Judges： Eakin, Schiller, Olszewski
Filed Date： 12/31/1998
Status： Precedential
Modified Date： 10/26/2024
Thomas Simmons (“husband”) appeals the September 17, 1997, order of Judge Cynthia A. Baldwin concerning husband’s alimony and child support obligations to Cynthia Simmons (“wife”) and Amanda and Andrew Simmons. For the reasons set forth below, we affirm the lower court’s decision.
Husband .and wife married on March 5, 1982; separated on June 1, 1992; and divorced on May 14, 1996. Their union produced two children — Amanda, born on October 31, 1982, and Andrew, born on February 6,1986. On October 27,1995, the trial court entered an order requiring husband to pay alimony payments of $990 per month to wife until February 1997 and $1,000 per month for child support, both retroactive to April 21, 1994. On September 6, 1996, wife filed a petition for discovery and modification of both the alimony and child support payments. Hearing Officer Bingman held hearings on the petition on January 18,1997, and issued recommendations on March 17, 1997. The lower court entered a final order sustaining wife’s exceptions, and sustaining in part and dismissing in part husband’s exceptions on September 17,1997.
Husband now appeals the order and presents two questions for this Court’s review:
1. Did the trial court abuse its discretion in finding that Appellant’s failure to report a change in his income was a violation of 23 Pa.C.S.A. Section 4353 which would necessarily result in increased alimony payments to Appel-lee?
2. Did the trial court abuse its discretion in awarding an increase in both child support and alimony retroactive to a period longer than the date of the filing of the petition for Modification?
Appellant’s brief at 3. We find that the lower court did not abuse its discretion in considering either issue, thus the order is affirmed.
Proper consideration of husband’s appeal requires that we address the questions and issues presented in light of the proper standard of review of alimony and child support decisions. In reviewing orders granting, denying or modifying support, this Court is limited to considering whether, based on clear and convincing evidence, the trial court abused its discretion. See Zullo v. Zullo, 531 Pa. 377, 613 A.2d 544 (Pa.1992); Crawford v. Crawford, 429 Pa.Super. 540, 633 A.2d 155 (Pa.Super.1993); McAuliffe v. McAuliffe, 418 Pa.Super. 39, 613 A.2d 20 (Pa.Super.1992). An abuse of discretion requires proof of more than a mere error in judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice, or partiality.
Since abuse of discretion allegations call for a review of the record, it is important to remember that this Court “is not free to usurp the trial court’s duty as the finder of fact.” Nemoto v. Nemoto, 423 Pa.Super. 269, 620 A.2d 1216, 1219 (Pa.Super.1993) (citing Edelstein v. Edelstein, 399 Pa.Super. 536, 582 A.2d 1074, 1076 (Pa.Super.1990)). As this Court stated on prior occasions, “Appellate courts are becoming more reluctant to substitute themselves as super-support courts when they have not had the opportunity to see and hear the witnesses and so determine credibility.” Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287, 288 (Pa.Super.1976).
Our review of the record in light of the heightened standard of review applicable in alimony and child support cases leads us to find no abuse of discretion by the court below. The court below did not believe husband’s argument that he was not duty bound to report the increase in his income in May 1994, as it did not constitute a material change in circumstances. Husband has failed to demonstrate by clear and convincing evidence that the lower court’s determination based on testimony presented and case law constitutes an abuse of discretion.
Additionally, husband argues that the court below abused its discretion in allowing for retroactivity prior to the filing date of the modification petition. Again, a review of the record and appellant’s brief fails to present clear and convincing evidence that the lower court abused its discretion by misapplying the law. Orders modifying all types of support agreements can be retroactive to dates prior to the filing of the petition where filing was delayed due to a misrepresentation by another party, so long as the petition is filed in a timely fashion upon discovery. See Albert v. Albert, 707 A.2d 234 (Pa.Super.1998). This rule applies in both alimony adjustments and child support adjustments. See id. at 236 (applying retroactivity in adjustments to support payments for wife and then minor child without distinction). Appellant argues that the facts presented before the court below clearly show that husband did not make such a misrepresentation in this case. It is not this Court’s role to act as fact-finder in support cases, absent clear and convincing evidence of an abuse of discretion. The evidence presented does not approach the clear and convincing standard needed to prove abuse of discretion.
Since husband failed to show by clear and convincing evidence that the court below abused its discretion when ordering the modification of the alimony and support orders, we affirm the decision of the court below.
Order affirmed.
Concurring Opinion by SCHILLER, J.