M.M.F. v. V.A.F.

J-S83032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.M.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
V.A.F. :
:
Appellant : No. 945 EDA 2017
Appeal from the Order February 14, 2017
In the Court of Common Pleas of Northampton County
Domestic Relations at No(s): DR-36710,
PACSES Case #922111536
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 18, 2018
Appellant, V.A.F. (“Father”), appeals from the order entered in the
Northampton County Court of Common Pleas, which finalized the November
10, 2016 order that dismissed Father’s petition to modify the existing
support order. We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Father raises the following issues for our review:
WHETHER THE TRIAL COURT COMMITTED [AN] ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION IN FAILING TO
ADJUST THE PRESENT SUPPORT ORDER AS TO THE
AMOUNT [FATHER] IS TO PAY IN MONTHLY CHILD
SUPPORT RETROACTIVELY TO MAY 2015 TO REFLECT THE
FACT THAT APPELLEE [(“MOTHER”)] HAS BEEN RECEIVING
AN ADDITIONAL $1,201.47 PER MONTH AS: (A) HER PRO
J-S83032-17
RATA PORTION OF FATHER’S PENSION IN THE AMOUNT OF
$701.47; PLUS (B) A PENALTY PROVISION FROM
[FATHER’S] PENSION OF $500 PER MONTH, AND MOTHER
IS PERMITTED TO BE CHARGED RETROACTIVELY DUE TO
THE FACT THAT MOTHER FAILED TO REPORT THIS
ADDITIONAL INCOME AS REQUIRED BY 23 PA.C.S. §
4353(A)?
WHETHER THE TRIAL COURT [COMMITTED] AN ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION IN ESSENTIALLY
CHARGING FATHER WITH THREE (3) FULL-TIME INCOMES:
(A) FOR A MONTHLY PRO RATA PORTION OF HIS FORMER
LUMP SUM DISTRIBUTION FROM A FORMER WORKERS
COMPENSATION SETTLEMENT; (B) FOR A MONTHLY
DISTRIBUTION FROM HIS PENSION OF $201.24; AND (C)
FOR HIS FULL-TIME JOB WITH AMAZON.COM, ANY OF
WHICH SITUTATIONS ALONE WOULD NORMALLY BE
CONSIDERED A “FULL-TIME” JOB AND THUS THIS
“TAKING” REPRESENTS A VIOLATION OF EQUAL
PROTECTION UNDER THE LAW?
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION BY NOT
BIFURCATING THE PRESENT CHILD SUPPORT ORDER
GIVEN THAT [FATHER] DID NOT…START HIS POSITION
WITH AMAZON.COM FOR OVER A MONTH, I.E.[,] UNTIL
OCTOBER 21, 2016, AFTER HE HAD FILED HIS PETITION
FOR MODIFICATION ON SEPTEMBER 12, 2016, YET THE
PRESENT ORDER DOES NOT REFLECT HIS REDUCED
INCOME FOR THE PRIOR FIVE (5) WEEKS?
(Father’s Brief at 4).
Preliminarily, we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-
2119 (addressing specific requirements of each subsection of brief on
appeal). Regarding the argument section of an appellate brief, Rule 2119(a)
provides:
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Rule 2119. Argument
(a) General rule.—The argument shall be divided
into as many parts as there are questions to be argued;
and shall have at the head of each part—in distinctive type
or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations
omitted). “This Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability
to address any issue on review, we shall consider the issue waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding
appellant waived issue on appeal where he failed to support claim with
relevant citations to case law and record). See also In re R.D., 44 A.3d
657 (Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012)
(holding appellant waived issue, where argument portion of appellant’s brief
lacked meaningful discussion of, or citation to, relevant legal authority
regarding issue generally or specifically; appellant’s lack of analysis
precluded meaningful appellate review).
Instantly, the argument section of Father’s brief is significantly
underdeveloped. All three of Father’s issues lack meaningful discussion of
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J-S83032-17
his position, and instead Father mostly restates the facts of his case. See
In re R.D., supra. The citations to authority Father included in his brief fail
to strengthen any argument. Although the authorities Father cited do
involve child support orders, they are not pertinent to Father’s case. See
Hardy, supra; Pa.R.A.P. 2119(a). Therefore, Father waived his issues for
appellate review. See Gould, supra.
Moreover, even if Father properly preserved his issues, we would
affirm on the basis of the trial court’s opinion. (See Trial Court Opinion, filed
May 16, 2017, at 12-19) (finding: (1) Father filed his most recent petition
for modification of support on September 12, 2016, and sought to have
support order modified retroactively to May 2015, when Father claims
Mother began “misrepresenting” her income by failing to report her receipt
of portion of Father’s pension; court denied Father’s request because Father
had direct knowledge of pension payments made to Mother since May 2015,
and could have petitioned to modify support at any point after May 2015,
but Father failed to seek modification of support until September 12, 2016;
thus, Father did not promptly file his most recent support modification
petition; moreover, Father presented no compelling reason for retroactive
application of any modification order to May 2015; further, record does not
indicate Mother misrepresented her income, and Father did not proffer any
other reason to support his retroactivity request; to extent Father disputes
Mother’s entitlement to portion of Father’s pension, this issue has already
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J-S83032-17
been litigated; record is devoid of any evidence requiring court to change
effective date from date of filing of modification petition; (2) court correctly
considered Father’s three sources of monthly income when calculating his
child support obligation; at October 26, 2016 conference, Father reported he
had been hired by Amazon and provided wage certification; Father’s income
from Amazon position constitutes “income” for purposes of child support;
income assessed from Father’s pension and worker’s compensation have
been previously litigated; both funds are “income” for purposes of child
support; Father’s assertion that court violated his equal protection rights in
calculating Father’s income lacks legal basis; (3) regarding Father’s effort to
“bifurcate” current support order to reflect Father’s reduced income between
September 12, 2016, and October 21, 2016, when he was not yet employed
with Amazon, Conference Officer decided there was no basis for Father’s
requested support modification; rather, Conference Officer saw basis for
increase in Father’s support obligation, but she decided against any increase
because it would create undue hardship for Father; given that finding,
bifurcation was unwarranted). Accordingly, Appellant waived his issues for
appeal, and we affirm the court’s order dismissing Father’s petition to modify
the existing support order.
Order affirmed.
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J-S83032-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2018
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Circulated 12/27/2017 04:42 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
DOMESTIC RELATIONS SECTION
·, No.: DR-36710
PASCES No.: 922111536
Plaintiff, Super. Ct. No.: 945 EDA 2�7
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PENNSYLVANIA RULE OF APPELLATE PROCEDURE
1925(a} STATEMENT
AND NOW, this 15th day of May, 2017, the court issues the following
statement:
On March 15, 2017, Defendant v, \�.i::, ("Defendant") filed and
served upon the court a timely Notice of Appeal to the Superior Court of
Pennsylvania from the Order of Court dated February 14, 2017. See Notice
of Appeal, , DR-0036710 (C.P. Northampton Co. February
14, 2017). On April 10, 2017, pursuant to our request under Pa.R.C.P. No.
1925(b), Defendant filed and served upon the court a Concise Statement of
Matters Complained of on Appeal. See Concise Statement,
, DR-0036710 (C.P. Northampton Co. Apr. 10, 2017). For the
reasons that follow, we respectfully suggest that the Defendant's appeal
lacks merit.
BACKGROUND
I. Factual and Procedural History
On March 17, 2010, Plaintiff M.(v\,y, ("Plaintiff") filed a
Complaint for Support seeking support for three children and spousal
support.1 See Complaint for Support, , DR-0036710 (C.P.
Northampton Co. Mar. 17, 2010). On May 10, 2010, following a May 5,
2010 hearing, the undersigned entered an Order of Court requiring
Defendant to pay support for three children in the amount of $1,038.00 per
month, spousal support in the amount of $498.00 per month, and $154.00
per month in arrears. See Order of Court, DR-0036710
(C.P. Northampton Co. May 10, 2010). Defendant filed objections to the
May 10, 2010 Order and a hearing was held on June 2, 2010. See
Objections,. ), DR-0036710 (C.P. Northampton Co. May 10,
2010). On June 8, 2010, the undersigned entered an Order of Court
requiring Defendant to comply with the May 10, 2010 Order. See Order of
Court, J, DR-0036710 (C.P. Northampton Co. Jun. 8, 2010).
On June 14, 2011, the Honorable Paula A. Roscioli entered an Order of
Court modifying the child support based upon one of the three children
having reached the age of majority. See Order of Court,
1
Plaintiff filed a Complaint in divorce against Defendant on September 28, 2007.
See Complaint, Ferraro v. Ferraro, C-48-CV-2007-08484 (C.P. Northampton Co.
September 28, 2007). The parties' divorce was granted on July 18, 2016. See
Decree, Ferraro v, Ferraro, C-48-CV-2007-08484 (C.P. Northampton Co. July 18,
2016).
2
DR-0036710 (C.P. Northampton Co. Jun. 14, 2011). Pursuant to this Order,
Defendant was required to pay child support in the amount of $761.34 per
month for the support of two children, allocated $692.00 per month for
current support and $69.34 for arrears, effective June 8, 2011. See id.
On October 21, 2013, Defendant filed a Petition for Modification
seeking to decrease his child support payments. See Petition for
Modification, . DR-0036710 (C.P. Northampton Co. Oct.
21, 2013). On November 26, 2013, the parties appeared for a Support
Conference with Conference Officer Brad Umholtz ("Umholtz"). See
Summary of Trier of Fact, DR-0036710 (C.P.
Northampton Co. Nov. 26, 2013). Umholtz noted that Defendant reported
that he had worked for Northampton County for twenty years and retired on
January 20, 2012. See id. Defendant was receiving income from his
pension in the amount of $1,402.20 per month. See id. Defendant also
indicated that he received a $120,000.00 lump sum monetary settlement
from a Worker's Compensation claim. See id. Umholtz noted that
Defendant's income calculation was pending submission of Defendant's
Worker's Compensation compromise paperwork by December 4, 2013. See
id.
Upon Defendant's submission of the necessary paperwork, Umholtz
determined that Defendant actually received a lump sum payment of
$135,000.00. See Conference Officer Note, . >, DR-0036710
3
(C.P. Northampton Co. Dec. 6, 2013). Umholtz noted that Defendant's
attorneys received, 20°/o or $27,000.00, of the lump sum payment.
Therefore, in calculating the support obligation, the conference officer
divided the remaining sum of $108,000.00 over sixty-one months, the time
until the youngest child on the support order would reach the age of
majority. See id. This calculation resulted in an attributed monthly income
of $1,770.49 to Defendant per month in each of those sixty-one months,
from the date he entered into the Worker's Compensation Compromise until
the youngest child reached the age of majority. See id. Based upon this
$1,770.49 attributed monthly income, plus the $1,402.20 monthly payment
from his pension, Defendant's total monthly income was calculated as
$3,713.00. See id. Applying the statutory formulas, Umholtz calculated
Defendant's adjusted monthly net income as $3,115.80. See id.
On December 6, 2013, the Honorable Paula A. Roscioli 'entered an
Order setting Defendant's child support obligation at $982.00 per month,
allocated as $893.00 for current support and $89.00 for arrears. See Order
of Court, DR-0036710 (C.P. Northampton Co. Dec. 6,
2013). The support obligation was based upon Plaintiff's adjusted monthly
net income of $1,588.94 per month/ and Defendant's adjusted monthly net
income of $3,115.80. See id. The Order was effective retroactively to the
2Plaintiff's income was based upon six months of paystubs submitted to the
Conference Officer. See Order dated Dec. 6, 2017.
4
date of Defendant's petition for modification, and arrears were set at
$1,107.96. See id.
On January 6, 2014, Defendant filed a timely written demand for a de
novo hearing of the December 6, 2013 Order. See Demand for De Novo
Hearing, , DR-0036710 (C.P. Northampton Co. Jan. 6,
2014) The de novo hearing was originally scheduled for April 2, 2014,
however, the hearing was subsequently rescheduled several times at the
request of Defendant's counsel to allow the parties to take depositions. See
Order of Court, :, DR-0036710 (C.P. Northampton Co. Feb.
26, 2014); Order of Court,· ·, DR-0036710 (C.P.
Northampton Co. Jul. 1, 2014).
!.
On July 3, 2014, while the de novo hearing was still pending,
Defendant filed a "Petition for Review seeking a Reallocation Order due to
Emancipation, effective June 10, 2014." See Petition, .
DR-0036710 (C.P. Northampton Co. Jul. 3, 2014). On July 11, 2014, the
court entered a Modified Order of Court setting the amount of child support
for one child, at $688.00 a month. See Order of Court,
DR-0036710 (C.P. Northampton Co. Jul. 11, 2014). The July 11, 2014 Order
was based upon an adjusted monthly net income for Plaintiff of $1,599.00
and an adjusted monthly net income for Defendant of $3, 115.80. See id.
The effective date of the July 11, 2014 Order was June 10, 2014, the high
school graduation date of the now emancipated child. See id. The total
5
support amount was $688.00, allocated $626.00 for current support and
$62.00 for arrears. See id.
On January 28, 2015, the parties appeared before the Honorable
Leonard N. Zito for a de novo hearing on Defendant's objections to the
December 6, 2013 support order, as modified by the July 11, 2014 Order.
See Notes of Transcript, . , DR-0036710 (C.P. Northampton
Co. Mar. 16, 2015) ("N.T. Jan. 28"). On March 27, 2015, Judge Zito entered
an Order of Court, making the Order of December 6, 2013 final. See Order
of Court, DR-0036710 (C.P. Northampton Co. Mar. 27,
2015). The stipulations in the Order of Court dated July 11, 2014 were to
remain in effect and Defendant was granted the opportunity to petition for
modification upon any change in his pension distribution or other financial
circumstances. See id.
On May 11, 2015, Defendant filed a Notice of Appeal to the
Pennsylvania Superior Court from the Order of Court dated March 27, 2015.
See Notice of Appeal, , DR-0036710 (C.P. Northampton
Co. May 11, 2015). Defendant timely filed his "Concise Statement of Errors
Complained of on Appeal," pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). See Concise Statement, , DR-0036710
(C.P. Northampton Co. Jun. 2, 2015). Defendant alleged the following four
errors:
A. Whether the Trial Court committed an error of law
and/or an abuse of discretion in falling to adjust the
6
$135,000 gross amount of Father's Worker's
Compensation Settlement & Release of January 23,
2013, by properly reducing it by not only the
attorney's fees he paid in the amount of $27 ,000,
but also by $13,500 set aside for Father's potential
future medical expenses as well as an offset of
$934.66 that was paid to DRS for child support at
the time of pay-out of the lump sum, so that Father's
net should have been reduced to $93,565.347
B. Whether the Trial Court committed an error of law
or abuse of discretion in not recognizing that the
remaining net balance of Father's $93,565.34 net
determined hereinabove at Issue A, was determined
by the extremely competent Worker's Compensation
Judge to replace Father's earnings during the
remainder of his work-life expectancy of 402 months
at a rate of payment of $232. 75/month?
C. Whether the Trial Court committed an error of law
and/or an abuse of discretion by not further
recognizing as an alternative theory for reduction,
that Father had used the net balance of his Worker's
Compensation Settlement & Release to not only pay
off accumulated debts he accrued during a period of
time immediately preceding his Settlement, but also
to pay ongoing child support?
D. Whether the Trial Court committed an error of
Law and/or an abuse of discretion in miscalculating
the net amount of Father's present monthly pension
payment from its gross amount of $1,402.947
[Father notes that the larger issue of future child
support is complicated by the Trial Court's erroneous
rulings regarding the only asset of the parties'
marriage, i.e. his Correction Officer's pension that is
the subject of Father's separate appeal filed April 13,
205 @ docket #: C-48-CV-2007-8484.
Id.3
3 The appeal referenced in paragraph D of Defendant's Concise Statement,
FOOTNOTE CONTINUED ON THE NEXT PAGE
7
On June 8, 2015, Judge Zito filed a twenty-two page Pennsylvania
Rule of Appellate Procedure No. 1925(a) Statement thoroughly addressing
each of the issues raised by Defendant and respectfully suggesting that each
of the issues raised by Defendant was without merit. See 1925(a)
Statement, ·, DR-0036710 (C.P. Northampton Co. Jun. 8,
2015). On November 5, 2015, the Superior Court dismissed Defendant's
appeal for failure to file a brief. See , 1450 EDA 2015 (Pa.
Super. 2015).
II. Current Order
On September 12, 2016, Defendant filed a "Petition for Modification of
an Existing Support Order," seeking to reduce his current support obligation.
See Petition for Modification, , DR-0036710 (C.P.
Northampton Co. September 12, 2016). Defendant alleged that (1) he had
a change in employment; (2) Plaintiff had failed to report income she had
been receiving since April 13, 2015, and (3) the court had erred concerning
Defendant's sources of income. See Petition for Modification,
, DR-0036710 (C.P. Northampton Co. Sept. 12, 2016). On October
26, 2016, the parties appeared for a conference on the petition with
conference officer Stacey A. Greaves ("Greaves"). See Conference Officer
Notes, 1, DR-0036710 (C.P. Northampton Co. Oct. 26,
FOOTNOTE CONTINUED FROM THE PREVIOUS PAGE
regarding the parties' spousal support order, was dismissed by the Superior Court
after Defendant failed to file a brief. See ,, 1471 EDA 2015 (Pa.
Super. 2015).
8
2016) ("Conference Notes Oct. 26, 2016"). Greaves noted that Defendant
was seeking an effective date for any modification of April 13, 2015, when
Defendant alleged Plaintiff had started receiving unreported income. See id.
Ultimately, Greaves recommended an effective date of September 12, 2016,
the date of Defendant's filing. See id. Greaves noted that "nothing
precluded either party from filing a Petition earlier ... ; both parties have
employment that was not originally reported to this section by either party .
. . ; and both parties knew, there was a change in ... [Defendant's]
pension." Id.
Defendant reported to Greaves that he had been hired by Amazon as
of October 14, 2016, earning $12.70 per hour and that he was working 40
hours per week. See id. Defendant was also receiving $201.47 gross per
month from his pension. See id. The lump sum settlement from the
Worker's Compensation compromise remained as allocated at $1, 770.49 per
month.4 See id. Greaves required a wage certification for Defendant before
entering a recommended order. See id.
Defendant subsequently provided Greaves with a wage certification
from Amazon indicating Defendant was earning $12.75 per hour working 40
4Greaves noted that Defendant still disputed the Worker's Compensation
compromise income being attributed to Defendant's total income, but that the
Worker's Compensation income had been appealed in de nova court and was
upheld. See id. Therefore, Greaves would continue to include that income ln the
support calculation. See Conference Notes Oct. 26, 2016.
9
hours per week and that his employment began on October 21, 2016.5 See
Follow up Conference Notes, , >, DR-0036710 (C.P.
Northampton Co. Nov. 10, 2016) ("Conference Notes Nov. 10, 2016").
Greaves calculated Defendant's monthly gross income as $4,182.00,
resulting in an adjusted monthly net income of $3,724.00. See id. This
monthly net income took into account Defendant's earnings from Amazon,
the monthly payment from his pension, and the allocation of Defendant's
lump sum Worker's Compensation award. See id. Greaves determined
Plaintiff's adjusted monthly net income to be $3,007.00 based upon
Plaintiff's pay stubs. See id.
Per the Uniform Support Guidelines, there was no monetary basis to
decrease Defendant's support obligation. See id. Rather, there was actually
a basis to increase his support obligation. See id. Greaves determined,
however, that such an increase would cause the Defendant undue hardship.
See id.
On November 10, 2016, Judge Roscioli entered an Order in accordance
with Conference Officer Greaves's recommendation, dismissing Defendant's
Petition to Modify without prejudice, as there was no monetary basis for a
decrease in support. See Order, ! :, DR-0036710 (C.P.
Northampton Co. Nov. 10, 2016). The Orders dated July 11, 2014 and
March 27, 2015 remained in full force and effect. See id.
5 Defendant's reported start date at Amazon varied from Defendant's original
statement to Greaves by one week. See Conference Notes Nov. 10, 2016.
10
On December 6, 2016, Defendant filed a written demand for a de novo
hearing. See Demand for De Novo Hearing, , DR-0036710
(C. P. Northampton Co. Dec. 6, 2016). Defendant and his counsel appeared
before the undersigned for a hearing on January 25, 2017. Plaintiff did not
appear at the time of the hearing. See id. On February 14, 2017, the
undersigned entered an Order making the November 10, 2016 Order of
Court final. See Order, ·, DR-0036710 (C.P. Northampton
Co. February 14, 2017).
III. Defendant's Appeal
Defendant timely filed his Notice of Appeal on March 15, 2017. See
Notice of Appeal, i �, DR-0036710 (C. P. Northampton Co.
Mar. 15, 2017). Per our request under Pa.R.A.P. No. 1925(b), on April 10,
2017, Defendant timely filed his Concise Statement of Matters Complained of
on Appeal. See Defendant's Statement of Matters of Complained of on
Appeal, DR-0036710 (C.P. Northampton Co. Apr. 10,
2017) ("Concise Statement"). Defendant raises the following three issues:
Whether the Tria·I Court committed an error of law
and/or an abuse of discretion in failing to adjust the
present Order retroactively to May 2015 to reflect
the fact that Mother has been receiving an additional
$1,201.47 per month as (a) her pro rata portion of
Father's pension in the amount of $701.47; and (b)
a penalty provision from Father's pension of $500
per month. Mother shall continue to receive
additional income in this amount through August
2017?
11
Whether the Trial Court committed an error of law
and/or an abuse of discretion in essentially charging
Father with three (3) full-time incomes: (a) for a
monthly pro ration portion of his former lump sum
distribution from a former workers compensation
settlement; (b) for a monthly distribution from his
pension of $201.24; and (c) for his full-time job with
Amazon.com, any of which situations alone would
normally be considered a "full-time job" and this
thus represented a violation of equal protection
under the law?
Whether the Trial Court committed an error of law
and/or an abuse of discretion by not bifurcating the
present child support order given that Defendant did
not have his present position in Amazon for over a
month, i.e. October 21, 2016, after he had
previously filed his Petition on September 12, 2016,
yet the present Order does not reflect this reduced
income for the prior five (5) weeks?
Id.
DISCUSSION
It is well established that the Superior Court's scope of review is
limited in child support cases. See Haley v. Haley, 549 A.2d 1316, 1317
(Pa. Super. 1988). It is within the trial court's discretion to determine the
amount of a support Order, and its judgment should not be disturbed on
appeal absent a clear abuse of discretion. Id. (citing Ritter v. Ritter, 518
A.2d 319, 322 (Pa. Super. 1986)). "'On appeal, a trial court's child
support order will not be disturbed unless there is insufficient evidence to
sustain it or the court abused its discretion in fashioning the award."' Id.
(quoting Fee v. Fee, 496 A.2d 793, 794 (Pa. Super. 1985)). A finding of
abuse will be made only upon a showing of clear and convincing evidence.
12
Id. (citing Koller v. Koller, 481 A.2d 1218 (Pa. Super. 1984)). "The role of
an appellate Court in support proceedings is limited and a finding of abuse of
discretion ... [should] not [be] made lightly." See Haley, 549 A.2d at 1317
(citing Hartley v. Hartley, 528 A.2d 233 (Pa. Super. 1987)); see also Shindel
v. Leedom, 504 A.2d 353 (Pa. Super. 1986).
A. Effective Date of Support Order
Defendant first argues that we erred in making the effective date of
our Order the date Defendant filed for modification, rather than applying the
Order retroactively to May 2015 when Plaintiff began receiving payments
from Defendant's pension. See Concise Statement f 4(A).
"A party seeking to modify a support order has the burden of proving a
modification is warranted and that he/she promptly filed a modification
petition." Krebs v. Krebs, 944 A.2d 768, 774 (Pa. Super. 2008)
(citing Maddas v. Dehaas, 816 A.2d 234, 239 (Pa. Super.2003), appeal
denied, 827 A.2d 1202 (Pa. 2003)). Further, "[a]n order modifying a prior
support order is ordinarily retroactive to the date of filing of a petition for
modification." Krebs, 944 A.2d at 774 (citing Albert v. Albert, 707 A.2d 234,
236 (Pa. Super.1998)); 23 Pa.C.S.A. § 4352(e).6 Where a party
6
Section 4352(e) of Title 23 provides:
Retroactive modification of arrears.v-No court shall modify
or remit any support obligation, on or after the date it is
due, except with respect to any period during which there
is pending a petition for modification. If a petition for
modification was filed, modification may be applied to the
period beginning on the date that notice of such petition
FOOTNOTE CONTINUED ON THE NEXT PAGE
13
misrepresents his or her income, however, "the court may order a
modification of arrearages retroactive to the date a party
first misrepresented income." Id. at 774. To obtain additional retroactive
arrearages, the party must have promptly filed a modification petition upon
discovery of the misrepresentation. See id. "There is no bright-line rule for
determining if a petition for modification was promptly filed. We look to the
facts of each case and ask whether the delay was reasonable." Id. at 775,
(citing Maue v. Gilbert, 839 A.2d 430, 433 (Pa. Super.2003)).
Defendant filed his Petition for Modification on September 12, 2016.
See Petition for Modification, Ferraro v. Ferraro, DR-0036710 (C.P.
Northampton Co. Sep. 12, 2016). He sought, however, to have the support
order modified retroactively with an effective date of May 2015. Id. We did
7
not grant his request.
FOOTNOTE CONTINUED FROM THE PREVIOUS PAGE
was given, either directly or through the appropriate
agent, to the obligee or, where the obligee was the
petitioner, to the obligor. However, modification may be
applied to an earlier period if the petitioner was precluded
from filing a petition for modification by reason of a
significant physical or mental disability, misrepresentation
of another party or other compelling reason and if the
petitioner, when no longer precluded, promptly filed a
petition. In the case of an emancipated child, arrears
shall not accrue from and after the date of the
emancipation of the child for whose support the payment
is made.
23 Pa.C.S.A. § 4352{e).
7 Insofar as Defendant disputes Plaintiff's entitlement to a portion of his
pension, the parties' prior litigation and Defendant's abandoned appeal bar redress
of this issue.
FOOTNOTE CONTINUED ON THE NEXT PAGE
14
Defendant had direct knowledge of the pension payments made to
Plaintiff since May 2015. See Order of Court dated Apr. 12, 2015.
Defendant could have petitioned to modify his support obligation at any
point after May 2015. Defendant, however, did not seek to modify his
support obligation until September 12, 2016, seventeen months later. See
generally Petition for Modification. Therefore, Defendant's petition was not
"promptly filed." 23 Pa.C.S.A. § 4352(e); see also Krebs, 944 A2.d at 774.
Assuming, arguendo, that Defendant's petition could be considered
"promptly filed," there is no other "compelling reason" to apply the order
retroactively to May 2015. 23 Pa.C.S.A. § 4352(e). The record does not
indicate Plaintiff misrepresented her income, and Defendant did not proffer
any other reason supporting the requested retroactivity.
FOOTNOTE CONTINUED FROM THE PREVIOUS PAGE
"[R]es judicata provides that where a final judgment on the merits exists, a
future lawsuit on the· same cause of action is precluded." J.S. v. Bethlehem Area
School District, 794 A.2d 936, 939 (Pa. Cmwlth. 2002). "[R]es judicata requires
the coalescence of four factors: (1) identity of the thing sued upon or for; (2)
identity of the causes of action; (3) identity of the persons or parties to the action;
and ( 4) identity of the quality or capacity of the parties suing or being sued." Id.
"Generally, causes of action are identical when the subject matter and the ultimate
issues are the same in both the old and new proceedings." Id.
In April 2015, Judge Zito determined that Plaintiff was entitled to 50% of the
proceeds from Defendant's pension as well as an additional $500.00 per month
until August 2017 to compensate Plaintiff for the months in which she did not
receive her share of the pension payout due to Defendant's actions and/or
inactions. See Order of Court, . t C-48-CV-2007-8484 (C.P.
Northampton Co. Apr. 12, 2015). The Superior C_ourt dismissed Defendant's appeal
in January 2016 for failure to file a brief. See - , 1471 EDA 2015
(Pa. Super. 2015). Any dispute as to Plaintiff's entitlement to Defendant's pension
is barred by the doctrine of res judicata, as there is an identity of parties and
claims.
15
The record is devoid of any evidence that would require this court to
make the effective date of our support order any date other than the date of
filing of the Petition for Modification. We respectfully submit that
Defendant's first issue on appeal is without merit.
B. Defendant's Income
Defendant argues that we erred in assessing Defendant three separate
incomes any one of which, he argues, constitutes a full-time job. Defendant
contends this violates his constitutional guarantee of equal protection under
the law. See Concise Statement ,i 4(B).
By statute, income "[i]ncludes compensation for services, including,
but not limited to, wages, salaries ... ; all forms of retirement; pensions ..
. ; [and] workers' compensation." 23 Pa.C.S.A. § 4302. "When determining
income available for child support, the court must consider all forms of
income." MacKinley v. Messerschmidt, 814 A.2d 680, 681 (Pa. Super. 2002)
(citing Blaisure v. Blaisure, 577 A.2d 640, 642 (Pa. Super. 1990)).
"Generally, the amount of support to be awarded is based upon the
parties' monthly net income." Pa.R.C. P. 1910.16-2. Rule 1910.16-2(a)
defines "Monthly Gross Income" as follows:
(a) Monthly Gross Income. Monthly gross income is
ordinarily based upon at least a six-month
average of all of a party's income. The term
"income" is defined by the support law, 23
Pa.C.S.A. § 4302, and includes income from any
source. The statute lists many types of income
including, but not limited to:
16
( 1) wages, salaries, bonuses, fees and
commissions;
(2) net income from business or dealings in
property;
(3) interest, rents, royalties, and dividends;
( 4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust;
(6) Social Security disability benefits, Social
Security retirement benefits, temporary and
permanent disability benefits, workers'
compensation and unemployment
compensation;
(7) alimony if, in the discretion of the trier of
fact, inclusion of part or all of it is
appropriate; and
(8) other entitlements to money or lump sum
awards, without regard to source, including
lottery winnings, income tax refunds,
insurance compensation or settlements;
awards and verdicts; and any form of
payment due to and collectible by an
individual regardless of source.
Pa.R.C. P. 1910.16-2(a). The "Official Note" to Rule 1910-16.2(a) states:
[t]he trial court has discretion to determine the most
appropriate method for imputing lump-sum awards
as income for purposes of establishing or modifying
the party's support obligation. These awards may be
annualized or they may be averaged over a shorter
or longer period of time depending on the
circumstances of the case. They may also be
escrowed in an amount sufficient to secure the
support obligation during that period of time.
Pa.R.C.P. 1910-16.2(a), Official Note.
Defendant has three sources of monthly income, all of which were
properly utilized in calculating Defendant's child support obligation. See 23
Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-2(a). At the October 26, 2016
conference on Defendant's petition for modification, Defendant reported that
17
he had been hired full-time by Amazon. See Conference Notes Oct. 26.
Defendant subsequently provided a wage certification from Amazon. See
Follow up Conference Notes, DR-0036710 (C.P.
Northampton Co. Nov. 10, 2016). Defendant's Amazon income constitutes
"income" within the meaning of Section 4302 and Rule 1910. 16-2(a)( 1).
See 23 Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-2(a)(1).
The amount of income assessed to Defendant from both his pension
and his Worker's Compensation compromise were previously litigated. See
1450 EDA 2015 (Pa. Super. 2015) (dismissing
Defendant's appeal related to Worker's Compensation income for failure to
file brief); , 1471 EDA 2015 (Pa. Super. 2015) (dismissing
Defendant's appeal regarding his pension for failure to file brief). These
funds are "income" within the meaning of Section 4302 and Rule 1910.16-
2(a)( 4) and (6), respectively. See 23 Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-
2(a)(4), (6).
There is no basis for Defendant's assertion that we violated his equal
protection rights by properly applying Section 4302 and Rule 1910.16-2(a)
in calculating Defendant's monthly gross income. Therefore, we respectfully
suggest that Defendant's second issue on appeal is without merit and should
be dismissed.
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c. Bifurcation
Finally, Defendant argues that we erred in not 'bifurcating' the
November 16, 2016 Order to reflect the fact that he did not begin his
position at Amazon until October 21, 2016.8 See Concise Statement f 4(C).
Defendant argues that the Order should have reflected a reduced income
between September 12, 2016 and October 21, 2016. Only thereafter,
Defendant contends, should the court have attributed additional income to
him from his employment at Amazon. See id. The November 16, 2016
Order was effective retroactively to September 12, 2016, the filing date of
Defendant's petition for modification. See Order of Court dated Nov. 16,
2016; Order of Court dated Feb. 14, 2017.
Following a hearing on Defendant's petition, Conference Officer
Greaves determined there was no basis for Defendant's requested
modification. See Follow Up Conference Notes Nov. 10. Rather, there was a
basis to increase Defendant's support obligation. See id. Ultimately,
Greaves did not recommend an increase in Defendant's support obligation
because she determined that such an adjustment would create an undue
hardship for the Defendant. See id. Given this finding, bifurcation was not
warranted. Thus, we respectfully suggest that Defendant's third issue on
appeal is without merit.
8
Defendant initially claimed that he began working for Amazon on October 14,
2016. See Conference Notes Oct. 26. Defendant eventually provided a wage
certification, which showed that he actually started working for Amazon on October
21, 2016. See Follow Up Conference Notes Nov. 10, 2016.
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CONCLUSION
Based on foregoing, we respectfully suggest that Defendant's appeal is
without merit and should be dismissed.
BY THE COURT
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