D.Y.C. v. J.S. ( 2015 )

J. A11006/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
D.Y.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
J.S., : No. 1462 EDA 2014
:
Appellant :
Appeal from the Order Entered April 4, 2014,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 04-09396, PACMS 00773690
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 09, 2015
Appellant, J.S. (“Husband”), appeals from the order seizing assets
from his bank account in order to satisfy his child support obligation. We
affirm.
The case has an extensive nine-year history that began when appellee,
D.Y.C. (“Wife”), filed a complaint for divorce in 2004. We adopt the trial
court’s recitation of the procedural history.
On March 13, 2006, [Husband] and [Wife]
reached an agreement on the amount of child
support to be paid by [Husband]. In an Order dated
March 13, 2006, the Honorable Toby Dickman
ordered that the amount of arrears related to child
support be addressed in equitable distribution. On
March 23, 2011, [Husband] and [Wife] attended a
hearing before an equitable distribution Master which
resulted in a Report and Recommendation.
Thereafter, [Husband] filed a Motion to remand the
case back to the Master. On April 12, 2011, the
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parties entered into an agreed support Order,
wherein [Husband] pays $391 per month basic child
support, and $50 toward arrears, for a total of $441
per month (Agreed Support Order”). On August 22,
2011, the Honorable Carolyn Carluccio entered an
Agreed Order granting [Husband]’s Motion to
remand the equitable distribution claim to the Master
and containing a provision that “[t]he Master’s
decision is binding upon the parties and shall be
issued with a 236 Notice entered as a Judgment
Lien.” On December 17, 2012, the parties again
appeared before the equitable distribution Master.
On February 6, 2013, a Master’s Report, Decision,
and Judgment upon Equitable Distribution, Alimony,
Counsel Fees and Costs (hereinafter “2013 Master’s
Report”) was entered which recommended that
judgment be entered in favor of [Wife] and against
[Husband] in the amount of $30,382.50,
recommended charging [Husband]’s account in the
support action in the amount of $7,852.23 in
arrearages, and further recommended denying
[Husband]’s claim for attorney’s fees and costs.
Thereafter, on February 8, 2013, [Husband] filed
timely exceptions to the Master’s Report dated
February 6, 2013.
On June 14, 2013, the Honorable Garrett Page
issued an Order ruling that the parties’ August 22,
2011 Agreed Order legally binds the parties to the
2013 Master’s Report dated February 6, 2013 and
that said Agreed Order was not modifiable by the
Court. Subsequently on July 25, 2013, the
Honorable Garrett Page issued a Divorce Decree and
Order that divorced the parties from the bonds of
matrimony and further ordered that judgment be
entered in favor of [Wife] and against [Husband] in
the amount of $30,382.50 and [Husband]’s account
in the support action be charged in the amount of
$7,852.23 in arrears. On August 19, 2013,
[Husband] filed a fast track appeal pursuant to
Pa.R.C.P. 904(f) to the July 25, 2013 Divorce Decree
and Order. That matter is still pending on appeal
with the Superior Court.
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On January 17, 2014, pursuant to the
Pennsylvania Consolidated Statutes Title 23 Section
4304.1 and 4305 and Pa.R.C.P. 1910.23(a), the
Honorable Kelly Wall, issued an “Order to Freeze
Assets,” directing Wells Fargo Bank, N.A. to freeze
assets belonging to [Husband] up to $7,852.23, the
outstanding balance of [Husband]’s support arrears.
On January 27, 2014, the Domestic Relations Office
provided notice of the Order to [Husband]. On
February 7, 2014, [Husband] filed an Objection to
Order to Freeze Assets. In [Husband]’s six (6)
paragraph Objection to Order to Freeze Assets,
[Husband] stated that the January 17, 2014 Order
froze funds in his Wells Fargo Bank account in the
amount of $7,852.23, and argued that because he
filed a timely appeal to the July 25, 2013 Decree and
Order that consolidated arrears with funds awarded
in equitable distribution, “this Court lacks any and all
jurisdiction to freeze any funds of [Husband].” On
February 9, 2014, [Wife] filed a Motion to Overrule
the Objection to Order to Freeze Assets arguing that
[Husband]’s objection cannot form the basis of a
valid objection to the Order to Freeze Assets. This
Court received both petitions and scheduled oral
argument on [Husband]’s objection, and [Wife]’s
Motion to overrule said objection. On March 28,
2014, both parties appeared and presented
argument to the Court.
[Husband] argued that because the July 25,
2013 Divorce Decree and Order directed that
[Husband]’s account in the support action be
charged in the amount of $7,852.23 and [Husband]
appealed that Order to the Superior Court, DRO had
no jurisdiction to freeze [Husband]’s assets for that
amount of money. [Husband] argued that even
though the Agreed Support Order was being
enforced and [Husband] reportedly had been paying
$50 per month toward the arrears amount, the total
arrears amount (i.e. the $7,852.23) is pending
before the Superior Court so to freeze assets based
on that amount was error. Furthermore, [Husband]
argued that if [Wife] wanted to continue the
enforcement of the July 25, 2013 Decree and Order,
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then [Wife]’s remedy would have been to try to
quash the appeal.
In response, [Wife] argued that under
Pa.R.A.P. § 1701(b)(2), this Court has continuing
jurisdiction to enforce Orders unless [Husband] filed
and requested a supersedeas from the court
pursuant to Pa.R.A.P. § 1731(b). In addition, [Wife]
argued that even if [Husband] had requested a
supersedeas, it should have been denied pursuant to
the August 22, 2011 Order, which states that
[Husband] waived his right to stay enforcement
during the appeal process.
This Court deliberated on [Husband]’s
objection to the court’s authority to issue the
January 17, 2014 Order enforcing the July 25, 2013
Decree and Order during the pendency of appeal.
Thereafter, on April 1, 2014, this Court issued an
Order overruling [Husband]’s objection and granting
[Wife]’s Motion to overrule said objection. On
May 5, 2014, [Husband] filed a timely Notice of
Appeal to the Superior Court.
Trial court opinion, 6/23/14 at 1-5 (references to footnotes omitted).
Husband presents a single issue for this court’s consideration:
Did the trial court abuse its discretion when it
permitted the seizure of [Husband]’s bank account to
satisfy child support arrears when [Husband] had
been making $50.00 month payments on the arrears
pursuant to a 2011 Agreed Support Order?
Husband’s brief at 3.
In reviewing Husband’s claim, we note that our standard of review in
matters of support will allow us to reverse the trial court only when there
has been an abuse of that court’s discretion. Ney v. Ney, 917 A.2d 863,
866 (Pa.Super. 2007).
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The domestic relations section has the authority to “[i]ssue orders in
cases where there is a support arrearage to secure assets to satisfy current
support obligation and the arrearage by: . . . [a]ttaching and seizing assets
of the obligor held in financial institutions.” 23 Pa.C.S.A. § 4305(b)(10)(iii).
The Rules of Civil Procedure implementing this provision are set forth in
Pa.R.C.P., Rule 1910.20(b)(3), 42 Pa.C.S.A. and Rule 1910.23.
Rule 1910.20 provides that “[u]pon the obligor’s failure to comply with a
support order, the order may be enforced . . . pursuant to Rule 1910.23,
attaching and seizing assets of the obligor held in financial institutions.”
Rule 1910.20(b)(3). Rule 1910.23 provides, in relevant part as follows:
(a) Upon identification of an obligor’s assets held
by a financial institution, the court shall, upon
certification of the overdue support owed
by the obligor, enter an immediate order
prohibiting the release of those assets until
further order of court. . . . Service of the order
on the financial institution shall attach the
asset up to the amount of the overdue support
until further order of court.
(b) The domestic relations section shall provide
written notification of the attachment to the
obligor. The obligor and any joint owner of the
account who has been notified by the financial
institution may object to the attachment in
writing or by personal appearance before the
domestic relations section within 30 days after
issuance of the notice. The grounds for an
objection are limited to the following:
(1) no overdue support exists under the
support order or there is a mistake in the
certified amount of overdue support;
(2) there is a mistake in the identity of
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the obligor; or (3) the account is not
subject to attachment as a matter of law.
(c) If no objection is made within 30 days after
notice was issued, the court shall, upon proof
that obligor was properly served with notice of
the attachment, enter an order seizing the
assets up to the amount of overdue support
owed. The order shall be served on the
financial institution and a copy of the order
provided to both parties.
Pa.R.C.P. 1910.23(a)-(c) (emphasis added).1 “[T]he Rule implies, and
common sense dictates, that the court should take some action to consider
and dispose of the objections before proceeding further with a seizure
order.” Cutlip v. Shugars, 815 A.2d 1060, 1062-1063 (Pa.Super. 2003).
Instantly, the premise of Husband’s argument is simple. Husband
argues he was in full compliance with the April 12, 2011 support order and
1
The support guidelines differentiate between “overdue support” and “past
due support” as follows:
“Overdue support,” the amount of delinquent support
equal to or greater than one month’s support
obligation which accrues after entry or modification
of a support order as the result of obligor’s
nonpayment of that order.
“Past due support,” the amount of support which
accrues prior to entry or modification of a support
order as the result of retroactivity of that order.
When nonpayment of the order causes overdue
support to accrue, any and all amounts of past due
support owing under the order shall convert
immediately to overdue support and remain as such
until paid in full.
Pa.R.C.P. 1910.1.
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there was no basis to seize his assets. However, we note that in his
objection to the order freezing his assets, Husband claimed the trial court
lacked jurisdiction to freeze any funds because Husband filed an appeal of
the trial court’s July 25, 2013 order.2
In response, Wife contends Husband’s argument is factually inaccurate
and his statement that he was at all times in compliance with the child
support order is disingenuous at best and completely belied by his history of
support payment maintained by domestic relations. (Wlife’s brief at 7.)3
The March 28, 2014 notes of testimony indicate counsel for Husband
stated: “It is our contention that since the order is on appeal, that there is
no standing, so to speak by DRO to take an order to freeze the assets. And
Common Pleas and DRO has [sic] no jurisdiction at this time to address that
particular amount of money.” (Notes of testimony, 3/28/14 at 3.) The trial
court, in its June 23, 2014 opinion, stated, “the objections hearing focused
2
We note that the appeal Husband claimed divested the trial court of
jurisdiction was handed down as an opinion filed on September 2, 2014.
Chen v. Saidi, 100 A.3d 587 (Pa.Super. 2014). In the appeal, there is no
discussion regarding the sum of $7,852.23 that was added to Husband’s
child support arrears.
3
Wife has supplemented her brief with copies of PACSES case financial
summaries which appear to support her position. (See R16b-22b.)
However, we are precluded from considering copies of these records. See
Kessler v. Broder, 851 A.2d 944 (Pa.Super. 2004), appeal denied, 868
A.2d 1201, (Pa. 2005) (on appeal, inclusion in the reproduced record is not
an acceptable substitute for the original certified record);Warfield v.
Warfield, 815 A.2d 1073, 1074 n.1 (Pa.Super. 2003) (this court must rely
solely on the contents of the certified record).
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on [Husband’s] objection as articulated, namely, that the trial court was
divested of jurisdiction and lacked authority to enforce the arrears amount
stated in the July 25, 2013 Decree and Order.” (Trial court opinion, 6/23/14
at 6.) The trial court went on to state:
During the objections hearing, [Husband] did
comment that he was paying $50 per month toward
arrears, but argued this relative to the fact that he
had no issue with Agreed Support Order being
enforced, rather [Husband] took issue with the total
arrears amount frozen (i.e., $7,852.23) because
[Husband] believed that the accuracy of that arrears
amount would be addressed on appeal to the
Superior Court. As [Husband] failed to raise the
issue in his Objection to Order to Freeze Assets
and during the hearing, and also failed to
submit any evidence to the court on the issue,
this court had no reason to assume that the
January 17, 2013 Freeze Asset Order that
specifically states it was issued pursuant to
Pa.R.C.P. 1910.23 did not comply with
1910.23(a), where a representative from DRO
certified that [Husband] owed overdue support
prior to the court issuing the freeze order.
Id. at 6-7 (emphasis added) (reference to notes of testimony omitted).
We have reviewed the certified record. Husband was identified by the
tactical enforcement unit of MCDRS as owing overdue support arrears. As
stated in Rule 1910.23 there are three limited grounds for an objection;
namely, no overdue support exists or there is a mistake in the certified
amount of overdue support; there is a mistake in the identity of the obligor;
or the account is not subject to attachment as a matter of law. Instantly,
Husband did not pursue any of the permitted grounds for objection.
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Based on the above, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2015
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