Summers v. Summers , 35 A.3d 786 ( 2012 )

OPINION BY

STRASSBURGER, J.:

Keziah Summers (Mother) appeals from an order modifying the parties’ child support, claiming her procedural due process rights were infringed upon by the trial court. We affirm.

Mother and Dale Summers (Father) are divorced. They have three minor children together. Per the parties’ custody agreement, Mother cares for the minor children during the week and works as a registered nurse on the weekends. Father cares for the minor children on the weekends and works as a mechanic at Cumberland Truck during the week. On September 28, 2010, Father filed a petition for modification of a prior support order entered on May 1, 2009. Father’s petition failed to aver specifically any facts or request any relief. Despite these deficiencies, the Lancaster County Domestic Relations Section, a county filing agency, accepted the petition per its internal protocol of accepting all petitions, and scheduled a support conference. The support conference was held on October 19, 2010. On October 20, 2010, an interim order reducing Father’s child support obligation was entered.¹ Mother filed a demand for a hearing on November 18, 2010. A de novo hearing was conducted by the trial court on December 10, 2010. Based on testimony elicited at the hearing, the trial court entered an order on December 13, 2010, modifying Father’s support obligation to $909.42 per month in support and $90.00 per month in arrears. Mother filed this timely appeal. Both Mother and the trial court complied with Pa.R.A.P. 1925.

Mother raises two issues on appeal.

1. Was Mother denied her state and federal right of Due Process when Father never alleged any facts nor requested any relief in his petition for modification of child support to apprise [Mother] of the specific nature of his claim for her defense?

2. Was Mother denied her state and federal right of Due Process when the trial court accepted the physician’s letter into the record ex parte, used its contents to find Father was disabled, and did not grant her an opportunity to review the document with her attorney prior to trial?

Mother’s Brief at 4.

Our standard of review of child support orders is well settled:

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) (internal citation omitted). We further note that

[a]n award of support, once in effect, may be modified via petition at any time, provided that the petitioning party demonstrates a material and substantial change in their circumstances warranting a modification. See 23 Pa.C.S. § 4352(a); see also Pa.R.C.P. 1910.19. The burden of demonstrating a “material and substantial change” rests with the moving party, and the determination of whether such change has occurred in the circumstances of the moving party rests within the trial court’s discretion. See Bowser v. Blom, 569 Pa. 609, 807 A.2d 830 (2002).

Plunkard v. McConnell, 962 A.2d 1227, 1229 (Pa.Super.2008).

Mother first claims that she was denied her right to procedural due process when the Lancaster County Domestic Relations Section accepted Father’s petition to modify the existing custody order despite its patent deficiencies.² Mother argues that Father’s petition violates the provisions of Pa.R.C.P. 1910.19(a), which states, in pertinent part

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.

Pa.R.C.P. 1910.19(a).

In evaluating Mother’s claim, the trial court recognized, “[o]bviously, Father failed to comply with Pa.R.C.P. 1910.19(a).” Trial Court Opinion, 3/15/2011, at 4. However, Father’s reason for seeking modification (his disability) was explored at the conference held some two months prior to the de novo hearing before the trial court. Mother had notice of the basis of Father’s claims prior to the de novo hearing, thus the faulty petition for modification did not prejudice Mother.

Mother next claims her due process rights were violated when the trial court accepted Father’s physician’s information request form³ into the record and used its contents to calculate support. Our law is clear that,

[i]n order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue. On appeal the Superior Court will not consider a claim which was not called to the trial court’s attention at a time when any error committed could have been corrected. In this jurisdiction ... one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa.Super.2000). Based on the above precedent, the trial court found Mother’s second issue waived for failure to object to admission of the physician’s information request at the de novo hearing. The trial court recognized the physician’s information request as a classic hearsay statement, to which Mother bore the burden of objecting.⁴ Trial Court Opinion, 3/15/2011, at 8-9. Mother failed to do so. Based upon our review of the record, we conclude that Mother has failed to preserve this issue for appeal.

Order affirmed. Jurisdiction relinquished.

Judge DONOHUE files a Dissenting Opinion.

1 . The October 20, 2010 interim order reduced Father's support obligation from $750.68 per month support and $75.00 per month arrears, previously ordered on May 1, 2009, to $629.75 total per month, $569.75 in support plus $60.00 per month arrears.

2 . Father's September 23, 2010 petition for modification is a standard form, signed by Father, and filed with the Lancaster County Domestic Relations Section. It is undisputed that Father’s petition did not set forth any material or substantial change in circumstances upon which the petition was based. Instead, Father merely circled the bullet point number 2 appearing next to the space provided for a petitioner to describe any change in circumstances he or she alleges form the basis of a petition.

3 . The Lancaster County Domestic Relations Office sent a standard "Physician’s Information Request" form to Father’s doctor before the parties’ support conference, requesting basic information regarding Father’s alleged injury, his prognosis and course of treatment. Father authorized release of this information. The completed form was returned to the Domestic Relations Office on September 23, 2010 and indicated that Father had suffered a back injury, had undergone surgery, and had been "continuously disabled (unable to work)’’ since July 12, 2010. The form did not provide a timeline for Father's return to work. Physician’s Information Request Form, 9/23/2010. The information provided on the form was summarized in Domestic Relations Officer’s Summary of the Trier of Fact which, along with a copy of the Officer’s Recommended Order, was mailed to Mother on October 20, 2010. Trial Court Opinion, 3/15/2010, at 8.

4 . Given the cost of securing the testimony of a physician, either in court or via deposition, running into thousands of dollars, it is unrealistic to expect that any but the wealthiest support litigants will be able to afford to pay. Except in the criminal context where hearsay can violate the Confrontation Clause, U.S. Const. Amend. IV, the inadmissibility of hearsay is not constitutionally mandated. We suggest that the Domestic Relations Rules Committee consider a rule analogous to Pa.R.C.P. 1311.1 dealing with the admissibility of expert reports in arbitration appeals.