Caninzun, C. v. Caninzun, J. ( 2014 )

J. A27004/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CYNTHIA R. CANINZUN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JERROLD R. CANINZUN, : No. 40 WDA 2014
:
Appellant :
Appeal from the Order, December 4, 2013,
in the Court of Common Pleas of Allegheny County
Family Court Division at Nos. FD 03-002472-002,
PACES NO. 110105727
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2014
Appellant, Jerrold R. Caninzun (“Father”), appeals from the order
entered in the Court of Common Pleas of Allegheny County directing him to
continue making monthly support payments for the parties’ adult son,
A.M.C. who lives with appellee, Cynthia R. Caninzun (“Mother”). We affirm.
In a prior appeal to this court, we summarized the relevant facts and
procedural history as follows:
[Mother] and Father are the parents of A.M.C.
When A.M.C. was five years’ old, doctors diagnosed
him with autism and pervasive developmental
disorder (“PDD”). Sometime after the diagnosis, the
parties separated. On September 8, 2003, Mother
filed a complaint for child support, which the court
granted.
On November 20, 2011, A.M.C. celebrated his
eighteenth birthday. Prior to A.M.C.’s high school
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graduation in June 2012, the court ordered an
administrative review of the child support action to
determine whether A.M.C. would be “emancipated”
upon graduation. On May 31, 2012, a hearing officer
received testimony from Father, Mother, and A.M.C.
At the conclusion of the hearing, the officer issued
the following recommendation:
As the child . . . is not able to be
self-supporting at this time, he is not
emancipated and support will continue.
Order considers the cost of medical
insurance to [Mother] for the child.
Effective 6/1/12, [Father] is to pay
$699.00 per month for the support of
[A.M.C.] plus $70.00 per month ordered
on amount on arrears set at $3,490.09
as of 6/1/12.
Hearing Summary, dated 5/31/12, at 1.
On June 19, 2012, Father filed exceptions to
the support recommendation. Father argued that
A.M.C. had successfully completed high school and
planned to pursue post-secondary education at a
local vocational school. Father concluded A.M.C. did
not have a condition rendering him incapable of
self-support, and the officer erroneously ordered the
continuation of child support. By order and opinion
dated October 29, 2012, the court denied Father’s
exceptions, adopted the hearing officer’s support
recommendation, and ordered a review of the matter
in June 2013, upon the completion of A.M.C.’s first
year at vocational school.
Caninzun v. Caninzun, 82 A.3d 455 (Pa.Super. 2013) (unpublished
memorandum at 1-2), appeal denied, 85 A.3d 481 (Pa. 2014). On June 5,
2013, this court affirmed the trial court’s October 29, 2012 order. Id.In accordance with the trial court’s October 29th order that directed a
hearing be held upon completion of A.M.C.’s first year of vocational school, a
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hearing was held on June 18, 2013, before Hearing Officer Tierney. On
June 26, 2013, Officer Tierney filed a hearing summary concluding A.M.C.
does not have the capability to support himself. An order was entered that
same day setting arrears at $5,022.62 as well as calculating Father’s support
obligation at $610.33 per month plus $60 towards arrears. Father filed
timely exceptions which the trial court denied in part and granted in part by
order dated December 4, 2013.1 This appeal followed and Father presents
two questions for our consideration:
Whether the lower Court erred in continuing support
for the adult (disabled) child in light of the facts and
circumstances of this case[?]
Whether the lower Court erred in continuing support
for the adult (disabled) child despite failure to bring
medical evidence under 1910.29(b)(2)[?]
Father’s brief at 1.
The relevant standard of review is 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
1
The December 4, 2013 order granted Father’s exception regarding his
argument that Hearing Officer Tierney failed to modify the support order
retroactive to October 25, 2012, the date Father’s petition was filed. The
trial court noted it was precluded from acting on Father’s petition until the
Superior Court relinquished jurisdiction of Father’s earlier appeal of the trial
court’s October 29, 2012 order.
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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.
Kimock v. Jones, 47 A.3d 850, 854 (Pa.Super. 2012), quoting Brickus v.
Dent, 5.A.3d 1281, 1284 (Pa.Super. 2010).
On appeal, Father contends the trial court’s conclusion that “. . . the
evidence clearly reflects that the child’s mental condition renders him
incapable of self-support” is not supported by competent evidence. (Father’s
brief at 10.) Father also claims Mother failed to provide a physician’s
verification of A.M.C.’s disability as required by Pa.R.C.P. 1910.29(b)(2).
(Id. at 11.)
At the outset, we recognize that as a general rule,
the duty to support a child ends when the child turns
eighteen or graduates from high school. Hanson v.
Hanson, 425 Pa.Super. 508, 625 A.2d 1212 (1993).
However, pursuant to 23 Pa.C.S. § 4321(3), a parent
may be required to support a child who, upon
reaching the age of majority, has a mental or
physical condition that prevents the child from being
self-supporting. Id. “To determine if an order of
support is appropriate, the test is whether the child
is physically and mentally able to engage in
profitable employment and whether employment is
available to that child at a supporting wage.” Id. at
1214.
Kotzbauer v. Kotzbauer, 937 A.2d 487, 489-490 (Pa.Super. 2007),
appeal denied, 952 A.2d 678 (Pa. 2008).
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The following facts are relevant to our disposition of this appeal. At
the evidentiary hearing, Father, Mother, and A.M.C. testified. Father, who
lives in South Carolina, testified he last saw A.M.C. in January of 2013.
(Notes of testimony, 6/18/13 at 24.) He testified he comes to Pittsburgh
four or five times a year to see his children while he stays with his mother.
(Id.) In addition to A.M.C., Father has another child who is 22 years old.
(Id. at 25.)
Mother testified A.M.C. took a machine shop course from September
2012 to May 2013 at the Forbes Road Technical School and received a
certificate. (Id. at 36-37.) The course was paid for by the Office of
Vocational Rehabilitation (“OVR”). (Id. at 53.) Mother testified she has
tried to help A.M.C. socialize and achieve a certain amount of independence
by allowing him to get his driver’s license. (Id. at 53-54.) Mother only
permits A.M.C. to drive within a three to five-mile radius of his home.2 (Id.)
A.M.C. testified that he received a certificate in lathe as well as one in
safety measuring and materials. (Id. at 60.) He was asked about his job
search over the last year, and he replied he has applied multiple times at
Home Depot, McDonald’s in Wilkinsburg, Panera Bread, and Red Lobster in
Monroeville for work as a server, cleaner, or “maybe cashier.” (Id. at 62-
63, 67-69.) A.M.C. also testified he has applied for the army and navy but
has not received any follow-up. (Id. at 70-71.) A.M.C. testified he does not
2
Mother testified A.M.C. has a “teenager driver’s license.” (Id. at 49.)
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have any credit cards and his cell phone is paid for by his mother. (Id. at
63-64, 76.)
The primary purpose of the June 18, 2013 hearing was to determine if
after one year of technical school, A.M.C. had achieved the capability to be
self-supporting. It is clear from the record that having earned a machine
shop technology certificate has not made A.M.C. capable of supporting
himself. After having reviewed the hearing transcript, we are at a loss to
understand Father’s claim that A.M.C. has “demonstrated other life skills
that absolutely negated disability.”3 (Father’s brief at 10.) To the contrary,
the trial court pointed out:
[T]he content of [Child’s] testimony also clearly
reflects his limitations. He has obvious difficulties
with social interaction and comprehension. While he
has received additional occupational training and will
continue to receive assistance from OVR, [Child’s]
disability, as described in the Hearing Officer’s prior
recommendation and affirmed by this court,
continues.
Order, 12/4/13 at 2 (emphasis added).
3
Father’s one-page argument does not explain what “other life skills” he is
talking about. Assuming Father is referring to the driver’s license A.M.C.
obtained, we agree with Mother’s counsel when he stated, “Driving is a
tremendous risk and [Mother] is terrified as am I.” (Notes of testimony,
6/18/13 at 92.) Additionally, the fact that A.M.C. testified he goes on the
internet and can text hardly represent “life skills” that make A.M.C. capable
of self-support.
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As the record supports the trial court’s conclusion and establishes that
Father did not offer any new evidence that A.M.C., after one year of
technical school, is capable of self-support, Father’s first claim is meritless.
Next, we turn to Father’s claim that Mother failed to provide a
physician’s verification of A.M.C.’s disability as required by
Pa.R.C.P. 1910.29(b)(2). Initially, we observe Father fails to support his one
sentence argument with any discussion or citation to legal authority. See
Commonwealth v. Rompilla, 983 A.2d 1207, 1210 (Pa. 2009) (claim is
waived as appellant has failed to cite to any authority supporting her
position and, aside from conclusory statements, she has not developed her
argument on appeal); Commonwealth v. Brougher, 978 A.2d 373,
375-376 (Pa.Super. 2009) (claim is waived if there is no citation to
authority). Accordingly, we find this issue waived. However, even if we
were to address Father’s claim, there is no merit to it. The rule provides:
Rule 1910.29. Evidence in Support Matters
(b) Medical Evidence
(2) Record Proceeding. If the matter
proceeds to a record hearing and the
party wishes to introduce the completed
Physician Verification Form into evidence,
he or she must serve the form on the
other party not later than 20 days after
the conference. The other party may file
and serve an objection to the
introduction of the form within 10 days
of the date of service. If an objection is
made and the physician testifies, the
trier of fact shall have the discretion to
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allocate the costs of the physician’s
testimony between the parties. If there
is no objection, the form may be
admitted into evidence without the
testimony of the physician. In the event
that the record hearing is held sooner
than 30 days after the conference, the
trier of fact may provide appropriate
relief, such as granting a continuance to
the objecting party.
Pa.R.C.P. 1910.29(b)(2). The rule cited by Father provides support obligors
claiming that they are disabled with a mechanism calculated to simplify the
production of medical evidence via a simple hearsay exception. This rule
does not apply to A.M.C.
Accordingly, we see no reason to disturb the order in question.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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