, 2018.4 When Husband defaulted
on his September 2018 payment, those “past due” arrearages immediately
converted to “overdue” arrearages. See Pa.R.C.P. 1910.1(c). Accordingly,
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4 We note again that Husband did not challenge the court’s calculation of
arrearages in his appeal of the September 18, 2018 order.
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those arrearages became subject to full range of collection remedies, including
the attachment and seizure of assets held in financial institutions pursuant to
23 Pa.C.S.A. § 4305(b)(10)(iii).
In his brief, Husband attempts to argue, without proof, that the
Domestic Relations Section is somehow responsible for his overdue arrearages
because his wages were allegedly attached at the time, and he “had every
reason . . . to anticipate that the wage attachment would be applied to the
September 18 order.” Brief of Appellant, at 16. Particularly in light of
Husband’s contumacious conduct throughout the pendency of this matter, this
attempt to deflect blame for his default is disingenuous at best. The obligation
to make the payments was Husband’s alone and he—again—failed to comply
with the court’s order. He is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2019
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