Jenkins, S. v. Jenkins, R.

J-S23013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHERRY L. JENKINS, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ROBERT L. JENKINS,
Appellant No. 1215 WDA 2018
Appeal from the Order Entered August 16, 2018
In the Court of Common Pleas of Bedford County
Civil Division at No(s): 106-S-2013/211113964
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 12, 2019
Robert L. Jenkins (Husband) appeals from the order entered August 16,
2018, that denied Husband’s objections to the reinstatement of spousal
support and arrearages due Sherry L. Jenkins (Wife), but terminated the
spousal support effective October 3, 2017, the date upon which the parties’
final divorce decree was entered.1 After review, we affirm.
The trial court supplied the following history of this case in its Pa.R.A.P.
1925(a) opinion, stating:
On July 11, 2013, a spousal support order was entered requiring
[Husband] to pay [Wife] $500.00 per month spousal support. This
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Wife has not filed a brief in response to Husband’s appeal.
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order was terminated at [Wife’s] request on September 18, 2014,
but was reinstated by agreement on November 20, 2014.
[Husband] was incarcerated on March 7, 2016[,] following [his]
conviction for driving under the influence. [Husband] was
admitted to a State Intermediate Punishment program (SIP). The
program was a twenty-four (24) month program, wherein
[Husband] would spend at least seven (7) months in state prison,
seven (7) months in a halfway house, and the remaining portion
on supervision. In December, 2016[,] [Husband] was transferred
to an inpatient rehabilitation facility for two months and then on
February 21, 2017[,] to the Community Corrections Center from
which he was released on May 3, 2018. Upon learning of his
incarceration[,] the Bedford County Domestic Relations Office, on
March 28, 2016, sent a notice to the parties advising them the
Domestic Relations Office would suspend the [spousal support]
order without prejudice and remit arrearages without prejudice no
less than 60 days after the date of the notice unless a conference
was requested. No conference was requested and on June 1,
2016[,] the [o]rder was suspended without prejudice and all
arrearages, if any, were remitted without prejudice.
On May 29, 2018, after [Husband’s] release, the parties were sent
the following notice:
“The Bedford County Domestic Relations Section
intends to reinstate your Support Order no less than
30 days after the date of this notice. Unless a
conference/hearing is requested by you, a decision
will be made on June 26, 2018. The arrearages that
were suspended without prejudice upon your
incarceration as well as any arrearages that would
have accrued during your incarceration will be
reinstated 30 days from the date of this notice.”
[Husband] objected to reinstatement and the above referenced
hearing was scheduled.
At the hearing, [Husband’s] counsel conceded that while at the
halfway house [Husband] was available to work.
THE COURT: What were the conditions at the halfway
house? Did he have to stay in the house? Could he
go out? Could he work?
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MR. KELLEHER: He could. He ultimately gained
employment right around the time when the divorce
decree was entered in August, September of - - well,
the divorce decree was entered in October, but he was
able to gain employment in August, September of
2017. (Transcript hearing, August 16, 2018, page 9,
lines 5-13.)
As noted, the parties’ final decree in divorce was entered on
October 3, 2017[,] ending [Wife’s] claim for spousal support. At
the time of [Husband’s] incarceration in March of 2016, there were
no arrears in the case. Finally, [Husband] requested an additional
hearing for the [c]ourt to consider other factors such as the length
of the marriage, and other issues. The [c]ourt declined the
request for [an] additional hearing, but allowed [Husband] to
supplement the record with documents and to testify if he chose
to do so. At the conclusion of the hearing, the [c]ourt gave its[]
reasons and reinstated the order including any arrearages that
accrued during incarceration, but terminating the order effective
October 3, 2017[,] ordering [Husband] to pay $250.00 per month
on the $9,990.07 arrearage.
Trial Court Opinion (TCO), 9/24/18, at 1-4 (some citations to the record
omitted).
On August 28, 2018, Husband filed this appeal and raised four issues in
his concise statement of matters complained of on appeal. However, in his
brief to this Court, Husband sets forth the following single issue, which
encompasses only the first two issues in his concise statement:
Whether the trial court erred and/or abused its discretion in failing
to properly apply Pennsylvania Rule of Civil Procedure 1910.19(f)
to the instant case and by failing to apply Superior Court
precedent, namely, Plunkard v. McConnell, 962 A.2d 1227 [(Pa.
Super. 2008)], when it reinstated arrearages that accrued during
[Husband’s] period of incarceration, inpatient rehabilitation, and
time spent at a halfway house as [Husband] was unable to pay,
had no known income and there was no reasonable prospect that
he would be able to pay in the foreseeable future?
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Husband’s brief at 4.
To address this issue, we are guided by the following:
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.
Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008) (quoting Menser v.
Ruch, 928 A.2d 294, 297 (Pa. Super. 2007)). We also note that although
many of the opinions cited or quoted by this Court below and those cases
relied upon by the trial court and Husband deal with the payment of child
support, the reasoning expressed in those decisions relates to spousal support
as well.
Husband’s issue centers on Pa.R.C.P. 1910.19(f) and this Court’s
Plunkard decision, wherein he argues that “the trial court erred when it
reinstated arrearages that accrued during [Husband’s] period of incarceration,
inpatient rehabilitation, and time spent at a halfway house as [Husband] was
unable to pay, had no known income and there was no reasonable prospect
that he would be able to pay in the foreseeable future.” Husband’s brief at
11-12.
We begin by noting that:
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Once a support order is in effect, “[a] petition for modification …
may be filed at any time and shall be granted if the requesting
party demonstrates a substantial change in circumstances.” 23
Pa.C.S. § 4352(a); see also Pa.R.C.P. No. 1910.19 (stating
standard for modification). Accordingly, it is the petitioning
parent’s burden to “specifically aver the material and substantial
change in circumstances upon which the petition is based.”
Pa.R.C.P. No. 1910.19(a); see also Colonna v. Colonna, 788
A.2d 430, 438 (Pa. Super. 2001) (en banc) (stating that burden
is on moving party), appeal granted, 569 Pa. 678, 800 A.2d 930(2002). A finding of either a “material and substantial change in
circumstances” or no such change is reviewed on appeal for an
abuse of discretion. Bowser v. Blom, 569 Pa. 609, 807 A.2d
830, 834 (2002); [Larson v. Diveglia, 549 Pa. 118, 700 A.2d
931, 932 (1997)]. “An abuse of discretion occurs where there is
an error of judgment, a manifestly unreasonable decision, or a
misapplication of law.” Larson, 700 A.2d at 932; see also
Bowser, 807 A.2d at 834 (defining “abuse of discretion”
standard).
Nash v. Herbster, 932 A.2d 183, 186 (Pa. Super. 2007) (quoting Yerkes v.
Yerkes, 824 A.2d 1169, 1171 (Pa. 2003)).
We next set forth the language contained in Pa.R.C.P. 1910.19(f), which
became effective on May 19, 2006.
Rule 1910.19. Support. Modification. Termination.
Guidelines as Substantial Change in Circumstances.
***
(f) Upon notice to the obligee, with a copy to the obligor,
explaining the basis for the proposed modification or termination,
the court may modify or terminate a charging order for support
and remit any arrears, all without prejudice, when it appears to
the court that:
(1) the order is no longer able to be enforced under state
law; or
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(2) the obligor is unable to pay, has no known income or
assets and there is no reasonable prospect that the obligor will be
able to pay in the foreseeable future.
The notice shall advise the obligee to contact the domestic
relations section within 60 days of the date of the mailing of the
notice if the obligee wishes to contest the proposed action. If the
obligee objects, the domestic relations section shall schedule a
conference to provide the obligee the opportunity to contest the
proposed modification or termination. If the obligee does not
respond to the notice or object to the proposed action, the court
shall have the authority to modify or terminate the order and remit
any arrears, without prejudice.
Rule 1910.19(f) (emphasis added).
Additionally, we include the 2006 explanatory comment to Rule
1910.19(f), which provides:
New subdivision (f) addresses an increasing multiplicity of
circumstances in which the continued existence of a court-ordered
obligation of support is inconsistent with the rules or law. An
obligor with no known assets whose sole source of income is
Supplemental Security Income or cash assistance cannot be
ordered to pay support under Rule 1910.16-2. Likewise, an
obligor with no verifiable income or assets whose
institutionalization, incarceration, or long-term disability
precludes the payment of support renders the support order
unenforceable and uncollectible, diminishing the perception of the
court as a source of redress and relief. Often, the obligor is unable
or unaware of the need to file for a modification or termination, or
the parties abandon the action. In those circumstances, the
courts are charged with managing dockets with no viable
outcomes. Both the rules and the federal guidelines for child
support under Title IV-D of the Social Security Act provide for
circumstances under which a child support case may be closed.
By way of further explanation, we turn to this Court’s discussion in Nash
about the Yerkes opinion, which states:
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In Yerkes, our Supreme Court stated that it had “never
directly addressed whether incarceration, standing alone, is a
‘material and substantial change in circumstances’ that provides
sufficient grounds for modification or termination of a child
support order.” [Yerkes, 824 A.2d at 1171]. Thus, the high court
discussed the advantages and disadvantages of three distinct
approaches other jurisdictions have taken “to assessing the effect
of incarceration on support obligations.” Id. at 1172. After doing
so, our Supreme Court stated: “In sum, we conclude that the ‘no
justification’ rule best serves the interests of the child and is in
harmony with fairness principles and the child support laws of
Pennsylvania. Under the ‘no justification’ rule, it is clear that
incarceration, standing alone, is not a ‘material and substantial
change in circumstances’ providing sufficient grounds for
modification or termination of a child support order.” Id. at 1177
(footnotes omitted). In reaching this conclusion, the high court
stated that, to the extent that this Court’s decision in Leasure v.
Leasure, … 549 A.2d 225 (Pa. Super. 1988), in which we held
that a child support obligation should be suspended where the
obligor is incarcerated, conflicted with the “no justification”
approached [sic] it has adopted, “we disapprove of it.” Yerkes,
824 A.2d at 1177 n.2.
In his concurring opinion, Justice Saylor opined that,
although he saw merit to the majority’s approach, he would
endorse this Court’s rationale in Leasure, supra, in which we
afforded the trial court substantial discretion to assess the fact of
incarceration as one factor in determining whether to grant a
petition for modification or termination of child support. Justice
Saylor found this approach to be the better approach, “particularly
in the absence of a specific legislative directive otherwise.”
Yerkes, 824 A.2d at 1177 (Saylor, J., concurring). Nevertheless,
Justice Saylor found that, given the particular circumstances of
the case, the trial court did not abuse its discretion when it denied
the appellant’s petition for termination of his child support
obligation. In a separate concurring opinion, Justice Eakin opined
that, although he completely agreed with the majority’s statement
that “incarceration, standing alone, is not a ‘material and
substantial change in circumstances’ providing sufficient grounds
for modification or termination of a child support order[,]” he
nevertheless could not agree that incarceration is not a substantial
change of circumstance. According to Justice Eakin, “[w]hile
incarceration should be acknowledged to be a significant change
in circumstance, it may not be grounds for modification or
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termination of a child support order, as a matter of public policy.”
Id. (footnote omitted).
Nash, 932 A.2d at 186-87.
The Nash Court then went on to explain that the appellant’s
modification petition employed the language of Rule 1910.19(f)(2), just as
Husband’s petition in the instant case did, i.e., that “the obligor is unable to
pay, has no known income or assets and there is no reasonable prospect that
the obligor will be able to pay in the foreseeable future.” Then, noting that no
case law existed that discussed the application of the new rule with the Yerkes
decision, the Nash opinion cited the Commonwealth Court’s decision in Fisher
v. Commonwealth, Dept. of Corrections, 926 A.2d 992, 996 (Pa. Cmwlth.
2007). In a dissenting opinion in Fisher, Judge Simpson “agreed with the
Department of Correction[s’] assertion that an inmate may ‘seek modification
of his … support orders while in prison, as now allowed by Pa.R.C.P. No.
1910.19(f).’” Nash, 932 A.2d at 188 (quoting Fisher, 926 A.2d at 996). The
Nash Court agreed and, therefore, vacated the order that denied the
appellant’s petition seeking modification of his support order and directed the
trial court “to follow the dictates of Rule 1910.19(f).” Id.The Plunkard case, relied upon by Husband, followed the dictates of
Nash, indicating that
the law of this Commonwealth now affords an incarcerated parent
the ability to petition to modify or terminate their support
obligation where they are able to prove that the order is no longer
able to be enforced under state law or that the incarcerated
obligor parent is without the ability to pay their child support
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obligation and there is no reasonable prospect that they will be
able [to] do so for the foreseeable future.
Plunkard, 962 A.2d at 1230-31 (citing Nash, 932 A.2d at 188). This is
exactly the process that the trial court followed here. After comparing the
length of incarceration, in Plunkard – a 6 to 10 year sentence, and in Yerkes
– a 10 year sentence, to the situation here – a one year sentence in prison
and inpatient treatment, plus one year in a halfway house at which time
Husband could work, the court concluded that these facts did not comport
with an inability to pay support in the foreseeable future. The trial court
concluded that:
The Pennsylvania case law and the Rule of Civil Procedure require
the trial court to carefully weigh the claims of an incarcerated
individual. In this case, [Husband] was not incarcerated when he
resisted reinstatement; he had served approximately a year in
prison, and inpatient treatment; and failed to make use of the
opportunity given [to] him at the hearing to establish valid
reasons why the order should not be reinstated at its previous
level. Although it is difficult to see how he had less earning
potential after approximately one year in prison[, t]he reinstated
order does include arrearages for the period he served in the
halfway house, because he was available to work. It also included
arrearages for the one[-]year period of his incarceration, because
the phrase, “not within the foreseeable future” would not include
a period as short as one year.
TCO at 14-15.
Based upon our review of the record, and the case law cited above, we
conclude that the trial court did not abuse its discretion in following the
dictates of Rule 1910.19(f) and in concluding that the reinstatement of spousal
support was proper under the facts of this case. We, therefore, affirm the
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court’s order denying Husband’s objection to the reinstatement of the spousal
support order and the reinstatement of all arrearages.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2019
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