J.D. v. D.G.M.

J-S03028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.G.M.
Appellee No. 1150 WDA 2016
Appeal from the Order Dated July 6, 2016
In the Court of Common Pleas of Erie County
Domestic Relations at No(s): NS200900847 / PASCES 543100845
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED MAY 24, 2017
Appellant, J.D. (“Mother”), appeals from the order dated July 6, 2016,
awarding support of her child, L.F.D. (“the Child”), born in 1999. 1 We affirm
in part, vacate in part, and remand.
In 1999, the day after the Child’s birth, a support complaint was filed
in Montgomery County by Mother against D.G.M. (“Father”). On March 23,
2007, the Montgomery County court ordered Father to pay $421.00 per
month in child support.
On April 30, 2009, the action was transferred to Erie County. At the
time of the transfer, Father was $10,432.02 in arrears. On May 28, 2009,
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*
Retired Senior Judge assigned to the Superior Court.
1
The Child was seventeen years old at the time the support order was
entered and the appeal was filed.
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the domestic relations court of Erie County ordered Father to pay $79.00 per
month towards this arrearage.
In 2014, Father filed a petition to modify child support. By that time,
Father had become “permanently disabled and [could not] work.” Domestic
Relations Ct. Op., 9/9/16, at 2.2 Father’s “net worker’s compensation lump
sum of $90,647.82 was intended to take the place of his entire future
earnings, as he is unable to work due to his disability.” Id. (footnote
omitted).
Following a hearing on June 28, 2016, the domestic relations court
found that Mother’s monthly net income is $2,384.19, that Father’s monthly
net income is $1,740, and that Father owes $7,659.70 in arrears. The court
calculated Father’s income by amortizing the benefits Father receives from
workers’ compensation and Social Security benefits over 328 months. Based
on this calculation, the domestic relations court ordered Father to pay $260
per month for current support and $40 per month for arrearage, totaling
$300 per month.
On August 9, 2016, Mother filed a notice of appeal of this order. She
now raises three issues on appeal:
I. Did the learned trial judge err in amortizing [Father’s]
worker’s compensation compromise and release and social
security benefits of $90,647.82 over 328 months rather than
over the . . . Child’s remaining minority?
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2
Father did not file a brief with this Court.
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II. Did the learned trial judge err in fashioning a child support
order of only $260.00 per month until the child reaches her
majority or graduation of high school whichever is later as [the
judge] failed to properly calculate the [Father]’s income for the
Child’s remaining minority?
III. Did the learned trial judge err in failing to order a lump
sum payment of arrears?
Mother’s Brief at 3.
Our standard of review is clear:
In reviewing a child support order, our standard of review
is narrow: we will not interfere with the trial court’s order
absent a clear abuse of discretion, shown by clear and
convincing evidence. “An abuse of discretion is more than
an error of judgment. It must be a misapplication of the
law or an unreasonable exercise of judgment.”
Darby v. Darby, 686 A.2d 1346, 1348 (Pa. Super. 1996) (quoting
Frankenfield v. Feeser, 672 A.2d 1347, 1349 (Pa. Super. 1996) (citations
omitted)), appeal denied, 698 A.2d 594 (Pa. 1997).
In its opinion dated September 9, 2016, in response to Mother’s first
two issues, the domestic relations court stated:
Upon review of the record, the [c]ourt concedes the amortization
of the lump sum of $90,647.82 over 32[8] months to be in error.
The [c]ourt intended for the $90,647.82 to be amortized over
[Father]’s estimated working life, 181 months. . . . Thus,
[Father]’s monthly support obligation should be calculated as
$302.17 plus $40 for arrears, for a total of $342.17 per month.
Domestic Relations Ct. Op., 9/9/16, at 1-2 (footnote omitted) (citing N.T.,
7/6/16, at 7-8). We agree, vacate the support order in part, and remand in
order for the domestic relations court to correct its acknowledged error.
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Mother’s final issue is that the domestic relations court “erred in failing
to order a lump sum payment of arrears.” Mother’ Brief at 13. Mother relies
on 23 Pa.C.S. § 4308.1(a), (f):
(a) General rule.—Overdue support shall be a lien by operation
of law against the net proceeds of any monetary award, as
defined in subsection (i), owed to an obligor, and distribution of
any such award shall be stayed in an amount equal to the child
support lien provided for under this section pending payment of
the lien. Except as provided in subsection (c) or (f), nothing in
this section shall provide a basis for a paying agent or an insurer
to delay payment of a settlement, verdict or judgment.
* * *
(f) Workers’ compensation awards.—With respect to any
monetary award arising under the act of June 2, 1915 (P.L. 736,
No. 338), known as the Workers’ Compensation Act, or the act
of June 21, 1939 (P.L. 566, No. 284), known as The
Pennsylvania Occupational Disease Act, no order providing for a
payment shall be entered by the workers’ compensation judge
unless the prevailing party or beneficiary, who is a claimant
under either or both of the acts, shall provide the judge with a
statement made subject to 18 Pa.C.S. § 4904 that includes the
full name, mailing address, date of birth and Social Security
number for the prevailing party or beneficiary who is a claimant
under either or both acts. The prevailing party or beneficiary,
who is a claimant under either or both of the acts shall also
provide the judge with either written documentation of arrears
from the Pennsylvania child support enforcement system website
or, if no arrears exist, written documentation from the website
indicating no arrears. The judge shall order payment of the lien
for overdue support to the department’s State disbursement unit
from the net proceeds due the prevailing party or beneficiary
who is a claimant under either or both acts.
23 Pa.C.S. § 4308.1(a), (f). Mother opines that there is no basis to allow
Father to “drag out” payment of arrears when he has sufficient funds to pay
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a lump sum. Mother’s Brief at 14. In her view, any payment of arrears
should favor the Child, and a lump sum payment was required. Id.
The domestic relations court stated that 23 Pa.C.S. § 4308.1 “does not
require the payment of arrears to be made in a lump sum.” Domestic
Relations Ct. Op., 9/9/16, at 3. We find nothing in the language of Section
4308.1 requiring a lump sum payment of child support arrears and have
found no case law obligating an award of a lump sum payment instead of
installment payments. See generally 1 Pa.C.S. § 1921(b) (“When the
words of a statute are clear and free from all ambiguity, the letter of it is not
to be disregarded under the pretext of pursuing its spirit”). Mother likewise
has not cited to any case law in support of her argument. Thus, we
conclude that the domestic relations court did not abuse its discretion in
ordering Father’s arrearage to be paid in installments. See Darby, 686 A.2d
at 1348.
The portion of the support order amortizing payment over 328
months, instead of the intended 181 months, is vacated. Otherwise, the
order is affirmed.
Order affirmed in part and vacated in part. Case remanded.
Jurisdiction relinquished.
Judge Olson joins the memorandum.
Judge Strassburger files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
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