Jones, M. v. Northern, V. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARLENE JONES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
VONSHELT R. NORTHERN : No. 1046 EDA 2022
Appeal from the Order Dated March 17, 2022
In the Court of Common Pleas of Chester County Domestic Relations at
No(s): 00591N2001,
PACSES NO. 015102785
BEFORE: PANELLA, P.J., LAZARUS, J., and McCaffery, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 13, 2023
Marlene Jones (Mother) appeals from the order, entered in the Court of
Common Pleas of Chester County, granting Vonshelt R. Northern’s (Father)
petition to terminate child support for the parties’ adult autistic child (D.N.).
After our review, we conclude that the trial court erred in determining the
hearing officer did not abuse his discretion in (1) denying Mother’s request for
continuance, and (2) denying Mother’s request to reopen the record. We,
therefore, reverse the order terminating child support, and remand with
instructions.
D.N. was born in June 2000. In early childhood, D.N. was diagnosed
with autism spectrum disorder and learning disabilities. On June 18, 2001,
the court entered an order requiring Father to pay child support to Mother,
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who was D.N.’s primary custodian and caretaker. This order remained in
effect for 17 years.
On June 11, 2018, after D.N. turned eighteen, a hearing was held before
Hearing Officer Richard Lombardi. Both parties testified. Following the
hearing, Hearing Officer Lombardi determined D.N. was incapable of
supporting himself and, thus, was not emancipated. Hearing Office Lombardi
found Mother’s testimony “to be entirely credible,” concluding:
It's clear to me from the evidence that was presented, the
evidence was uncontradicted, . . . that, unfortunately, your son
suffers from a number of significant mental and physical issues,
not the least of which is autism and epilepsy. . . . Taken as a
whole, I don’t believe for a moment that your son is capable of
supporting himself. I don’t believe that there is an employer out
there who would hire hm full time at a supporting wage given the
multitude of his issues. Consequently, I find that your son is not
emancipated for purposes of support.
N.T. Hearing, 6/11/18, at 28.
Father did not appeal that determination and, instead, filed a pro se
petition to terminate support on October 18, 2018. Father subsequently
retained legal counsel, who filed a counseled petition to terminate support on
March 4, 2019. A conference was scheduled, but later continued several
times. Thereafter, a hearing was scheduled for January 9, 2020, which was
continued at Father’s request, delayed further due to the COVID-19 pandemic
shutdowns, and ultimately rescheduled for July 30, 2021.
At the July 30, 2021 hearing, neither Mother nor D.N. appeared.
Mother’s counsel appeared. Prior to the start of the hearing, Mother’s counsel
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relayed to Hearing Office Lombardi that, despite several attempts, she had
been unable to contact Mother for the two weeks prior to the hearing.
Mother’s counsel expressed her concern that Mother was ill or hospitalized
because it was unusual for Mother not to respond and Mother had not missed
any previous court hearings. N.T. Hearing, 7/30/21, at 3-5, 40. Mother’s
counsel sought a continuance, which Hearing Officer Lombardi denied. The
hearing proceeded solely on Father’s testimony.
Thereafter, on September 16, 2021, Mother filed a petition to reopen
the record. At a hearing on September 21, 2021, Mother testified to her
medical problems, including high blood pressure, chronic pain, asthma, panic
attacks, and anxiety, and that, in addition to her primary care physician, she
is under the care of a cardiologist, an orthopedist, a pulmonologist, and a
psychiatrist. N.T. Hearing, 9/21/21, at 6-10. With respect to the hearing at
which she did not appear, Mother testified that she missed that hearing due
to her medical conditions. She stated:
I was told by my doctor, immediately I had to go over to
orthopedics because I was having a lot of pain. They thought I
was having a stroke, and I had to go right over the same day of
court to the orthopedic doctor. . . . I was aware of [the hearing
date], but like I mentioned, I had that doctor’s appointment as an
emergency that day as well[.] . . . I knew [the hearing date] was
coming, but I didn’t know it was that same day that I had to go to
the doctor. It truly slipped my mind because I was under a lot of
duress. I will be honest about that. I truly forgot about it[.]
Id. at 4, 12.
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The court denied Mother’s petition to reopen the record. Thereafter, on
November 22, 2021, Hearing Officer Lombardi filed a report and
recommendation terminating Father’s support obligation. Mother filed
exceptions on December 13, 2021, which were denied by the Honorable Ann
Marie Wheatcraft. See Opinion and Order, 3/17/22. Mother filed a timely
notice of appeal, and she raises the following issues for our review:
1. Did the trial court abuse its discretion in terminating child
support for the parties’ autistic, epileptic, disabled son, who
the court previously found to be an unemancipated adult
entitled to support?
2. Did the trial court abuse its discretion in denying Mother’s
counsel’s request for [a] continuance on July 30, 2021?
3. Did the trial court abuse its discretion by denying Mother’s
petition to reopen the record?
Appellant’s Brief, at 4.
This Court has explained:
In Pennsylvania, the duty to support a child generally ceases when
the child reaches the age of majority, which is defined as either
eighteen years of age or when the child graduates from high
school, whichever comes later. 23 Pa.C.S.A. § 4321(3), however,
provides that “parents may be liable for the support of their
children who are 18 years of age or older.” In applying section
4321(3), this Court has found that there is a presumption that the
duty to support a child ends when the child reaches majority:
Ordinarily a parent is not required to support his adult
child[,] but there is a well-recognized exception supported
by abundant authority that where such child is too feeble
physically or mentally to support [himself or herself,] the
duty on the parent continues after the child has attained [his
or her] majority.
When the disability resulting in the child’s inability to be
self-sufficient already exists at the time the child reaches
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the age of majority, however, the presumption is
rebuttable by the adult child upon proof that there are
conditions that make it impossible for her or him to be
employed. . . . To rebut the presumption that a parent has
no obligation to support an adult child, 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. The adult child
has the burden of proof on these issues. Our scope of
review is limited to a determination of whether the trial
court committed an abuse of discretion or an error of law
when making a determination in this regard.
Style v. Shaub, 955 A.2d 403, 408-09 (Pa. Super. 2008) (some citations
omitted) (emphasis added) .
At the hearing, Father testified that he is an independent truck driver
and that he offered D.N. employment helping with deliveries. N.T. Hearing,
7/30/21, at 8-9. Father also testified that D.N. graduated from Upper Merion
High School, id. at 7, and that D.N. worked as a dishwasher at a restaurant
while in high school. Id. at 9. Father stated that he had not lived with D.N.
since D.N. was seven years old, id. at 10, and Father acknowledged that
“technically I really don’t know as far as health-wise what’s really wrong with
[D.N.].” Id. at 11. We emphasize that the bulk of Father’s testimony was in
response to questioning regarding Father’s past employment, his independent
trucking business, his income and expenses, and his work schedule. See id.
at 15-35.
Moreover, this Court has clarified that whether someone is “employable”
does not resolve the issue of whether that individual is entitled to continuing
support from parents. In Com. ex rel. Cann v. Cann, 418 A.2d 403, 405–
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406 (Pa. Super. 1980), the adult child, who had a learning disability, was
unable to earn a supporting wage because of her mental capacity, even though
she worked forty hours per week at a cleaning job and babysitting. Id. at
404–06. This was sufficient to require her father to continue paying support
when it was determined that her living expenses exceeded her income. Id.at 405–06. Thus, an adult child who is mentally or physically disabled is
entitled to support even if he or she is employable, but is incapable of
self-support. See id. at 405 (party seeking to vacate support order “must
demonstrate not just that the child is capable of earning some income, but
that the child is able to earn a sufficient living to be entirely self-
supporting[.]”); see also Kotzbauer v. Kotzbauer, 937 A.2d at 487, 490–
94 (Pa. Super. 2007) (despite working sixteen to twenty hours a week, adult
child was unable to support herself due to her disability, and her father was
responsible for providing continuing support); Hanson v. Hanson, 625 A.2d
1212 (Pa. Super. 1993) (where adult child working part-time jobs was unable
to support herself due to disability, father was responsible for providing
continuing support).
Here, despite Hearing Officer Lombardi finding that D.N. was completely
disabled in 2018, in 2021, the same hearing officer, after hearing only Father’s
testimony, found D.N. fully capable of working full time and supporting
himself. Father has been supporting this child for over 17 years and there
was no evidence indicating that D.N.’s situation has substantially changed.
Because Mother’s request for continuance and to reopen the record were
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denied, there was no opportunity for either Mother or D.N. to rebut the
presumption that support should be terminated simply because D.N. reached
the age of majority. At the conclusion of the hearing, the hearing officer stated
that “[t]he case has been in the system a long time. I understand that, and
that’s part of the reason why I denied the request for a continuance.”
Id. at 38 (emphasis added).
Both parties sought continuances in this matter. Mother sought a
continuance on January 31, 2019, while Father filed motions to continue on
May 15, 2019, October 24, 2019, January 8, 2020, and January 30, 2020.
Thereafter, the hearing was delayed due to COVID-19 pandemic shutdowns.1
Although it was Mother’s responsibility to appear at the July 30, 2021 hearing
or, at the very least, communicate with counsel, the court’s refusal to either
continue or reopen the matter in these circumstances may prematurely punish
D.N., and is, in our opinion, unacceptable.2
We find that the order denying the continuance and refusing to reopen
the record was an abuse of discretion. See Colonna v. Colonna, 791 A.2d
353, 356-57 (Pa. Super. 2001) (“The general rule is that a court may, in its
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1 On February 10, 2021, the parties’ counsel jointly sought a continuance of a
discovery conference scheduled for March 19, 2021, averring discovery and
updated medical information was pending and the “current pandemic of
COVID-19 remans an issue for the litigants and their counsel due to
compromised health issues.” Motion for Continuance, 2/10/21.
2 It appears from the record that Mother may not be in the best physical
condition to advocate for D.N. If it sees fit, the court may wish to explore
appointment of a guardian ad litem for D.N.
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discretion, reopen the case after a party has closed for the taking of additional
testimony, but such matters are peculiarly within the sound discretion of the
trial court.”); Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001)
(standard of review of order denying motion for continuance is abuse of
discretion). Accordingly, we reverse and remand for an assessment and
hearing. We direct the court address what changes, if any, occurred in the
years between the June 2018 hearing and the July 2021 hearing, which
resulted in termination of support, and that the court make specific findings
as to whether, even if employable, D.N. is capable of self-support. Cann,
supra.Reversed and remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2023
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