S.B. v. S.S. ( 2019 )

J-A23018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.S. :
:
Appellant : No. 273 WDA 2018
Appeal from the Order Entered January 22, 2018
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD-15-008183
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 18, 2019
Mother, S.S., purports to appeal from the order filed on January 22,
2018, which addressed the petition for contempt filed by Father, S.B., in this
support matter pertaining to the parties’ son (“Child”), who was adopted by
Father and his late wife in 2007. We quash.
The trial court set forth the history of this case as follows:
Father and Mother are married and have one Child. In
December of 2016, after a contentious, 23-day custody trial, [the
trial court] awarded sole physical and legal custody of the Child to
Father. See orders entered on December 12 and 14, 2016.
Mother appealed, and [the] order was affirmed by the Superior
Court. Mother filed for allowance of appeal in the Pennsylvania
Supreme Court, which was denied.
On March 16, 2017, the parties were before this [c]ourt for
a status conference to discuss the implementation of an “aftercare
plan” to restore Mother’s custodial rights. After the conclusion of
the status conference [the trial court] appointed Mark Gubinsky,
Esquire as the Aftercare Professional in this case and ordered the
parties to cooperate with Mr. Gubinsky and the aftercare plan with
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a goal towards restoring [Mother’s] custodial rights. [The trial
court] ordered that the fees for the Aftercare Professional be
shared equally by the parties. The appointment of an Aftercare
Professional was part of the original custody order by this court,
entered on December 14, 2016. Mother appealed this order.1
Mother failed to comply with the order to work with the Aftercare
Professional.
1 The order for appointment of the aftercare
professional was affirmed by Superior Court. See
appeal at 74 WDA 2017.
Father filed a claim for child support against Mother.
Hearing Officer Chester Beattie presided over the support matter.
On September 7, 2017, Hearing Officer Beattie issued a summary
and recommendation for Mother to pay $3,273.70 per month for
the support of the Child, which subsequently became a final order
of court.
Mother did not file exceptions to the recommendation of the
hearing officer. Mother did not file an appeal of the final order of
court. Mother has also paid NO child support and is now in arrears
for more than $30,000.2 A Petition for Contempt was filed on
November 17, 2017.
2 At the January 18 hearing, Mother stated that she
made three (3) payments of $1,500 each, which were
returned. Mother made out the checks in the name of
the child, which is contrary to the instructions
provided to her which state that all checks should be
made payable to PA. SCDU. It should be noted, that
none of these checks was for the court-ordered
amount of $3,273.70. Accordingly, [the trial court]
found that Mother’s conduct was both obdurate and
vexatious. Mother is a highly educated, intelligent
woman who can certainly follow simple instructions as
to whom the checks for child support should be made
payable.
On January 18, 2018[,] Father presented a Petition for
Contempt and Special Relief. On the same date, Mother presented
an Answer (to Father’s Petition), a New Matter, and a Motion for
Recusal. In the New Matter, Mother asked [the trial court] to
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vacate the order for support and to deem Rule 1910.12
unconstitutional.
Trial Court Opinion, 4/30/18, at 3-4. This appeal followed the entry of an
order addressing the contempt petition. Both Mother and the trial court have
complied with Pa.R.A.P. 1925.
Mother presents the following issues for our review:
1) Did the trial court legally err and abuse its discretion in
denying [Mother’s] New Matter seeking dismissal of the Order for
Child Support because the September 7, 2017, purported order
upon which it is premised is void and invalid as it was not properly
signed and entered by the court; instead it was rubber-stamped
[with the judge’s name] by someone other than Judge Clark, in
violation of the Pennsylvania Rules of Civil Procedure?
2) Did the trial court legally err and abuse its discretion in
denying [Mother’s] New Matter, seeking to declare Pennsylvania
Rules of Civil Procedure 1910.12 and 1910.25 unconstitutional,
where these provisions allow the Domestic Relations Section to
function as prosecutor, factfinder, and adjudicator, creating the
appearance of and allowing for potential bias by permitting the
impermissible commingling of prosecutorial and adjudicatory
functions within the Domestic Relations Section to investigate
alleged support arrears and violations and thus creating a fatal
defect under the Pennsylvania Constitution?
Mother’s Brief at 3.
Before we review the issues presented by Mother, we must address the
timeliness of this appeal, as it appears that Mother’s issues on appeal actually
concern the underlying support order dated September 7, 2017, and are
essentially an appeal from that order beyond the time period permitted by
law. Because the timeliness of an appeal implicates our jurisdiction, we cannot
address the merits of Mother’s issues before determining whether such an
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appeal was timely filed. Krankowski v. O’Neil, 928 A.2d 284, 285 (Pa.
Super. 2007).
It is undisputed that a notice of appeal must be filed within thirty days
of the disputed order. Pa.R.A.P. 903(a). Regarding late attempts to challenge
a support order, we have held that a party may not use a modification petition
as a substitute for an appeal by attempting to relitigate matters adjudicated
by the support order. Florian v. Florian, 689 A.2d 968, 971-972 (Pa. Super.
1997). See Boullianne v. Russo, 819 A.2d 577, 580 (Pa. Super. 2003)
(explaining that a petition to modify an order of support cannot be a substitute
for an appeal). Likewise, a party may not use an appeal from the disposition
of a contempt petition as a substitute for an appeal from the underlying
support order to relitigate matters pertaining to the support. Therefore, in
order to challenge a support order, the party must take a timely appeal from
the order.
Our review of the certified record reflects that Father filed a claim for child
support and the matter was referred to a hearing officer. The hearing officer
issued a summary and recommendation for Mother to pay child support to
Father. The recommendation was reduced to an order dated September 7, 2017.
Order, 9/7/17, at 1. Pursuant to Pa.R.A.P. 1910.12(f), Mother had twenty days
in which to file exceptions to the order. It is undisputed that Mother did not file
exceptions. Accordingly, pursuant to Pa.R.C.P. 1910.12(g), the order dated
September 7, 2017, became final on September 27, 2017. Consequently,
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Mother had until October 27, 2017, to file a timely appeal from the order dated
September 7, 2017. Again, it is undisputed that Mother did not file an appeal
from that order.
Subsequently, on November 21, 2017, the Allegheny County Domestic
Relations Office brought a petition for contempt against Mother due to her failure
to pay child support as directed by the September 7, 2017 order. Petition for
Contempt, 11/21/17, at 1. Also, Father filed a Petition for Contempt and Special
Relief on December 1, 2017. On January 22, 2018, the trial court entered an
order addressing the contempt petitions. On February 16, 2018, Mother filed
this appeal from the January 22, 2018 order. Notwithstanding the fact that the
appeal period for the order dated September 7, 2017, expired on October 27,
2017, Mother filed with the trial court a response on March 7, 2018, in which she
challenged the validity of the support order dated September 7, 2017, and the
constitutional authority of the Allegheny County Domestic Relations Office to
handle such matters. Exceptions to Hearing Officer’s Recommendations, 3/7/18,
at 1-11.
Pa.R.A.P. 903(a) requires a notice of appeal to be filed within thirty days
after the order dated September 7, 2017, became final. Because Mother did not
pursue a timely appeal from the trial court’s support order dated September 7,
2017, she may not do so now. Therefore, this Court is without jurisdiction to
hear the issues because they relate to the support order dated September 7,
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2017, which Mother failed to challenge or appeal. Hence, we are constrained to
quash Mother’s appeal because it pertains to the order dated September 7, 2017.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2019
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