R.S. v. K.S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
K. S. : No. 2948 EDA 2016
Appeal from the Order August 19, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): No. 2007-31635,
PACSES#792109797
BEFORE: PANELLA, MOULTON, and RANSOM, JJ.
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 02, 2017
R.S., (“Mother”) appeals from the August 19, 2016,1 support order
entered in the Montgomery County Court of Common Pleas, which ordered
K.S. (“Father”) to pay support to Mother for the parties’ two minor children.
After careful review, we affirm.
Mother and Father were married in January 1999, and have two minor
children, H.S. born in January of 2000, and A.S. born in April of 2004
(collectively, “the Children”). 2 In December 2007, Father filed a complaint in
divorce. Prior to the parties’ divorce, Father moved to Anchorage, Alaska with
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1
While the trial court dated the order August 18, 2016, it was docketed the
next day, August 19, 2016. Therefore, we refer to the order as having been
entered on August 19, 2016.
2
We derive these facts from this Court’s memorandum. Spone v. Spone,
108 A.3d 99 (Pa. Super. 2014) (unpublished memorandum).
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his girlfriend. In November 2009, the divorce decree was entered. In July
2010, Father filed a Motion for Reconsideration of the Supplemental Support
Memorandum, the trial court granted several of Father’s requests and reduced
his contribution to the Children’s private school. In August 2010, Father
appealed the trial court’s order, which this court dismissed for failure to
include pertinent transcripts in the certified record. Spone v. Spone, 29 A.3d
842 (Pa. Super. 2011) (unpublished memorandum). In April 2013, Father
again appealed to this Court, challenging both the support order and a
supplemental support order entered in March 2013. This Court affirmed in
part, and remanded with instructions for the trial court to address Father’s
health insurance contribution. Spone v. Spone, 108 A.3d 99 (Pa. Super.
2014).
The trial court summarized the relevant facts and procedural history as
to the instant appeal as follows:
On January 13, 2015, a hearing was held in this matter before a
Conference Officer in Support in the Domestic Relations Section
of the Court of Common Pleas, Montgomery County on [Father’s]
Petition to Modify Support filed March 3, 2014. A support order
was issued on March 2, 2015, [Mother] filed Exceptions to the
Recommendation of the Conference Officer/Support Order.
On November, 10 2015 and May 6, 2016, hearings were held
before the court on [Mother’s] support exceptions. Both parties
were present at the November 10, 2015, hearing, but [Father]
who lives in Alaska, testified by telephone at the May 6, 2015
hearing.[FN1]…
[FN1] Following the November 10, 2015 hearing, the
court took the support matter under advisement. On
November 23, 2015, [Mother] filed an Emergency
Motion to Reopen the Record for Additional Testimony
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Regarding [Father’s] Business Income Earnings. On
April 1, 2016 the court granted the motion and the
support exceptions were scheduled for additional
testimony on May 6, 2016.
On August 18, 2016, the court issued an order as follows:
AND NOW, this 18th day of August, 2016, upon consideration
of [Mother’s] March 20, 2015 Support Exceptions and
[Mother’s] April 15, 2016 Petition for Contempt, following
hearings on November 10, 2015 and May 6, 2016, and upon
consideration of [Mother’s] November 23, 2015
Memorandum of Law, [Father’s] December 10, 2015
correspondence to the Court, [Mother’s] May 10, 2016
Supplemental Memorandum of Law, and [Father’s] May 16,
2016 correspondence to the Court, it is hereby ORDERED
and DECREED as follows:
[Mother’s] Support Exceptions are GRANTED as follows:
[Father] shall be held to an income/earning capacity of
$3,806.00 per month (based on his salary/earnings as
stated in his 2013 federal tax return).
[Mother] shall be held to an income/earning capacity of
$2,661.00 per month.
Based on the above monthly amount, [Father’s] monthly
support obligation is as follows:
$913.00 per month for two children
$185.17 per month for medical insurance provided by
[Mother]
$1,098.17 per month TOTAL
Unreimbursed medical expenses are to be paid as
follows:
59% by [Father] and 41% by [Mother].
[Mother’s] request to reinstate [Father’s] support
obligation for parochial school, summer camp, and childcare
is DENIED.
All other terms and conditions of the March 2, 2015
support order shall remain in full force and effect.
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[Mother’s] April 15, 2016 Petition for Contempt is
GRANTED. [Father] shall pay a fine of $500.00 as a sanction
for failing to comply with the [c]ourt’s April 1, 2016 order.
Payment may be made at the Montgomery County
Prothonotary Office in the Montgomery County Courthouse.
Trial Court Opinion, 12/16/16, at 1-2 (some footnotes omitted).
In September 2016, Mother timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued a responsive opinion.
Mother raises the following issues for review:
1. Whether the [t]rial [c]ourt erred in reducing Mother’s child
support where Father intentionally and willfully failed to comply
with a Court Order and produce his personal and business tax
returns and therefore, concealed his earnings and ownership in
his business?
2. Whether the [t]rial [c]ourt erred in reducing Mother’s child
support where the [c]ourt did not use the correct income and
earnings for Mother and had no evidence of Father’s true
income and earnings?
3. Whether the [t]rial [c]ourt erred in finding Father in contempt
and only sanctioning Father $500 for his intentional and willful
concealment of his earnings and failures and refusals to obey
an Order of Court and produce his income and earnings?
Mother’s Brief at 1.
Our standard of review in child support cases is well settled:
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
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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)).
Mother first asserts that Father perjured himself during testimony and
purposefully withheld complete information about his income, including his tax
returns. Thus, according to Mother, the trial court erred in reducing Father’s
support obligation. Mother’s Brief at 6. However, the trial court notes:
The March 2, 2015 support order directed that [Father] pay
[Mother] $1,029.17 in child support. [Mother] filed exceptions to
that order. Following hearings on [Mother’s] support exceptions,
the court issued its findings and decision in the August 18, 2016
order. The court’s August 18, 2016 support order directed that
[Father] pay [Mother] $1,098.17 in child support, an increase in
[Father’s] support obligation of $69.00 per month. Therefore, the
court did not “err” in reducing [Mother’s] child support; the court,
in fact, increased her child support. Furthermore, based on the
evidence and testimony presented in this matter, the court
increased [Father’s] net income for purposes of calculating his
support obligation from $3,444.00 per month, as stated in the
March 2, 2015 support order to $3, 806.00 per month, as stated
in the court’s findings in the August 18, 2016 order.
Trial Court Opinion at 5.
Furthermore, at the hearing, Mother did not object to proceeding
without the tax returns. The trial court noted that Mother’s counsel did not
argue that the court could not render a decision without the court-ordered
discovery. Trial Court Opinion at 5. In fact, trial counsel stated that the court
could “close the record”. Id. citing Notes of Testimony 5/6/16 at 46. Thus,
we find this issue waived. See Fillmore v. Hill, 665 A.2d 514, 516 (Pa.
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Super. 1995) (“[W]e note that in order to preserve an issue for appellate
review, a party must make a timely and specific objection at the appropriate
stage of the proceedings before the trial court.” (citation omitted)).
Mother’s second and third issues are also waived. The second issue
presented in the argument section of Mother’s brief poses whether the lower
court had a duty to investigate Father’s earnings. Mother’s Brief at 19. The
third issue posed in the argument section states that Father had the burden
to prove changed circumstances. Mother’s Brief at 22. Neither of these issues
were raised in Mother’s Statement of Questions Involved, nor in her 1925(b)
statement. See Jahanshahi v. Centura Dev. Co., 816 A.2d 1179, 1189 (Pa.
Super. 2003) (“Claims which have not been raised in the trial court may not
be raised for the first time on appeal.”); see also Pa.R.A.P. 302(a). As Mother
failed to properly raise these claims, we decline to review them.
Furthermore, the second and third issues raised in the Questions
Presented portion of Mother’s brief are not addressed at all in the Argument
section. It is well established that a failure to argue and to cite to any
authority supporting any argument constitutes a waiver of issues on appeal.
Korn v. Epstein, 727 A.2d 1130, 1135 (Pa. Super. 1999). Pa.R.A.P. 2119(a)
provides in relevant part that the argument shall be “followed by such
discussion and citation of authorities as are deemed pertinent.”
It is the [A]ppellant who has the burden of establishing [her]
entitlement to relief by showing that the ruling of the trial court is
erroneous under the evidence or the law. Where the [A]ppellant
has failed to cite any authority in support of a contention, the
claim is waived.
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Id. (citations omitted). Thus, we conclude that these issues are waived.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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