Brickus v. Dent

OPINION BY

GANTMAN, J.:

Appellant, Latoya L. Brickus (“Mother”), appeals from the order entered in the Chester County Court of Common Pleas, which declined to implement the hearing officer’s report and recommendation to increase the support obligation of Appellee, Raymond T. Dent (“Father”), in accordance with amended state support guidelines. For the following reasons, we vacate and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. Mother and Father had a child born July 1, 1999.¹ Mother filed a complaint for child support on August 9, 1999. On August 30, 2000, the court issued an order setting Father’s support obligation at $345.00 per month plus 63% of unreimbursed medical expenses, and a portion of child care expenses based on Father’s and Mother’s respective net incomes. On April 5, 2001, Mother filed a petition to increase Father’s child support obligation, alleging Father’s support obligation should have been higher under the existing support guidelines. By order dated May 10, 2001, and filed on May 16, 2001, the court issued a modified support order increasing Father’s child support obligation to $370.00 per month plus 60% of unreimbursed medical expenses, and a portion of child care expenses. On October 5, 2007, Father filed a petition to decrease his support obligation due to his impending retirement from the military. On December 7, 2007, Father withdrew his petition and both parties agreed to leave the 2001 modified support order in effect.

On August 25, 2008, Father filed the instant petition to decrease his support obligation based on changed circumstances, namely, a reduction in income due to job loss. Father alleged his only source of income was a military pension of $942.00 per month. Mother did not file a cross-petition for relief. On October 27, 2008, the parties executed an interim support agreement that temporarily reduced Father’s child support obligation to $200.00 per month, with $20.00 per month towards arrears, and 50% of unreimbursed medical expenses. Significantly, the parties intended the interim support order to remain in effect only until the court heard argument on Father’s petition and issued a final support order.

On January 27, 2009, a hearing officer heard Father’s petition to decrease child support. Thereafter, the hearing officer found Father’s evidence insufficient to prove he had tried to mitigate his job loss with diligent attempts to obtain new employment. As a result, the hearing officer used Father’s monthly military pension and his earning capacity to calculate his net monthly income in accordance with amended state support guidelines.² On February 2, 2009, the hearing officer filed a report and recommendation that Father pay child support in the amount of $511.00 per month, plus 47.36% of unreimbursed medical expenses.

On February 2, 2009, Father filed exceptions to the hearing officer’s report and recommendation, claiming the hearing officer should have considered only his military pension, and not his earning capacity, in the computation of his support obligation. Father also alleged he made tireless, albeit unsuccessful, efforts to find employment. On March 24, 2009, the trial court held a hearing on Father’s exceptions.

On May 11, 2009, the trial court granted Father’s exceptions in part and denied them in part. Specifically, the court found the hearing officer erred in increasing Father’s child support obligation, where Mother did not file a cross-petition for an increase in child support. The court, however, denied Father’s exceptions to the extent he asserted the hearing officer erred in refusing to decrease Father’s child support obligation, because Father did not present sufficient evidence to establish mitigation of his unemployment. As a result, the trial court reinstated the May 2001 modified support order retroactive to August 25, 2008, the date Father filed his petition to decrease, except for the period when the interim support agreement was in effect.

On June 3, 2009, Mother timely filed a notice of appeal. That same day, the court ordered Mother to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mother timely filed her Rule 1925(b) statement on June 22, 2009.

Mother raises the following issues for our review:

DID THE TRIAL COURT ERR BY OVERRULING THE REPORT AND RECOMMENDATION OF THE HEARING OFFICER WHO, BASED ON THE EVIDENCE PRESENTED, MODIFIED AND INCREASED [FATHER’S] CHILD SUPPORT ORDER, UPON HIS PETITION FOR MODIFICATION, IN ACCORDANCE WITH THE PENNSYLVANIA SUPPORT GUIDELINES?

DID THE TRIAL COURT ERR BY FAILING TO APPLY THE CHILD SUPPORT RULES PROMULGATED AT 23 PA.C.S.A. § 4322(a) AND (b), PA.R.C.P.1910.16-3, 1910.16-2(a) AND (d)(4), PA.R.C.P.1910.19(a) AND (c) AND FAILING TO CONSIDER THAT THE APPLICATION OF NEW AND REVISED SUPPORT GUIDELINES ENACTED SINCE THE ENTRY OF THE ORIGINAL SUPPORT ORDER [DATED] MAY 10, 2001, ALONG WITH EVIDENCE OF ADDITIONAL INCOME, AND CHANGES IN THE PARTIES’ INCOMES CONSTITUTED A SUBSTANTIAL AND MATERIAL CHANGE IN CIRCUMSTANCES WARRANTING A REVIEW OF THE EXISTING SUPPORT ORDER?

DID THE TRIAL COURT ERR BY DETERMINING THAT ONLY THE ISSUES RAISED IN [FATHER’S] PETITION FOR MODIFICATION WERE BEFORE THE HEARING OFFICER AND THAT AT A DE NOVO REVIEW THE HEARING OFFICER DOES NOT HAVE THE AUTHORITY TO MODIFY THE EXISTING SUPPORT ORDER IN ANY APPROPRIATE MANNER BASED UPON THE EVIDENCE PRESENTED PURSUANT TO PA.R.C.P.1910.11(i), PA.R.C.P. 1910.12 ET AL., AND PA.R.C.P. 1910.19(a) AND (c)?

DID THE TRIAL COURT ERR BY DETERMINING THAT THE HEARING OFFICER ONLY HAD THE AUTHORITY TO DENY [FATHER’S] PETITION FOR MODIFICATION, BECAUSE [MOTHER] DID NOT FILE A CROSS-PETITION, THUS ABROGATING AND NULLIFYING [MOTHER’S] RIGHT TO PROCEED WITH A HEARING AND RECEIVE A THOROUGH REVIEW OF THE EVIDENCE PRESENTED AND HAVE THE SUPPORT GUIDELINES APPLIED TO ESTABLISH AN APPROPRIATE SUPPORT ORDER PURSUANT TO PA.R.C.P.1910.16-2(d)(4), 1910.16-3, 1910.19(a) AND (c) AND 23 PA.C.S.A. § 4322(a) AND (b)?

DID THE TRIAL COURT ERR BY DETERMINING THAT [FATHER] WAS DENIED DUE PROCESS AND FAILED TO RECEIVE SUFFICIENT NOTICE THAT HIS SUPPORT OBLIGATION MAY BE MODIFIED BY THE HEARING OFFICER IN ANY APPROPRIATE MANNER BASED UPON THE EVIDENCE PRESENTED BEFORE THE COURT?

DID THE TRIAL COURT ERR BY FAILING TO ENTER A GUIDELINE SUPPORT ORDER RETROACTIVE TO THE FILING DATE OF [FATHER’S] PETITION FOR MODIFICATION AND ERRONEOUSLY UPHELD AN AGREEMENT BETWEEN THE PARTIES WHICH TEMPORARILY REDUCED [FATHER’S] SUPPORT OBLIGATION AND REMITTED HIS ARREARAGES WHICH WAS MANIFESTLY UNFAIR AND AGAINST THE BEST INTEREST OF THE CHILD[?]

DID THE TRIAL COURT ERR BY FRUSTRATING THE EFFORTS OF OBTAINING JUDICIAL ECONOMY AND EXPEDIENT DISPOSITION OF SUPPORT ACTIONS BY REQUIRING OPPOSING PARTIES TO EXPEND TIME AND MONEY TO FILE PROPHYLACTIC CROSS PETITIONS TO PRESERVE THEIR RIGHTS TO PRESENT EVIDENCE AND ADVOCATE THEIR POSITION CONTRA TO THE PARTY INITIATING THE SUPPORT MODIFICATION PROCEEDING?

(Mother’s Brief at 10-11).

Our standard of review over child support orders is:

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 support one’s child is absolute, and the purpose of child support is to promote the child’s best interests.

Silver v. Pinskey, 981 A.2d 284, 291 (Pa.Super.2009) (en bane) (quoting Mencar v. Ruch, 928 A.2d 294, 297 (Pa.Super.2007)).

For purposes of disposition, we combine Mother’s issues. Mother argues the hearing officer correctly questioned Father about relevant factors related to his earning capacity and his efforts to find full-time employment. Mother asserts the hearing officer properly decided Father had not made a meaningful effort to gain employment. Mother maintains the hearing officer then determined the parties’ respective incomes and necessary expenses, and applied the current state support guidelines to calculate the appropriate support award in this case. Mother concedes the hearing officer’s report and recommendation is advisory and not binding on the trial court. Mother claims, however, that the court failed to conduct an independent support analysis using the parties’ respective incomes in light of the current state support guidelines to determine the appropriate support award.

Mother also argues the court improperly limited the scope of the hearing officer’s decision to the specific relief requested in Father’s petition (namely, to decrease Father’s support obligation), where both parties received the following notice from the court: THE APPROPRIATE COURT OFFICER MAY ENTER AN ORDER AGAINST EITHER PARTY BASED UPON THE EVIDENCE PRESENTED WITHOUT REGARD TO WHICH PARTY INITIATED THE SUPPORT ACTION. Given this notice, Mother submits that once Father brought the issue of child support before the court, the court was free to grant the appropriate relief, which included an increase in Father’s support obligation, even in the absence of a cross-petition for an increase.

Additionally, Mother argues the parties stipulated Mother’s income had changed since the entry of the last support order. Mother insists her change in income was an independent material and substantial change to warrant modification of Father’s support obligation. Similarly, Mother declares the amended state support guidelines, standing alone, constituted a substantial and material change to warrant modification of Father’s support obligation.

Finally, Mother questions the court’s decision to exempt from retroactive application of its support order that time during which the parties’ interim support agreement was in place. The parties’ interim support agreement temporarily reduced Father’s support obligation. Mother insists she agreed to the temporary reduction based on Father’s promise to make a sincere effort to mitigate his job loss and seek appropriate employment. Father failed to make adequate attempts to gain suitable employment while the interim support agreement was in effect. Therefore, Father failed to keep his part of the bargain and abused the agreement to circumvent his existing support obligation. Mother submits the court erred when it refused to adjust Father’s child support obligation to the current state support guidelines, simply because Mother did not file a cross-petition for that relief, and when it reinstated the amended 2001 support order retroactive to August 25, 2008, but exempted the time the parties’ interim support agreement was in place. Mother concludes this Court must vacate and remand for an amended order pursuant to the current support guidelines and made retroactive to August 25, 2008, the date Father filed his petition to decrease child support. For the following reasons, we agree to vacate and remand.

Pennsylvania Rule of Civil Procedure 1910.19 sets forth the relevant guidelines to modify an existing support order as follows:

Rule 1910.19. Support. Modification. Termination. Guidelines as Substantial Change in Circumstances

(a) A petition for modification or termination of an existing support order shall specifically aver the material and substantial change in circumstances upon which the petition is based. A new guideline amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances. The existence of additional income, income sources or assets identified through automated methods or otherwise may also constitute a material and substantial change in circumstances.

(b) The procedure upon the petition shall be in accordance with Rule 1910.10 et seq.

(c) Pursuant to a petition for modification, the trier of fact may modify or terminate the existing support order in any appropriate manner based upon the evidence presented.

Pa.R.C.P. 1910.19(a)-(c) (emphasis added).

“Due process requires that a party who will be adversely affected by a court order must receive notice and a right to be heard in an appropriate setting.” McKinney v. Carolus, 430 Pa.Super. 450, 634 A.2d 1144, 1146 (1993). “Notice, in our adversarial process, ensures that each party is provided adequate opportunity to prepare and thereafter properly advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment.” Everett v. Parker, 889 A.2d 578, 580 (Pa.Super.2005).

Pennsylvania Rule of Civil Procedure 1910.27 describes the notice provisions to be attached to the complaint in initial support proceedings and the notice provisions to be attached to the petition for modification of support in modification proceedings as follows:

Rule 1910.27. Form of complaint. Order. Income and Expense Statement. Health Insurance Coverage Information Form. Form of Support Order. Form Petition for Modification.

* * *

(b) The order to be attached at the front of the complaint set forth in subdivision (a) shall be in substantially the following form:

THE APPROPRIATE COURT OFFICER MAY ENTER AN ORDER AGAINST EITHER PARTY BASED UPON THE EVIDENCE PRESENTED WITHOUT REGARD TO WHICH PARTY INITIATED THE SUPPORT ACTION.

* * *

(g) The order to be attached at the front of the petition for modification set forth in subdivision (f) shall be in substantially the following form:

THE APPROPRIATE COURT OFFICER MAY MODIFY OR TERMINATE THE EXISTING ORDER IN ANY MANNER BASED UPON THE EVIDENCE PRESENTED.

Pa.R.C.P. 1910.27(b), (g) (emphasis added).

“An order of support shall be effective from the date of the filing of the complaint or petition for modification unless the order specifies otherwise.” Pa. R.C.P. 1910.17(a). See generally Krebs v. Krebs, 944 A.2d 768, 774 (Pa.Super.2008). “Consequently, modification of a support order is to be retroactive to the date when modification initially was sought unless the court sets forth reasons for failing to do so on the record.” Kelleher v. Bush, 882 A.2d 488, 485 (Pa.Super.2003) (quoting Holcomb v. Holcomb, 448 Pa.Super. 154, 670 A.2d 1155, 1158 (1996) (emphasis omitted)). “In fact, failure to make an award retroactive is reversible error unless specific and appropriate justification for such a ruling is shown.” Christianson v. Ely, 575 Pa. 647, 658, 838 A.2d 630, 636 (2003).

Section 4352 of the Domestic Relations Code governs the retroactive modification of arrears as follows:

§ 4352. Continuing jurisdiction over support orders

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(e) Retroactive modification of arrears. 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 was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor....

23 Pa.C.S.A. § 4352(e) (emphasis added).

Instantly, the court issued a modified support order in 2001 in accordance with existing state support guidelines. In October 2007, Father filed a petition to decrease his support obligation due to his impending retirement from the military. Father later withdrew this petition, however, and the 2001 modified support order remained in effect.

On August 25, 2008, Father filed the present petition to decrease his support obligation due to job loss. Following a hearing on January 27, 2009, the hearing officer found Father had offered insufficient evidence that he had tried to mitigate his unemployment. As a result, the hearing officer issued a report and recommendation that denied Father’s petition for a decrease in child support. Using Father’s military pension and his established earning capacity, the hearing officer recalculated Father’s child support obligation under the amended state support guidelines, which effectively increased the amount Father had to pay in child support. On February 2, 2009, Father filed exceptions to the hearing officer’s report and recommendation.

The court granted Father’s exceptions in part largely because the court found Mother had not filed a cross-petition for an increase in child support. The court reasoned:

A close review of [the notice provisions under Rule 1910.27(b) and (g)] clearly indicates that the court officer, whether it is a hearing officer or a judge, has an expanded authority to issue a decision in favor of the party who did not initiate the action only in an original support hearing, not in a support modification hearing. As form order notifications described within a single support rule, these notice provisions must be read in pari materia in accordance with Pa. R.C.P. 131. Rules in pari materia must be construed together so that effect can be given to both. Lohmiller v. Weidenbaugh, 503 Pa. 329, 333, 469 A.2d 578, 580 (1988). Giving full effect to both notifications required that the language omitted from the petition for modification order not be added by judicial interpretation. That which is omitted, but which is contained in the original support order language, authorizes the court officer to issue an order “against either party” ... “without regard to which party initiated the support action.” The Supreme Court certainly could have provided similar language within the modification petition order, as well as Rule 1910.19(c) itself. That it declined to do so indicates an intention that this court cannot ignore.

(Trial Court Order, dated May 11, 2009, at 3-4) (emphasis in original). We respectfully disagree with the court’s analysis because it does not lead inexorably to the court’s conclusion under the circumstances of this case.

Initially, we observe the court’s own order issued to both parties on October 27, 2008, and rescheduling the hearing on Father’s petition to modify child support for January 27, 2009, contained the following notice provision:

THE APPROPRIATE COURT OFFICER MAY ENTER AN ORDER AGAINST EITHER PARTY BASED UPON THE EVIDENCE PRESENTED WITHOUT REGARD TO WHICH PARTY INITIATED THE SUPPORT ACTION.

(Order to Reschedule a Hearing, filed 11/6/08, at 2) (emphasis added). Because the language in the particular notice sent to the parties indicated the hearing officer could make a decision against either party, regardless of which party initiated the action, Mother had no reason to conclude she had to file a cross-petition to obtain an increase in Father’s support obligation. See Pa.R.C.P. 1910.27; Everett, supra; McKinney, supra.

Moreover, nothing in Rule 1910.27 requires a party to file a cross-petition for modification of child support, where the rule expressly provides “THE APPROPRIATE COURT OFFICER MAY MODIFY OR TERMINATE THE EXISTING ORDER IN ANY MANNER BASED UPON THE EVIDENCE PRESENTED.” See Pa.R.C.P. 1910.27(g) (emphasis added). Therefore, the hearing officer had the authority to increase Father’s support obligation in accordance with the amended state support guidelines, even in the absence of a cross petition by Mother. See Pa.R.C.P. 1910.19(a).

Further, on October 27, 2008, the parties executed an interim support agreement (entered as an order of the court on 11/5/08) that temporarily reduced Father’s support obligation. At the de novo hearing on Father’s exceptions to the hearing officer’s report and recommendation, Mother argued for adoption of the hearing officer’s recommended child support calculation, made retroactive to August 25, 2008, the date Father filed his petition for child support modification. No dispute at the hearing arose on whether the court should exempt from retroactive application the time between the November 5, 2008 temporary order (incorporating the parties’ agreed-to temporary reduction of Father’s support obligation) until the January 27, 2009 hearing (the date the parties appeared before the master for the support modification hearing). See Trial Court Order, filed May 11, 2009, at 1 (defining “Hearing” date as January 27, 2009). Only after the court filed its final order did the issue of time exclusion arise. Mother challenged that part of the court’s order in her Rule 1925(b) statement³ and the court responded as follows:

The Record Supports Enforcement of the Parties’ Temporary Stipulation to Reduce Support

The specific language contained in the parties’ Temporary Stipulation is recorded in a signed writing dated October 27, 2008 and in the November 5, 2008 order of Judge Cody. Neither writing contains language that conditions the temporary reduction in support upon the qualitative level of effort by [Father] to seek new employment. Because of this, [Mother] cannot now be heard to deny the stipulation based on any non-record recitation of an alleged prior oral agreement. Even if parol evidence were permitted, none was offered and the court is limited to record evidence from the support hearing. Thus, the court properly applied the Temporary Stipulation.

(Trial Court Opinion, filed July 10, 2009, at 11). We respectfully disagree with the court’s rationale. Given the general rules applicable to retroactivity of support orders, we think the better resolution would be for the court to reconsider its decision on this issue as well upon remand. See Pa.R.C.P. 1910.17(a); 28 Pa.C.S.A. § 4352(e); Christianson, supra; Kelleher, supra. Accordingly, we vacate and remand for further proceedings consistent with this opinion.

Order vacated; case remanded with instructions. Jurisdiction is relinquished.

Judge BOWES files a Dissenting Opinion.

1 . The parties are not and have never been married.

2 . On September 27, 2005, the Pennsylvania legislature amended the Uniform Support Guidelines, effective January 27, 2006. See Pa.R.C.P. 1910.16-1.

3 . Mother had no reason to anticipate the court’s final decision would exempt from ret-roactivity the time the interim support order was in effect. Therefore, her Rule 1925(b) statement was the first opportunity she had to challenge that aspect of the court’s order.