El Moursi, K.M. v. Al-Amin, J. ( 2016 )

J-S59014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.M. YASMINE EL MOURSI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JIBREEL AL-AMIN,
Appellee No. 364 EDA 2016
Appeal from the Order Entered January 8, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
No. 15-08466
PACSES No. 789115353
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 26, 2016
K.M. Yasmine El Moursi (Mother) appeals from the January 8, 2016
order, entered after a hearing, that denied her complaint for child support,
which requested retroactive support from Jibreel Al-Amin (Father)1 for their
two adult children for a period during the children’s minority. After review,
we affirm.
The trial court provided the following factual and procedural history of
this matter:
Mother, a German citizen, filed a complaint for child
support for two adult, emancipated “children” Hawwa Al-Amin
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Father has not filed a responsive brief in this case.
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age twenty-three (23) and Ibrahim Al-Amin age twenty-four
(24). Appellee Jibreel Al-Amin, (hereafter “Father”) and Mother
were married in May of 1990. The couple had two children.
Ibrahim Al-Amin born [in] April [] 1991 in Tacoma, Washington,
and Hawwa Al-Amin born [in] March [] 1992 in Eberbach,
Germany.
Mother testified credibly that the parties lived together in
Tacoma, Washington, and moved to Germany in June of 1991.
On May 9, 1992, while in Germany, Father was arrested and
removed from the home. Father was tried and convicted in
December of 1992. Father was sentenced to three (3) years and
nine (9) months in prison, served two (2) years, and was
deported from Germany to the United States. Mother returned
to the State of Washington and filed for a divorce in June of
1992. She then returned to Germany. Mother came back to
Washington in December of 1992, stayed for an unidentified
amount of time and returned to Germany. Mother waited for,
but did not receive a divorce from the State of Washington.
Thereafter, Mother filed for a divorce in Germany, which was
granted in the summer of 1995. Mother returned to the United
States in February 1998 and resided there with the children until
September 2000. Mother and children moved to Munich,
Germany after September 2000.
Mother testified vaguely about her efforts to obtain child
support. She first sought to obtain child support from Father
through the German authorities in August of 1995. Mother
stated, “I gave them the copy of the passport, of his Social
security number, the address of his sister from Philadelphia, and
everything.” Mother further testified that she did not know how
long the German authorities tried to locate Father before
notifying Mother that they could not find Father. Mother testified
on cross examination that she moved approximately seven
times, and that each time she moved to a new city in Germany
she notified the authorities of Father’s information. Mother
stated she received “social money” in Germany. Mother
described social money as welfare, but was unable to elaborate
on the monetary amount received or the time periods for which
she received the funds. In March of 2009, Mother contacted
social services in the State of Washington in the United States.
Mother testified that they were “unable to help her.” It was
Father who contacted Mother through Facebook in 2011. Mother
testified that she did not pursue child support at that time.
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Father testified credibly that he returned to the United
States in March of 1994. He lived in New York, where he resided
in a shelter with the Salvation Army, and attended school.
Shortly thereafter, in 1995, Father returned to Philadelphia. He
has maintained residency in Philadelphia since 1995. Father
contacted one of Mother’s friends shortly after his return to the
United States, and he spoke with Mother by phone briefly.
Thereafter, he never spoke to Mother again. Father's personal
papers, left behind in Germany when he was deported to the
United States, were returned via mail service to his sister’s
address in Philadelphia. The box had Mother's name on the
return address. Father became a real estate agent in 2001, and
practiced the profession until 2013. Father located the two
subject children of the support complaint on Facebook in 2010.
Father paid child support in the State of Washington until
2013, for a child (hereafter “eldest son”) from another
relationship who was born prior to his marriage to Mother.
Father's support was garnished from his wages. Father had
contact with his eldest son, and said child came to live with
Father off and on from the age of fourteen (14) to eighteen (18).
Mother was aware of the existence of Father’s eldest son, his
date of birth, and where the eldest son resided. Although
Mother testified she contacted Washington State authorities
concerning child support, it is incredible that Washington State
would be unaware of the location of a Payor (Father) who
remained in their system until at least 2013.
Trial Court Opinion (TCO), 3/24/16, at 1-4 (citations to the record omitted).
Mother filed the child support petition underlying this case on June 19,
2015. A hearing was held on January 8, 2016, resulting in the denial of
Mother’s support petition. Mother then filed the instant appeal and raises
the following question for our review:
Whether [Father] can be excused from paying support for minor
children because [M]other filed her complaint for support after
the children had reached majority and the trial court declined to
extend the retroactive period as allowed by [Pa.R.C.P.]
1910.17(a), when [F]ather’s whereabouts were unknown due to
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his conviction and incarceration in Germany for sexually abusing
the half-sister of children, his subsequent deportation from
Germany without [M]other’s knowledge, and even though
[M]other, a German resident, continued to search for [F]ather in
order to pursue support despite the geographic, financial and
language barriers she faced.
Mother’s brief at 4.
When reviewing an issue relating to child support such as the one now
before this Court, we are guided by the following:
[T]his 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.
Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations
omitted). Furthermore, this Court:
must accept findings of the trial court that are
supported by competent evidence of record, as our
role does not include making independent factual
determinations. In addition, with regard to issues of
credibility and weight of the evidence, this Court
must defer to the trial judge who presided over the
proceedings and thus viewed the witnesses first
hand.
Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008).
“When the trial court sits as fact finder, the weight to be
assigned the testimony of the witnesses is within its exclusive
province, as are credibility determinations, [and] the court is
free to choose to believe all, part, or none of the evidence
presented.” Stokes v. Gary Barbera Enterprises, Inc., 783
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A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723,
797 A.2d 915 (Pa. 2002). “[T]his Court is not free to usurp the
trial court's duty as the finder of fact.” Isralsky v. Isralsky,
824 A.2d 1178, 1190 (Pa. Super. 2003) (quoting Nemoto v.
Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1219 (Pa. Super.
1993)).
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009).
Mother begins her argument by asserting that the trial court
misapplied Pa.R.C.P. 1910.17(a), which provides:
(a) 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. In a child support case, if a change in
custody occurs after the date of filing, but before a domestic
relations conference is held, the trier of fact shall enter a
charging order going forward in favor of the primary custodian
that shall be effective from the date of the change in custody.
The trier of fact also may enter a retroactive arrears order in
favor of the party who was the primary custodian at the time of
filing. Such an order may address the period from the date of
filing to the date of the change in custody. However, a
modification of an existing support order may be retroactive to a
date preceding the date of filing 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.
Id. (emphasis added).
Although Mother recognizes that this rule directs that the effective
date of a support order is retroactive to the date that a complaint is filed,
she contends that this rule does not prohibit a pre-complaint effective date.
Rather, Mother asserts that because there were “real and serious reasons for
the delay in filing[,]” the court should not have “mechanically” applied this
rule without “exercising its judgment, where … it [was] not prohibited from
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doing so.” Mother’s brief at 10. In other words, Mother contends that the
court erred in its application of Rule 1910.17 and should not have ignored
the equities and the best interests of the children.
In support of her position, Mother distinguishes her situation from that
in Pfeifer v. Cutshall, 851 A.2d 983 (Pa. Super. 2004), a case relied on by
the trial court. Mother’s view is that in Pfeifer the father was not notified or
given the opportunity to be heard before the original support order that he
had agreed to was modified to be retroactive to the date of the child’s birth.
Here, Mother claims that the delay in her filing of a complaint occurred
because Father could not be found and given notice and an opportunity to be
heard. Therefore, applying equitable principles, Mother asserts that the
entry of an order for support should be allowed retroactive to a date prior to
the filing of her complaint.
Mother also relies on A.S. v. I.S., 130 A.3d 763 (Pa. 2015), to support
her request that the court should weigh the equities between the parties.
The A.S. decision involved “a stepfather who haled [sic] a fit parent into
court, repeatedly litigating to achieve the same legal and physical custodial
rights as would naturally accrue to any biological parent.” Id. at 770. As a
result, our Supreme Court held that due to the stepfather’s actions, he was
held liable for child support. The Court concluded that because the
stepfather had “taken sufficient affirmative steps legally to obtain parental
rights[,]” he “should share in parental obligations, such as paying child
support.” Id. at 770-71. “Equity prohibits [the] [s]tepfather from
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disavowing his parental status to avoid a support obligation to the children
he so vigorously sought to parent.” Id. at 771.
Here, the trial court extensively discussed its reasons for its denial of
Mother’s complaint, stating:
Pennsylvania Rules of Civil Procedure state that both a complaint
and a petition for modification are effective as of the date of
filing unless the order states otherwise. Pa. R. Civ. P.
1910.17(a). The rule goes on to state that a modification of an
existing support order may be retroactive to a date preceding
the date of filing if a compelling reason exists. Id. The
legislature specifically included both a complaint and a petition
for modification when stating the effective date of a support
order as the date the complaint or petition was filed. Only a
modification of an existing support order was permitted to be
effective retroactive to a date preceding the date of filing. The
legislative intent is clear in not allowing original complaints to be
effective retroactive to a date preceding the filing of a complaint.
A support order may not be made retroactive to a date
preceding the filing of the complaint. Pfeifer v. Cutshall, 851
A.2d 983, 985 (Pa. Super. 2004). In Pfeifer, a support order
from Germany, arrears were calculated from a period of time
when no child support order existed. Id. at 986. There the
Court held that it would be against public policy to enforce: a
foreign order that would not have been allowed under
Pennsylvania law. Id. at 986. The German order was
recalculated in accordance with Pennsylvania law, and the
effective date of the support order in Pennsylvania was
determined to be the date the support order was filed. Pfeifer
refused to recognize the arbitrary date assigned by the foreign
court. Id. at 987. See also, Bowser v. Blom, 766 A.2d 1259,
1261 (Pa. Super. 2001). (Where first support complaint is
dismissed, support order is retroactive to date second complaint
was filed). Christianson v. Ely, 575 Pa. 647, 664[, 838 A.2d
630] (2003). (Where first support complaint is neither
discontinued nor terminated the support order is retroactive to
date first complaint was filed).
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Here, the complaint for support was filed on June 19, 2015. At
the time the complaint was filed, the emancipated “children”
were twenty-three (23) and twenty-four (24) years of age. The
support order, if issued, could only have been effective from the
date the complaint was filed. The trial court lacks the authority
to order retroactive child support for emancipated children.
Even if the trial court wished to recognize an earlier date, there
would have been no compelling or permissible reason to do so.
. . .
The trial court found no significant physical or mental disability
that would have prevented Mother from filing a complaint for
support. Mother testified credibly that when the children were
minors she was able to work and did work sporadically; she was
able to obtain a divorce and change her child's name through the
German courts; she was able to travel back and forth between
Germany and the United States, and she was able to obtain
government financial resources to her benefit.
The trial court did not find that Father made a misrepresentation
to Mother or otherwise hid his whereabouts. Father testified
credibly that he contacted Mother, through a friend, and spoke
to Mother briefly when he returned to the United States in 1994.
Father worked as a real estate agent from 2001 until 2013, and
his contact information was listed on the Internet. Father
received a package from Mother sent via mail to his sister’s
Philadelphia address. Father paid child support for another child
in the State of Washington, the support was garnished from
Father’s pay, and his contact information was known to the State
of Washington. Mother testified credibly that she was aware of
the sister’s contact information and had personally spoken with
one of Father’s sisters, she was aware that Father had family in
Philadelphia, and she was aware of Father’s other son and his
date of birth. Mother had a copy of Father's passport and Social
Security number.
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Despite the Commonwealth’s assertions,[2] this case has no
compelling reason that would set it apart from other support
complaints. The court has procedures in place to work with
foreign orders. Individuals have access to language interpreters.
Father’s crime, although never specified on the record, was
allegedly heinous, but there was no testimony whatsoever that
Father’s conviction created a significant mental or physical
disability in Mother. In Philadelphia, Pennsylvania, the Office of
Child Support Enforcement represented Mother and Father
appeared pro se. There was no testimony concerning Mother’s
prior representation, if any, or Mother’s efforts to obtain counsel
to pursue child support. Mother did not show that she suffered
any prejudice from her previous lack of representation. Mother
also failed to show that she suffered any language impediment.
She proceeded in English and never requested an interpreter
despite the [c]ourt’s ability to furnish her with one.
Mother failed to promptly file a complaint when she became
aware of Father's whereabouts. Father contacted Mother
through Facebook in 2011. Mother denied Father’s friend
request and blocked Father’s access. Mother took no active
steps to seek child support until four years later in 2015.
The trial court is required to rely on the evidence presented at
trial. Both parties testified on direct examination, cross
examination, and answered questions asked by the court. No
other evidence, documents, or exhibits were presented to the
trial court. Based on the notes of testimony and credibility
determinations the trial court found no compelling circumstances
from which to fashion an equitable remedy contrary to current
child support statutes, regulations, and case law.
TCO at 6-9 (citations to the record omitted).
We agree with the trial court’s interpretation of Rule 1910.17,
indicating that a support order is only retroactive to the date the support
____________________________________________
2
The trial court references the Commonwealth in this context because
Mother was represented by the Philadelphia Office of Child Support
Enforcement as noted infra in its opinion.
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complaint was filed, as opposed to a situation where a petition for
modification of a prior support order was filed. The cases cited by Mother
and the court reference retroactivity; however, those cases and others
located by this Court note that retroactivity to the date the complaint was
filed is preferable and that if the court denies retroactivity to the date of the
complaint then the court should state on the record its reasons for not so
ordering retroactivity. See Sutliff v. Sutliff, 489 A.2d 764, 781 (Pa. Super.
1985); Crawford v. Crawford, 633 A.2d 155, 162 (Pa. Super. 1993).
However, none of the cases provide for retroactivity to a time before the
support complaint was filed. Therefore, we conclude that the trial court not
only correctly interpreted Rule 1910.17, but also applied it properly.
In addition, we point out that 23 Pa.C.S. § 4352, which is entitled
“Continuing jurisdiction over support orders[,]” also supports the trial court’s
and this Court’s interpretation of the statutory basis for deciding the issue
before us. Section 4352 deals solely with petitions for modification of
support and, specifically, subsection (e) entitled “Retroactive modification of
arrears” states:
(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. However, modification
may be applied to an earlier period if the petitioner was
precluded from filing a petition for modification by reason of a
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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. § 4352(e). Thus, again it is evident that orders directing
payment of support pursuant to modification petitions are retroactive to the
date notice was given as to the filing of the petition, unless the reasons
precluding filing are proven. However, since the matter now on appeal
arises from an initial complaint for support, any rules referencing
modification petitions are not relevant.
Lastly, we conclude that the trial court’s reasons for denying Mother’s
petition for retroactive child support, based on its factual determinations
relating to the evidence presented, are not an abuse of discretion. The trial
court’s recitation of the testimony presented and its credibility
determinations, quoted above, support its conclusion that Mother is not
entitled to an equitable remedy that can overcome what has long been the
procedure followed in support matters.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2016
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