A.S.C. v. N.B.C. ( 2018 )

J-S30013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.S.C., NOW A.S.L., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
N.B.C.,
Appellee No. 1427 WDA 2017
Appeal from the Order Entered August 31, 2017
In the Court of Common Pleas of Indiana County
Civil Division at No(s): 10486 CD 2012
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 16, 2018
A.S.C., now A.S.L., (Mother) appeals from the August 31, 2017 order
that granted the Petition for Special Relief/Modification of Marital Settlement
Agreement filed by N.B.C. (Father) relative to a modification of the amount of
child support Father pays to Mother for the support of the parties’ two children.
We affirm.
The trial court provided the following factual and procedural history of
this matter, stating:
The parties were married in May of 2006 and divorced on
June 25, 2012. The March 22, 2012 Marital Property Settlement
Agreement was incorporated into the final Divorce Decree and
Order filed in the Court of Common Pleas of Indiana County,
Pennsylvania. The parties have two children, [A.C.], age 10, born
June [] 2007, and [D.C.], age 7, born July [] 2010. The Marital
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* Retired Senior Judge assigned to the Superior Court.
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Property Settlement Agreement provided that [Father] would pay
child support to [Mother] in the amount of $2,000.00 by the 15th
of every month. In addition to the Marital Property Settlement
Agreement, the parties entered into a Consent Custody
Agreement on March 22, 2012, which granted the parties shared
legal custody with [Mother] receiving primary physical custody
and [Father] receiving partial physical custody.
Subsequent to the divorce, the parties, both Officers in the
United States Military, moved to the state of California. Both
parties have since remarried, seemingly causing the parties[’]
previously amicable post-divorce relationship to unravel. Then, in
the spring of 2015, [Mother] made a military transfer to Bahrain.
Upon learning of [Mother’s] military transfer, [Father] initiated a
custody action in California. Within the course of said lengthy
custody action, the parties began to communicate and negotiate
via multiple platforms since [Mother] was stationed overseas. The
parties exchanged several offers and counteroffers while
negotiating terms and eventually reached an agreement regarding
each party’s custody rights to children. The agreement provided
that [Mother] would receive sole legal and physical custody of the
minor children, that [Father] would receive specific visitations
times, and that the children were allowed to relocate with
[Mother] whenever it becomes necessary for [Mother’s]
employment even without [Father’s] approval. Both parties
signed this agreement on March 30, 2016[,] and the agreement
was filed on April 29, 2016. It is important to note that this
agreement made no mention of child support payments.
The parties’ stories regarding the formation and terms of
said agreement differ and have led to the present matter.
[Father] claims that he signed the March 30, 2016 agreement
after negotiating a modification in child support payments with
[Mother]. Citing to text message communications and emails
between the parties, [Father] avers that the parties had an
agreement to modify the child support payments from the $2000
per month contained in the Marital Property Settlement
Agreement to $500 per month from May 1, 2016 through April 30,
2017; then $1,000 per month from May 1, 2017 through April 30,
2018; and lastly to $1,500 per month from May 1, 2018 through
July 22, 2028. [Father] further avers that the parties did not
formalize the child support portion of their agreement because
Pennsylvania, not California, maintained jurisdiction over the child
support payments. Moreover, [Father] cites additional messages
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indicating that [Mother] was to draft the child support provision in
another document which the parties would sign and notarize and
that [Mother] would file in Pennsylvania. It is [Father’s] argument
that he signed the terms of the California agreement after the
parties agreed to the child support modification terms, and that
he relied upon [Mother] to file the second part of their agreement
in Pennsylvania. To this point, [Mother] has not filed such a
document in Pennsylvania.
[Mother] claims that no such agreement to modify the terms
of child support was ever reached. She avers that the parties
reached the agreement in exchange for [Mother’s] not pursuing
sanctions and attorney’s fees against [Father] related to their
California custody case. Moreover, [Mother] claims that she has
not had the Apple ID listed in [Father’s] exhibits since 2012/2013,
and that she closed her former Gmail account in the spring of
2015. As such, she claims that nothing would have been sent to
[Father] after 2013 using the Apple ID listed in [Father’s] exhibits.
Since the parties entered into their California agreement,
[Mother] left California and moved with the children to Virginia.
[Father], operating under the belief that the parties reached an
agreement modifying his child support obligation, began making
modified child support payments to [Mother]. [Mother] then
alleged that [Father] was delinquent in his support payments,
leading to [Father’s] receiving a letter from the Commonwealth of
Virginia, Department of Social Services, Division of Child Support
Enforcement, informing him that [Mother] had opened a case
against him. Beginning in late 2016, even after meeting with the
case manager in Virginia and consulting an attorney in Virginia,
[Father’s] wages were garnished. These actions led to the filing
of the Petition under consideration herein.
Trial Court Memorandum & Order (TCM&O), 8/31/17, at 2-4.
The court then set forth the principles of contract law, which it applied
to the facts here to determine whether the parties had agreed to modify the
Marital Settlement Agreement as it related to child support. The court quoted
text and email conversations between the parties, determining that the parties
had reached an agreement to modify the support payments and had
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“manifested an intent to be bound by the terms found in the proposed order
contained in [Father’s] ‘Exhibit H.’” TCM&O at 9-10. The court also found
that the terms were sufficiently definite and that consideration existed. Thus,
the court entered the order dated August 31, 2017, that is now at issue.
Mother appealed and filed a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2). The trial court responded by
issuing an opinion in support of its order, stating:
The [c]ourt was called upon to determine whether an
agreement existed between the parties to modify the parties’
original Marital Property Settlement Agreement, filed on March 22,
2012. The primary issue was whether the parties agreed to
modify the amount of child support [Father] would pay [Mother]
in exchange for [Father’s] not opposing [Mother’s] desired
relocation from the state of California to Virginia, and whether
[Father] gave [Mother] sole legal and physical custody of the
parties’ two minor children.
. . .
The substantive issue before the [c]ourt was whether the
parties reached an agreement to modify the terms of [the] child
support payment. To make this determination, the [c]ourt looked
to basic principles of Pennsylvania contract law.
The primary issue on appeal is jurisdiction and venue. Most
counts in [Mother’s] Statement of Matters Complain[ed] Of
address jurisdiction. The California court that handled the parties’
custody case specifically declined to address issues of support and
asserted that Pennsylvania retained jurisdiction over matters
regarding support and matters not involving custody directly.
The parties filed a Property Settlement Agreement (“the
Agreement”) in this [c]ourt on March 22, 2012[,] in which the
parties agreed that the [A]greement was to be construed under
the laws of the Commonwealth of Pennsylvania in Paragraph 29
of the Agreement. The Agreement specifically addresses the issue
of child support in Paragraph 28. Additionally, [Mother] stated in
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text messages and in an email (that corroborates the text
messages) that she would file the agreement in a Pennsylvania
court, as evidenced in [Father’s] Brief in Support of his Petition for
Special Relief a[t] Exhibit F … and Exhibit J.
[Mother] also contends that this [c]ourt abused its
discretion by failing to hear any testimony about the allegations
in the filed pleadings. This matter came before this [c]ourt on
[Father’s] Petition for Special Relief and Modification of Marital
Settlement Agreement and the parties agreed that they would
submit briefs outlining their respective positions on the very
matter decided. This agreement was outlined in an Order of Court
dated April 10, 2017.
Conclusion
Applying the facts of this case to the contract principles, the
[c]ourt found that the parties reached an agreement to modify the
child support payments for the reasons set forth in the Opinion
and Order of Court dated August 31, 2017.
Trial Court 1925(a) Opinion (TCO), 11/22/17, at 1-2 (emphasis in original).
Now, on appeal, Mother raises the following issues for our review:
1. Does a Pennsylvania trial court have jurisdiction to enter a child
support order when the subject children never resided in
Pennsylvania and neither parent is a resident?
2. May a trial court hear no testimony whatsoever, and not follow
any of the rules of civil procedure, but proceed to make findings
of fact and enter a decision retroactive to a date and time prior
to enforcement actions of another state, prior to any request
for modification?
3. May a trial court apply Pennsylvania contract law concepts,
despite the parties[’] having resided in California, and without
considering California laws regarding how any alleged
negotiated child support agreement or alleged contract must
be approved before becoming a child support [o]rder?
4. May a trial court apply contract law only to alleged
negotiations, … agreement or contract, without ever
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considering the best interests of the children or the children’s
interests in the support decision?
5. May a trial court accept a child support case but never hear any
testimony whatsoever regarding the parties’ income or
children’s needs and expenses and failing to make any findings
on any support calculations, deviations, needs, expenses, or
any other support issues beyond the alleged negotiations of an
alleged contract?
6. May a trial court allow a party to forum shop between at least
three (3) states to pick a state more beneficial to him and his
child support obligations?
Mother’s brief at 5-6.
Initially, we note that when reviewing a child support order, we are
guided by the following well-settled standard:
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) (quoting
McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (internal citations
omitted)).
As noted by the trial court, Mother’s central argument is that
Pennsylvania does not have jurisdiction over this support matter. Rather, she
contends that because several states are involved, the federal Full Faith and
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Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B, is
controlling and pre-empts similar state laws. Noting that Father is a resident
of California and that she and the children reside in Virginia, Mother claims
that pursuant to the FFCCSOA, Father should have filed his modification order
in California and registered the Pennsylvania order there. Mother then quotes
various sections of the FFCCSOA, which she contends direct that California is
the proper jurisdiction to hear Father’s modification petition.
Father counters Mother’s argument by pointing out that the FFCCSOA
provides that states are required to enforce child support orders entered in
another state and limits a state’s ability to modify another state’s child support
order. In other words, Father asserts that the FFCCSOA does not apply to the
instant situation, because the Pennsylvania court is not being asked to enforce
or modify another state’s child support order. Rather, the court here in
Pennsylvania considered Father’s request to modify the child support provision
in the parties’ Martial Settlement Agreement that was incorporated in the
divorce decree issued in Pennsylvania. Father cites Sections 7201(a) and
7205(a) of the Uniform Interstate Family Support Act (UIFSA), 23 Pa.C.S. §§
7201(a) and 7205(a), which he contends provides guidance regarding
jurisdiction for the situation presently before this Court. The pertinent
language of these sections of the UIFSA provide:
§ 7201. Bases for jurisdiction over nonresident
(a) Jurisdiction.—In a proceeding to establish or enforce
a support order or to determine parentage of a child, a tribunal
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of this State may exercise personal jurisdiction over a
nonresident individual or the individual’s guardian or
conservator if any of the following apply:
. . .
(2) The individual submits to the jurisdiction of this
State by consent in a record, by entering a general
appearance or by filing a responsive document having
the effect of waiving any contest to personal
jurisdiction.
23 Pa.C.S. § 7201(a)(2).
§ 7205. Continuing, exclusive jurisdiction to modify child
support orders
(a) Extent.—A tribunal of this State that has issued a child
support order consistent with the law of this State has and shall
exercise continuing exclusive jurisdiction to modify the child
support order if the order is the controlling order and:
. . .
(2) even if this State is not the residence of the
obligor, the individual oblige or the child for whose
benefit the support order is issued, the parties consent
in a record or in open court that the tribunal of this
State may continue to exercise jurisdiction to modify
the order.
23 Pa.C.S. § 7205(a)(2).
Considering Father’s assertions, it appears that his position is
controlling. Moreover, we cannot overlook the language of Section 7205 that
indicates that a Pennsylvania court “shall exercise continuing exclusive
jurisdiction to modify” a child support order “even if [Pennsylvania] is not the
residence of the obligor, the individual oblige or the child for whose benefit
the support order is issued….” Id. Having reviewed the record in this matter,
we are compelled to conclude that Mother is due no relief with regard to Issue
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1. Moreover, Mother’s argument in which she attempts to support her third
issue centers on her contention that Pennsylvania does not have continuing
jurisdiction in this case, i.e., California law should have been applied as
directed under the FFCCSOA.1 For the same reasons with regard to our
discussion of Issue 1, we likewise conclude that Mother’s jurisdictional
argument relating to Issue 3 provides her no relief.
We next turn to Mother’s second issue wherein she contends that it was
error for the court to have the parties submit the matter on briefs rather than
to hold a hearing to determine whether a change in circumstances occurred,
what constituted the parties’ incomes, what the children’s needs were and the
impact of the support guidelines on the particular circumstances of this case.
Mother also contends that the court incorrectly imposed the change in the
support amount to a point in time prior to the date of the filing of Father’s
petition. Father responds that the parties had agreed that instead of a
hearing, they would each submit briefs and exhibits to support their respective
positions as to whether an agreement to modify the terms of the Marital
Settlement Agreement was reached.
Notably, the trial court indicated that “[p]ursuant to the April 10, 2017
Order of Court, the parties agreed to submit case briefs in lieu of a hearing on
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1 In the context of the custody litigation, the California court declined to
consider any child support issues and directed that Pennsylvania had
continuing jurisdiction over any support matters. See TCO at 2.
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this matter.” TCM&O at 1. Mother not only agreed that no hearing was
needed, but she also fails to indicate when/where in the record she objected
to a lack of a hearing. Therefore, we are compelled to conclude that Issue 2
has been waived. As support for our waiver disposition, we rely first on
Pa.R.A.P. 2117(c), which states:
(c) Statement of place of raising or preservation or issues.
Where under the applicable law an issue is not reviewable on
appeal unless raised or preserved below, the statement of the
case shall also specify:
. . .
(4) Such pertinent quotations of specific portions of the
record, or summary thereof, with specific reference to
the places in the record where the matter appears (e.g.
ruling or exception thereto, etc.) as will show that the
question was timely and properly raised below so as to
preserve the question on appeal.
We also note that Pa.R.A.P. 302 (“Requisites for Reviewable Issue”),
provides that “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Likewise, Pa.R.A.P. 2119(e) (“Argument”)
directs that “an issue is not reviewable on appeal unless raised or preserved
below[.]”
In her fourth issue, Mother contends that the trial court did not consider
the best interests of the children in its determination that the parties had
entered into a modification of the Marital Settlement Agreement relating to
child support. Citing Knorr v. Knorr, 588 A.2d 503 (Pa. 1991), Mother
asserts that “child support was a child’s right and parents could not ‘bargain
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away the rights of their children.’” Id. at 505. Both parties rely on Kraisinger
v. Kraisinger, 928 A.2d 333, 340 (Pa. Super. 2007), which states that
“parties can make an agreement as to child support if it is fair and reasonable,
made without fraud or coercion, and does not prejudice the welfare of the
children.” The Kraisinger decision held that the parties’ agreement violated
such a standard because the father was required to pay substantially less
support than the guidelines would require and, therefore, it was not fair or
reasonable and prejudiced the children’s welfare.
Although Mother did make reference to the support guidelines in her
brief with attached exhibits submitted to the trial court in response to the brief
with attached exhibits submitted by Father, these references were not
supported by or contained any evidence as to a calculation of what the
guideline amount would or should be. Specifically, Mother’s brief notes that
Father suggested a stipulation providing that the parties recognized that the
amount of support was below the guideline amount. Mother’s brief (to trial
court), at 7, 16. However, Mother merely requested that the trial court, if it
granted Father’s petition to modify, calculate the amount of support according
to the child support guidelines. Id. at 17. Without more, it appears that the
trial court with reliance on the numerous emails submitted to the court found
that consideration of the best interests of the children was taken into account.
Again, Mother did not raise this concern with the trial court until she filed her
statement of errors complained of; nor does the court discuss this issue in
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either of its opinions. Therefore, we must conclude that Mother has waived
Issue 4.
Lastly, we consider Mother’s argument that relates to Issue 6.2
Essentially, Mother contends that Father was forum shopping for a state that
would advantage him and/or disadvantage her. Mother attempts to support
her position by stating that under the FFCCSOA either California or Virginia
would be the proper jurisdiction to consider Father’s petition for modification.
Specifically, Mother argues that Father should have sought the child support
modification in California, where he resided, where the child custody and
sanctions issues were being litigated and then were decided, where Mother
had retained an attorney, and where the support negotiations had occurred.
Mother also suggests that Virginia would have been an appropriate state in
which Father could have filed his modification petition in that she and the
children lived in Virginia and that Virginia had begun enforcement of the prior
support order by attaching Father’s wages. Mother asserts that Father did not
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2 In her list of issues provided in her brief, Mother does not present an
argument section directed at what she identifies as Issue 5. Rather, she
provides argument identified as Issue 5, which in actuality is her position
regarding Issue 6. Therefore, we are compelled to conclude that Issue 5 is
waived. See Pa.R.A.P. 2119(a) (“[A]rgument shall be divided into as many
parts as there are questions to be argued[.]”). See also In re. R.D., 44 A.3d
657, 674 (Pa. Super. 2012) (“The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal
authority.”); Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa.
Super. 2007) (stating that an issue is waived if no argument is presented in
support of a challenge to trial court’s determination).
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seek the modification in either Virginia or California because he assumed those
two states would not recognize the parties’ negotiations or that those states
would determine that he owed a higher amount due to the established support
guidelines that existed in those two states.
Again, we are unable to determine where Mother raised this issue below.
Moreover, the record shows only that Father filed his modification petition in
Pennsylvania because the child support issue arose out of that portion of the
marital settlement agreement that addresses child support. Also, as noted in
footnote 1 herein, the California court refused to consider any child support
issues, indicating that Pennsylvania had jurisdiction. The trial court was
simply responding to Father’s petition requesting the child support
modification. In fact, no evidence of forum shopping appears in the record.
Therefore, this issue does not provide Mother with any relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2018
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