P.C. v. S.S. ( 2018 )

J-S03001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
S.S.,
Appellant No. 2311 EDA 2017
Appeal from the Order Entered June 22, 2017
In the Court of Common Pleas of Bucks County
Family Court at No(s):
2013DR00268
PASCES No. 144113794
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 28, 2018
Appellant, S.S., appeals pro se from the June 22, 2017 order denying
his petition for modification of support. After careful review, we affirm the
portion of the order relating to child support, remand to the trial court for
further proceedings consistent with this memorandum, and quash the
remainder of the appeal.1
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 By per curiam order dated August 30, 2017, this Court determined that the
spousal support portion of the June 22, 2017 order is interlocutory and that
“only the portion of the order with regards to child support will be referred to
the panel assigned to decide the merits of this appeal.” Per Curiam Order,
8/30/17. See Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996) (noting
the difference between spousal support and alimony pendent lite claims, no
matter if filed as part of a divorce action or separately, is negligible, and
(Footnote Continued Next Page)
J-S03001-18
This appeal arises from Appellant’s petition for modification of an
allocated child and spousal support order. The record indicates that
Appellant has a history of filing modification petitions, regardless of whether
there has been a substantial change in circumstances. On June 22, 2017,
after a two-day hearing on this matter, the trial court denied Appellant’s
most recent petition for modification when it was made abundantly clear that
no material and substantial change of circumstances had occurred, and
Appellant attempted to argue issues not raised in his petition. We need not
reiterate the history of this case at length herein, as the trial court
sufficiently set forth the relevant facts and procedural history in its
September 18, 2017 opinion. See Trial Court Opinion, 9/18/17, at 1-4.
On July 14, 2017, Appellant filed a motion for reconsideration of the
order denying his modification petition.2 He subsequently filed a timely
notice of appeal on July 20, 2017, followed by a timely, court-ordered
(Footnote Continued) _______________________
neither is appealable until all economic issues have been resolved); Fried v.
Fried, 501 A.2d 211 (Pa. 1985) (holding issues are reviewable after entry of
divorce decree and resolution of all economic issues); Hrinkevich v.
Hrinkevich, 676 A.2d 237 (Pa. Super. 1996) (stating child support orders
are immediately reviewable, notwithstanding pending divorce action).
2 The trial court did not rule on Appellant’s motion for reconsideration. A
court’s “failure to ‘expressly’ grant reconsideration within the time set by the
rules for filing an appeal will cause the trial court to lose its power to act on
the application for reconsideration.” Commonwealth v. Moir, 766 A.2d
1253, 1254 (Pa. Super. 2000). Thus, the “filing of a notice of appeal is
necessary to preserve appellate rights in the event that either the trial court
fails to grant the petition expressly within 30 days, or it denies the petition.”
Id.
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Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant now presents the following issues for our review:
1. Did the court err in its determination that the matter of
support was entirely interlocutory as it did not consider the
permanent portion related to child support that will not be
addressed at the equitable distribution [de novo] hearing?
2. Did the court err in its determination that a prior
determination and decision was made regarding [Appellee’s]
current part[-]time employment[?] In addition, did the court
err in its determination that the matter of [Appellee’s] relative
current earning capacity [had] been addressed by the court
previously?
3. Did the court err in its prediction that the impact of the
Support Court Determination on the Support Determination
would at best be a 4 month period and that there would be an
offset of changes in earnings of the parties rather than a
change in favor of the Appellant[?]
4. Was the court’s understanding of the determinations of the
Domestic Relations Section Conference officers flawed[?]
Appellant’s Brief at 3-4 (unpaginated).
As a prefatory matter, we note:
[A]ppellate briefs and reproduced records must materially
conform to the requirement of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or
dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.
Super. 2003). Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no
special benefit upon the appellant. Id. at 252. To the contrary,
any person choosing to represent himself in a legal proceeding
must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing. Commonwealth v.
Rivera, 454 Pa. Super. 451, 685 A.2d 1011 (1996).
Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005).
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Before we address the merits of Appellant’s claims, we must examine
whether the issues presented herein have properly been preserved. In
accordance with Rule 1925(b), “issues not included in a Rule 1925(b)
statement will be deemed waived for review.” Commonwealth v.
Hansley, 24 A.3d 410, 415 (Pa. Super. 2011);3 see also Pa.R.A.P.
1925(b)(4)(vii). After careful review, it is apparent that Issues 3 and 4 in
the instant matter are not included in Appellant’s Rule 1925(b) statement.
See Appellant’s Brief at 3-4 (unpaginated); TCO at 4. Accordingly, we are
constrained to deem these two issues waived.4
With regard to Appellant’s remaining claims, we note that “[a]ppellate
arguments which fail to adhere to [the Rules of Appellate Procedure] may be
considered waived, and arguments which are not appropriately developed
are waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014).
“[I]t is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal
____________________________________________
3 “Since the Rules of Appellate Procedure apply to criminal and civil cases
alike, the principles enunciated in criminal cases construing those rules are
equally applicable in civil cases.” Lineberger v. Wyeth, 894 A.2d 141, 148
n.4 (Pa. Super. 2006).
4 Even if Appellant had properly preserved Issues 3 and 4, we would
conclude that these issues are waived due to his failure to properly develop
his arguments in compliance with the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2101, 2119.
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J-S03001-18
authorities.” In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012). In addition,
the argument section of a brief “shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). “We will not act as counsel and will
not develop arguments on behalf of an appellant. Moreover, when defects in
a brief impede our ability to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to be waived.” R.D., 44
A.3d at 674.
Instantly, Appellant’s brief is woefully deficient. Contrary to the
requirements set forth in Rule 2119, the Argument section consists of six
enumerated sub-sections; however, there are only four issues listed in the
Statement of Questions Involved. See Appellant’s Brief at 3-4, 12-16
(unpaginated). Appellant failed to label the sub-sections of his Argument
with headings, which makes it even more challenging to decipher the
already confusing substance of his brief. Id. at 12-16. We further observe
that Appellant’s Argument is underdeveloped,5 consists primarily of generally
____________________________________________
5 As best as we can determine, Appellant’s argument regarding Issue 1
consists of a mere two sentences, which include only general legal
conclusions and/or statements of law and no analysis whatsoever to support
his claim. See Appellant’s Brief at 12.
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J-S03001-18
stated facts, and he fails to cite to legal authority in support of his claims.6
Hence, we deem Issues 1 and 2 waived due to Appellant’s failure to
adequately develop his arguments in compliance with the Pennsylvania Rules
of Appellate Procedure.
Moreover, even if Appellant properly preserved his issues and/or his
claims were not waived, we would affirm on the basis of the trial court’s
opinion. We have reviewed the certified record, the briefs of the parties, the
applicable law, and the thorough and well-crafted opinion of the Honorable
Brian T. McGuffin of the Court of Common Pleas of Bucks County, Domestic
Relations Section, entered on September 18, 2017. We conclude that Judge
McGuffin’s extensive, well-reasoned opinion accurately disposes of the issues
presented by Appellant, and we would discern no abuse of discretion or error
of law. Accordingly, we adopt Judge McGuffin’s opinion as our own and
affirm the June 22, 2017 order on that basis.
Additionally, we acknowledge the trial court’s request that we
admonish Appellant for his continued waste of the court’s time and
resources. See TCO at 11. We remind Appellant that a petition for
modification of an existing support order will only be granted in the event of
a material and substantial change in circumstances which warrant such
____________________________________________
6 Appellant provides only one legal citation in the entire Argument section of
his brief and fails to provide any analysis whatsoever as to how that one
legal authority supports his position. See id. at 12.
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J-S03001-18
modification. See Summers v. Summers, 35 A.3d 786, 789 (Pa. Super.
2012) (citing Pa.C.S. § 4352(a); Pa.R.C.P. 1910.19(a)). The burden of
demonstrating a “material and substantial change” rests with the moving
party. Id.
Finally, we address Appellee’s request for attorneys’ fees pursuant to
Pa.R.A.P. 2744. Rule 2744 provides that an appellate court may award a
reasonable counsel fee as further damages, “if it determines that an appeal
is frivolous or taken solely for delay or that the conduct of the participant
against whom costs are to be imposed is dilatory, obdurate or vexatious.”
An appeal is “vexatious” where it lacks any basis in law or fact, and where it
was filed with the sole purpose of causing annoyance. Thunberg v.
Strause, 682 A.2d 295, 302 (Pa. 1996). “The appellate court may remand
the case to the trial court to determine the amount of damages authorized
by this rule.” Pa.R.A.P. 2744.
Here, Appellee is requesting an award of attorneys’ fees pursuant to
Rule 2744, “due to the need to defend her position regarding this litigation,
including legal research and preparation of responsive pleadings.” Appellee’s
Brief at 28. She argues that Appellant’s multiple filings of modification
petitions merely attempt to re-litigate the same issues over and over again,
and that his brief consists of “ramblings with no legal or factual basis.” Id.
We agree with Appellee. In fact, during Appellant’s prior appeal, we
recognized that there may be a need for sanctions against Appellant in the
future:
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J-S03001-18
[Appellant’s] repeated pro se filings and appeals approach
satisfaction of this standard. As noted by the trial court, “As
reflected by the flurry of filings by [Appellant] on the docket …
[Appellant], at every turn, after any decision by this Court, files
petitions to modify his support obligation irrespective of whether
there were any material or substantial changes in
circumstances.” We note, however, that the trial court has
already entered one order requiring [Appellant] to pay
[Appellee’s] attorney’s fees and that the trial court continues to
supervise proceedings between the parties. We believe the trial
court is in a better position to assess the propriety of all of
[Appellant’s] conduct at the end of the proceedings before it and
to determine what sanctions, if any, are appropriate at that time.
We therefore deny [Appellee’s] request that we impose
additional sanctions in this appeal, without prejudice to her right
to seek appropriate relief from the trial court if, when, and to the
extent it becomes warranted. We do, however, caution
[Appellant] to exercise reason and restraint in the future
progression of this case.
P.C. v. S.S., No. 517 EDA 2016, unpublished memorandum at 9 (Pa. Super.
filed Nov. 2, 2016) (internal citations to the record omitted). Based on
Appellant’s failure to heed our warning and the frivolous nature of this
appeal, we grant Appellee’s request for relief in the form of attorneys’ fees
pursuant to Pa.R.A.P. 2744. Accordingly, this matter is remanded to the
trial court to determine the amount of reasonable attorneys’ fees due and
owing to Appellee.
Based on the foregoing, we affirm the portion of the June 22, 2017
order dismissing Appellant’s petition for modification of child support and
remand this matter to the trial court for further proceedings consistent with
this memorandum.
Order affirmed. Case remanded. Jurisdiction relinquished.
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J-S03001-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/18
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Circulated 03/12/2018 03:22 PM
IN TfIE COURT OF COM.t\10N PLEAS OF BUCKS COUNTY) PENNSYLVANIA
DO.l.VlESTIC RELATIONS SECTION
No.: 2013DR00268
Appellee,
PACSES No. 144113794
v.
s.s. 2311 EDA 2017
Appellant.
OPINION
8,S.
Appellant•••• appeals from the Court's Order dated June 22, 2017,
denying Appellant's request for a Modification of Support. The Court files this opinion pursuant ·
to Pennsylvania Rule of Appellate Procedure 1925(a).
I f f '
STATEMENT OF FACTS
The Appellant in this matter is a frequent litigator in the Bucks County Court of Common
,,
. Pleas, and given his difficulty i.11 accepting no for an answer to his frequent requests to modify
his Support obligations, he is also a frequent Appellant. As such, the Trial Court has had to
author prior- opinions in this matter, and in setting forth the procedural history and facts
underlying Appellant's instant Appeal, the Trial Court has chosen to incorporate the procedural
history from its previous Opinion dated April 22, 2016, as follows: .
P.C... .
l
Appel e� filed for divorce on January 9, 2013. As part of the divorce
proceeding, Appellee also filed for equitable distribution, custody of a minor child, and
alimony, In addition, Appellee requested that the Court award spousal and child support
in the interim.
On April 29, 2014, the Court, before the Honorable James M. McMaster, determined that
Appellant was obligated to pay $1572.00 per month, allocated $954 for spousal support
and $6 l 8 for the support of one minor child, [W.S.]. Arrears payment was set at $157.00
pet month. In reaching this decision, the Court specifically reduced the full guideline
amount of $3072.00 by $1,500 per month, to be credited to Appellee at the time of
equitable distribution. At the same time, the Court reserved the right to increase support
� by $1,500.00 per month upon the sale of the parties' Avalon home. In fact, on March 4,
�
2015, an Order of Court was entered after the sale of the parties' Avalon home, which
increased Appellant's support obligation from $1,572.00 to $3,072.00, and allocated
�
$1,865.00 for spousal support and $1,207.00 for child support.
�
� On March 18, 2015, Appellant filed his First Petition to Modify. Judge McMaster then
� entered a new Order of Court on June 16, 2015, which increased Appellant's support
obligation to $4403.00 per month, effective May 4, 2015, and allocated $2,890.00 for
�
spousal support and $1,513 for child support. Arrears was to be paid at an increased
� amount of $880.00 per month.
de
� Unsatisfied with the result, Appellant filed his Second Petition to Modify, merely six
days later, on June 22, 2015, contesting his support obligation and a review of the Court's
�
guideline calculations. Specifically, Appellant argued that the Court made a mistake in
� calculating his income with respect to his bonus and that the Court did not properly
� consider his arguments as to why Appellee should have been held at a higher earning
� capacity. Also, Appellant wanted the Court to address a new issue, whether he would be
awarded the child exemption deduction. �
�
� On August 31, 2015, this Court, after a hearing on the matter was held, modified
it Appellant's'obligation by reducing his support from $4403.00 back to $3,072.00 per
� month, allocated $1,872. 00_ for spousal support and $1,200.00 for child support. Arrears
�
was to be paid at a decreased amount of $614.00 per month. The reason for the reduction
was 'because we' found an error in the calculations made in the Domestic Relations'
�
recommendation, The Court, in reliance on the recommendation, previously applied
� Appellant's ..$29, 184.01 annual bonus that was paid in the beginning of the 2015 year to
� Appkllap.t's year-to-date earnings in determining support. Essentially, Appellant's annual
bonus was applied over a period of only four or five months, when support was contested
1
�
on .l'{1ay 4, ?OJ\ instead of over the correct twelve months. The result artificially inflated
�
Appellant's' Income and support obligation to $4403.00.
::\ . .
:;a In resolving th(i discrepancy, we reduced Appellant's support obligation and decided that
� the Order dated August 31, 2015, would be effective the date Appellant filed his petition
for �1qcvfic�.ii?P. on June 22, 2015. This Court did not make the Order retroactive beyond
�
that date to May 4, 2015, as Appellant would have liked, because Appellant did not file a
� motion to re.��-rtsi�er the Order dated June 16, 2015, or otherwise appeal that decision,
� an� �n�tpa�'.��,C!se to file apetition for modification. This Court also declined to address
� any other issi1�; as it would have been improper to overrule an order of another trial judge
�
ofthe s�e.cpmt in the same case. Furthermore, we explained that the Court was not
ev�ii !'�quired to make the modification, given that a petition to modify was procedurally
� improper, but that a correction would be made in the interest of justice and fairness to
� prevent :a calculation error from continuing.
�
. ..
D�sJ?.ite ·�_lrea�y adjusting Appellant's support obligation, Appellant filed his Third
�
�
Pe-�i�iofly) Mo;�ify on October 7, 2015, requesting another adjustment to his arrears
�
�
2
:" ·r i I .
' I
balance.' Appellant once again requested that his arrears be adjusted to reflect the
overpayments as a result of the bonus calculation error. Appellant made identical
arguments, that his reduced support obligation should have been retroactively made
effective as of May 4, 2015, instead of June 22, 2015, the date of his Second Petition to
Modify. Appellant argued that the Court's Order dated August 31, 2015, left $2,16i.OO.in
uncorrected overpayment.
· After a hearing was held .on January 8, 2016, thoroughly reviewing the matter,
Appellant's Third Petition to Modify was denied and dismissed. Appellant was further . ·
ordered to pay $500.00 for Appellee's attorney's fees. Thereafter; Appellant filed this
appeal. (Note: This history is from the 2016 Appeal, thus the word "this'treferences the
prior appeal.) As of the date the appeal was filed, the parties are still lo the process of
litigating the underlying divorce and equitable distribution matters. ·
Tue Superior Court issued a Rule to .Show Cause on March 17, 2016, directing Appellant
to 'address why the spousal support portion of the order denying and dismissing his
petition filed on October 7, 2015, requesting an adjustment to his arrears balance and to
pay Appellee's attorney's fees in the amount of $500.00 dollars are appealable. Appellant
filed a response to the Rule to Show Cause, which was docketed on the Superior Court
docket on March 28, 2016. Appellant in his response argues that he was under-the
direction of the Court and the Support Conference Office of Bucks County to file a
hearing for modification, but does not explain why the Order entered on January 8, 2016,
• • � 1 • • • '
was .appealable at this time. Appellant also argues that the Court's January 8, 2016, Order
��1¥d�s"�o��l�P,ousal a�d childsupportratiosand is thereforeimmediately appealable in
Pf!�:. A�. totliis Court's award of attorney's fees, Appellant merely states in a conclusory
. nianneethat the decision was made without the support by the facts ofrecord.
S�b�e�t��n_tll�s reflected by.the Superior Court docket entry dated April 4, 2.016; a Per
<71!1)a1rro�1�t 1a.s issued stating that "only the port�on of the o�' hearing. Any claims to discrepancies related
· to the child support portion are unlikely to be recovered. (Ritter, 518 A.2d at 322).
4
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DISCUSSION
�j
;"
':,#
I. This Court did·not Err or Abuse Its Discretion by Denying Appellant's March 13,
2017,-Petition and Entering its June 22, 2017, Order.
:;j The following standard applies to the Superior Court's review of a support order:
�
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
2' 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
;,,"f
•
manifestl
J .. unreasonable
1\.1�\.l.)' \.,,a0UJ..la � .. theV product of partiality
UJ. CU L , .Preiudice
.1 ·VJ vv, bias or 11· 1,w11' -.1,1 disc
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has been abused. In addition, we note that the duty to support one's child i� absolute, and
:zt the purpose of child support is to promote the child's best interest
�
Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super. 2012).
�
� When. a party files a Petition to Modify a support order, it must be based on a "material
2$
and substantial change in circumstances." Pa.R.C.P. 1910.19; 23 Pa.C.S. § 4352(a). The
� •
. . '
; I I
1°
I
ta1ty:b
1
ears the burden of proving a material change in circumstances has occurred .
•
� petitioning
�
Samii v. ·S�i;' 8�1 A'.2d 69 i � 695 (Pa. Super. 2004 ). A Trial Court may modify a support order
�
only after .a _h�arip�'. on the merits, and only if clear and positive evidence is presented. Keating v.
�
: I 4 •" 1 •
� Keating, 595 A:2d 109, 115 (Pa. Super. 1991). "The lower court must consider all pertinent
. • � ::: � t I .
�
circumstances and baseits decision upon facts appearing in the record which indicate that the
� - 'I: :: : I:� : 11: • • " •
� moving pfu·tj/ditl' �t cii'tl not meet the burden of proof as to changed conditions." Samii, 847 A.2d
,�
• ••- ::! . j .•• .
�·
at 695. LJstiy; J: �6urt ·inay 'not :co�sider assertions that have not been raised in the petition.
Be6gle -� .. -B�Jgl�, �52·A.2d 376, 377 (Pa .. super. 1994).
•
�
Applying these standards to the instant appeal, Appellant clearly did not meet his burden
of proving a::rnatbd:al! mid substantial change in circumstances based on a decrease of income
co�siderirtg h:is:i�cdme �ctually increased from 2015 to 2016. The Support Order Appellant
5
4
,)
;}
petitioned to modify established his gross annual income was approximately $191,000, and yet
J
;) Appellant presented to this Court that his 2016 gross annual income was approximately
::>
$198,000. When given the opportunity to present evidence and testimony as to how his income
.1
;� could have possibly decreased when it actually increased, he testified that his income should
�
j return to the approximate $191,000 for calendar year 2017, which this Court was inclined to
�
accept. However, Appellant presented no testimony or evidence whatsoever that his gross annual
�
;} income decreased from the April 29, 2014, Support Order. Appellant only seemed to provide
:;)
evidence that his income actually increased in 2016 by $7,000, and that it would return to the
;>
� annroximate
a.pl'1_ A.ll atv il'l91 ,vvv
lV (\(\(\ ;1.1.1
... 2017 • Therefore
.iv1v!t v, thist» r'r.n .. t
'\....,VUJ..\. denied
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110 ... t's Petition
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:} Modification and entered the June 22, 2017, Findings of Fact, Decision and Order, explaining the
� Court's.reasoning,1yet h�re we are' again as Appellant continues to appeal and petition the same
;;)
� issues �ver and.ov'er again,
:3
j Additionally, Appellant's argument during the hearing regarding Appellee's earning
� capacity was improper, Appellant's March 13, 2017, Petition for Modification only contained a
�
� single claim: .i that Appellant's support obligation should be modified due to Appellant's
�
decrease in inb6me: An almost identical issue has been previously addressed by the Superior
�
� Co�tt. In Beegle;pedtion�r h�d filed a Petition to Modify Support Order, where she indicated
�
only that her income had decr�ased. At the hearing, petitioner raised an allegation that
�
�
respondent's statement of child-care costs was inaccurate. The Superior CoU1t held the
�
� following: · · :
�
Ruhd910.19: of the Pennsylvania Rules of Civil Procedure requires that "(a] petition for
�
modification or termination of an existing support order shall specifically aver the
;� material and �ubstantial change in circurnstances upon which the petition is based."
� Pa.R.C.P., Rule 1910. J9(a), 42 Pa.C.S.A. Because (petitioner's] petition stated only that
� her income had decreased, it was improper for the court below to consider [respondent's]
;\ ; I
:}
6
�
;;l
child-care costsduring its hearing on the petition, and its judgment cannot stand on that
ground,
Beegle v. Beegle, 652 A.2d 376, 377 (Pa. Super. 1994).
Therefore, in the instant matter, it would have been improper for this Court to consider
Appellant's extraneous allegation pertaining to Appellee's earning
. . capacity, as-it was
. not
specifically raised in Appellant's March 13, 2017, Petition to Modify.
Not only would it have been improper, but Appellee's earning capacity had already been
determined by the DRS Conference Officers, and decided by the Honorable James M. McMaster
of our Court .. On April 29, 2014, following a hearing, Judge McMaster entered an 'order on the
record, stating, "[I]'m going to make a determination that mother is in fact working to her
capacity at this time based on her efforts to find employment and based on all of the
'
circumstance." N.T. April 29,2014, 2. Instead of filing an appeal to that April 29, 2014,
• !c t I
... ,.. ,\ • •
Appellant haschosen to file 'continuous modification petitions attempting to allege a substantial
. .
change in cir6tlinstande;, however, nothing has been presented to this Court in any proceeding,
including the :b�rteh� which has met the burden of a "material and substantial.change in
' .
'.··
circumstances."
It is ouropinion thatthis Court should not overrnle decisions made by another judge.of
th�'s�e court in the s�me. C?Se. See Golden v. Dion & Rosenau·- , 600 A.2q'· 568, 571 (Pa. Super.
· I . � - . ·� �
Ct. 1991) CWh'ere' a trial judge overrules the decision of another trial judge in the same case, he
1· , •
• ·1 •. . .
violates therule of lawwhichdisfavors such action").
The Trial C�in:t" has made it very clear to Appellant that the issue of Appellee's earning
capacity has been decided, and the Court will not continue to repeatedly make the same decision.
sudh a decision: can only be modified by showing a material and substantial change in
�. circumstances, �vhich Appellant has continuously failed to do.
� ! .
i 7
.,
child-care costs ·during its hearing on the petition, and its judgment cannot stand on that
ground,
Beegle v. Beegle, 652 A.2d 376, 377 (Pa. Super. 1994).
Therefore, in the instant matter, it would have beep. improper for this Court to consider
Appellant's extraneous allegation pertaining to Appellee's earning
. -
capacity, as·it was not
'
specifically raised in Appellant's March 13, 2017, Petition to Modify.
Not only would it have been improper, but Appellee.'s earning capacity had already been
determined by the DRS Conference Officers, and decided by the Honorable James M. McMaster
of our Court ..On April 29, 2014, following a hearing, Judge McMaster entered an 'order on the
record, stating, "[Ij'm going to make a determination that mother is in fact working to 'her
capacity at this time based on her efforts to find employment and based on all of the
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circumstance." N.T. April 29,.2014, 2. Instead of filing an appeal to that April 29, 2014,
Appellant -h�:choseti tb file :co'ntiuuous modification petitions attempting to allege a substantial
change in cird�stande;, however, nothing has been presented to this Coui.1 in any proc�eding,
including the h�rteh� which has met the burden of a "material and substantialchange in
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circumstances."
It is ouropiuion th�t 'ihis Court should not overrule decisions made by another judge.of
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th�·s�e court in the same. case, See Golden v. Dion & Rosenm�. 600 A.1� 568, 571 (Pa. Super.
. I . ,· ,- .....
Ct. 1991) ("Where' a trial judge overrules the decision of another trial judge in the same case, he
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violates therule of lawwhichdisfavors such action").
The Trial C�llti has made it very clear to Appellant that the issue of Appellee's earning
capacity has been decided, and the Court will not continue to repeatedly make the same decision.
Such a decision: can only be modified by showing a material and substantial change in
circumstances, �vh.ich 'Appellant has continuously failed to do.
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7
For the Superior Court's edification, Appellant has suggested in repeated arguments that
Appellec's earning capacity should be increased because she typically has been working less
than 30 hours per week, and most often as little as 20 hours per week. However, as has been
considered and accepted by the Court through the Domestic Relations Office and its officers and
their well-considered recommendations, Appellee's current employment position pays her an
unusually high hourly rate of $40.38 per hour in part to offset the idea that her employer offers
/lp(?(!-tfee
her less hours to work. has long contended that the hourly rate is much higher for
her working a limited 20-30 hours per week, than it would be with another employer, if she were.
. /}fptlie
working foll time throughout the year. As it is, she makes in excess of$42,000 annually ...
••••bas also indicated that there is room for advancement into more hours at her current
employer, and perhaps bonuses, advancement, etc., which was confirmed in late 2016, and early
2017, when she· began working more hours for a limited block of time (several months) and also
received a bomi; in the early part of 2017, for her extra efforts and work in late 2016. Despite
Appellants' suggestions and repeated arguments to the contrary, all of this has been considered
by the Trial Couit previously in.its review of the non-binding, non-dispositive, but still well-
reasoned and well prepared, Domestic Relations Office recommendations. Accordingly, not only