F.E.S. v. A.L.S., III ( 2019 )

J-A24023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
F.E.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.L.S., III :
:
Appellant : No. 1483 MDA 2017
Appeal from the Order Entered August 24, 2017
In the Court of Common Pleas of Franklin County Domestic Relations at
No(s): DRS 2015-363,
PACSES 275115394
BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 05, 2019
A.L.S., III (“Father”) appeals from the order entered August 24, 2017,
denying his Motion to Suspend and Exceptions to the order of February 23,
2017, which imposed child and spousal support. Father claims he was denied
due process when he was required to proceed pro se at the de novo hearing
on the support petition filed by F.E.S. (“Mother”) and that there was
insufficient evidence to sustain the resulting support order. We quash the
appeal as it relates to the order of spousal support, as that order is
interlocutory due to the parties’ pending divorce, and affirm the order as it
relates to child support.
J-A24023-18
Mother and Father were married in 1986, and have one dependent child,
M.S., born in 1998 (“Child”).1 The parties separated in 2014, and Mother filed
for support. After a hearing in July 2015, a domestic relations officer entered
an order requiring Father to pay monthly spousal support, child support, and
arrearages. Although Father appealed, the parties reconciled, and stipulated
to terminating support and arrears and withdrawing the appeal.
The reconciliation was brief, and Mother initiated the instant support
action by filing a new complaint for spousal and child support on August 9,
2016. A conference was held before a domestic relations officer on October
24, 2016, at which both parties were represented by counsel. Father, a self-
employed contractor, claimed during the conference that he was unemployed
and disabled, and was in the process of appealing the denial of Social Security
disability benefits. The conference was continued until November 14, 2016, to
allow Father to obtain a physician’s form verifying his disability. Father did not
provide a physician’s form at the second portion of the conference.
The officer entered an order requiring Father to pay monthly child
support and arrears. The officer concluded that Mother, who is unemployed
and home-schools Child, has no income. The officer found that Father had an
annual earning capacity of $17,000, based on his 2014 federal income tax
return and his Social Security earning statements from 2008 to 2012, and that
Father had a monthly income of $790 from a rental property. The order
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1The record indicates that the parties have other children who were no longer
minors when the support action commenced.
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specified that Father was not required to pay spousal support because the
amount of spousal support calculated by the officer was offset by the amount
Father was paying on the mortgage of the marital home. The order also
specified that Father had not disputed Mother’s entitlement to spousal
support.
Father filed a pro se appeal for a de novo hearing on December 5, 2016.
In the demand, Father stated that his lawyer had “dropped” representation of
Father on December 1, and that Father was looking for new representation. It
also stated that Father intended to introduce as evidence at the appeal “yet
to be determined Drs. reports.” Mother filed a demand for an appeal hearing
as well, on the basis that the officer erred in calculating Father’s mortgage
adjustment.
The de novo hearing on the support petition was held before a support
Master on February 8, 2017.2 Father appeared without counsel, saying that
his prior counsel had “dropped [him] three days before the appeal [period
expired].” N.T., 2/8/17, at 3. Mother’s attorney asserted that Father’s counsel,
who had not officially withdrawn, had told her that Father requested she not
represent him on the appeal. Id. at 31; see also id. at 4-5. Father responded
that he “did not really release her on this matter.” Id. at 31-32. Father said
that he had spoken with several other attorneys after filing the appeal, who
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2 In the interim, Mother filed a petition for contempt for Father’s failure to
comply with the November 14th order. As the contempt proceedings that
followed are not part of this appeal, we shall not address them further.
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Father asserts had declined to represent him on the basis of a conflict of
interest, and so he was “forced to represent [him]self.” Id. at 4; see also 31-
32, 38. Father did not request a continuance to obtain new representation.
During the hearing, Father testified upon cross-examination by Mother’s
attorney and in response to direct questioning by the Master. He stated that
he has been disabled since 2010, and that he stopped working due to his
disability in 2014, after his adult sons had stopped helping him. Id. at 18-19.
He testified that he had had little income in 2015, and no income in 2016, and
therefore had not prepared tax returns for those years. Id. at 8. His 2014 tax
return was entered into evidence as proof of his income. Id. at 37. He testified
that he also received monthly income from a rental property. Id. at 20-21. In
addition, Father admitted that he had increased the amount due on the
monthly mortgage payment by withdrawing additional funds on the same
credit line for personal use. Id. at 22-26, 30, 33-36.
Father was unable to provide evidence of his disability by way of a
physician’s form. Mother presented a physician’s form from Father’s primary
care provider that described Father’s ailments but stated that Father had not
been evaluated for a disability. Id. at 12. Father testified that he has been
trying to find a doctor to fill out a form stating he was disabled, and presented
a letter stating that his primary care provider does not do disability
assessments. Id. at 13-15, 33, 38-40. He confirmed that he did not have an
appointment with a doctor scheduled as of the time of the hearing. Id. at 13-
14. Father attempted to introduce older medical reports, but as none of them
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were verifications of a disability, the court did not consider them. Id. at 40-
42. Father testified as to the extent of his injuries. Id. at 18-19. He admitted
that Social Security had determined he is not disabled. Id. 15-16, 20.
Mother testified that she has been living with Child in her friend’s
basement, where she does not pay rent, and that she has no income. Id. at
43-44, 56.
Five days after the hearing, on February 13, 2017, Father’s counsel of
record filed a praecipe to withdraw her appearance, stating that Father had
requested that she not represent him.
On February 23, 2017, the Master entered a Report and
Recommendation. The Master found that Father had willfully reduced his
income, as he could provide no medical document specifying that he is unable
to work. The Master set his earning capacity as $17,000 annually, based on
the findings of the conference officer, not including the monthly income from
the rental property. The Master concluded that Father’s monthly mortgage
credit should be set as the amount due before Father had increased the
balance by withdrawing additional funds. After considering the amount Father
paid annually for real estate taxes and homeowner’s insurance and Father’s
filing status, the Master calculated his monthly net income for support
purposes as $1,783.52, and recommended the court order Father to pay
$406.36 in spousal support and $429 in child support, effective August 9,
2016. The Master also recommended Father be ordered to pay ten percent of
his combined obligation, $83.54, towards his arrearages.
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That same day, the trial court issued an order approving the Master’s
Report and Recommendation.3 The next day, the trial court issued a
corresponding administrative order putting support in place.
The parties were given until March 16, 2017, to file exceptions. Father
filed timely pro se exceptions on March 16, 2017, stating that he had a medical
evaluation scheduled for April 18, 2017; that Mother’s Social Security
determination said she could perform “sedentary work”; and that there had
been a change to the mortgage payments. He also stated that he had been
unable to prepare information because he had no representation, and
requested an extension to file exceptions.
Father filed additional exceptions through new counsel on March 20,
2017. The exceptions were dated March 16, 2017, and date-stamped by the
court on March 22, 2017. In these exceptions, Father argued, inter alia, that
Father has no earning capacity aside from the rental property and that the
doctors’ reports Father presented should have been sufficient proof that he
was disabled.
On May 10, 2017, Father filed a Motion to Suspend the support order
based on after-discovered evidence and lack of due process. Father provided
a physician’s information form and a functional capacity evaluation, both dated
April 28, 2017, stating that he was disabled. Father contended that these
documents were after-discovered evidence on the basis of which the court
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3The order is time-stamped February 24, 2017, but is dated February 23,
2017.
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should amend the support order. Father claimed he had been denied due
process because he had been unrepresented by counsel at the February 8 de
novo hearing before the Master.
The trial court denied Father’s Motion to Suspend and Exceptions in a
single order entered on August 24, 2017. Father appealed, and raises the
following issues:
1. Did the trial court abuse its discretion and commit errors of law
by denying [Father’s] Exceptions and Motion to Stay Enforcement
Of and Remand of an Order of Support[4] arising from a Support
Master’s Recommendations when the hearing of the Master
violated due process because [Father] was forced to proceed pro
se despite having an attorney and because he was not provided
an opportunity to testify in his own right[?]
2. Was there insufficient evidence to sustain the order of
support[?]
Father’s Br. at 3 (answers below omitted).
Before we approach Father’s issues, we address our jurisdiction over the
appeal based on the appealability of the order in question. See Kensey v.
Kensey, 877 A.2d 1284, 1287 (Pa.Super. 2005). Mother argues that Father
filed for divorce approximately four months before the court entered the order
denying Father’s Exceptions and Motion to Suspend from which Father
appealed. See Mother’s Br. at 6. Mother attached the docket for the divorce
action as an appendix to her brief; the docket shows that Father filed a
complaint in divorce on April 21, 2017, under a separate docket number than
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4Father’s re-branding of his Motion to Suspend in his statement of questions
has no effect on the appeal.
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the support action. Id. at App. A. According to Mother, the divorce action
rendered the spousal support order interlocutory and unappealable. Id. at 6-
7 (citing Thomas v. Thomas, 760 A.2d 397 (Pa.Super. 2000)).
Father does not dispute he filed for divorce prior to the court’s entry of
the order under appeal. Rather, Father argues that this Court cannot consider
the divorce action because the certified record includes no reference to the
divorce. Father’s Reply Br. at 2. In the alternative, Father argues that we have
jurisdiction to review the spousal support order because Father was deprived
of due process at the support proceeding, and the resulting support order is
therefore void. Id. at 3. Father also argues that postponing review of the
spousal support order would result in financial hardship. Id. at 3-5. Father
further contends that bifurcating review of the spousal support order from the
child support order would defeat the purpose of the rule requiring this Court
to defer review of spousal support orders until the divorce action is finalized,
which is judicial efficiency. Id. at 5-6.
As we observed in Thomas, “a spousal support order entered during
the pendency of a divorce action is not appealable until all claims connected
with the divorce action are resolved.” Thomas, 760 A.2d at 398. In Thomas,
the husband appealed the spousal support order after the wife filed for
divorce. Id. at 399. We quashed the appeal of the spousal support order
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because it followed the filing of the divorce complaint in the trial court. Id.5
In the instant case, Father filed a complaint in divorce before the court ruled
on his Exceptions and Motion to Suspend the support order. Father’s initiation
of a divorce action rendered the court’s order relating to spousal support
interlocutory, and we therefore quash Father’s appeal insofar as it relates to
spousal support.
We acknowledge that because the trial court assigned Father’s divorce
action a separate docket number, the divorce action is not referenced in the
record of the support action. However, we have previously held that spousal
support orders are interlocutory for purposes of appeal if a divorce is pending,
even when the support and divorce actions are filed separately. See Leister
v. Leister, 684 A.2d 192, 193-95 (Pa.Super. 1996) (en banc) (holding spousal
support action initiated by complaint filed separately from companion divorce
action is not to be differentiated from the divorce action for purpose of
deciding appealability of spousal support order). Further, the issue of the
appealability of the support order was not before the trial court. Therefore, no
record was created in that court on this issue. In this Court, Father has not
denied Mother’s assertions that he filed for divorce before filing a notice of
appeal, and we have previously relied on statements made in parties’
appellate briefs in order to determine whether a divorce action is pending at
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5 We noted that where the converse occurs, and an appeal from a spousal
support order is taken before the divorce complaint is filed, the support order
is appealable. Thomas, 760 A.2d at 399 (citing Hasson v. Hasson, 696 A.2d
221, 222 (Pa.Super. 1997)).
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the time of the appeal. See Capuano v. Capuano, 823 A.2d 995, 999
(Pa.Super. 2003). Pursuant to Pennsylvania law, we may also take judicial
notice of the record of divorce proceedings between parties when necessary.
See Gantz v. Gantz, 488 A.2d 17, 20 n.6. (Pa.Super. 1985). We therefore
do not find the lack of reference to the divorce in the record of the support
proceedings to be an impediment to our conclusion that a divorce action
between the parties is pending, and that this affects the appealability of the
support order.
We are also unconvinced that we should review the spousal support
order because Father’s claims sound in due process and denial of immediate
review will result in economic hardship. We note that postponing review of
spousal support until the corresponding divorce action is finalized, in addition
to fostering judicial efficiency, generally “favors the indigent party by
removing from the party with the greater resources the ability to engage in
dilatory and costly litigation.” Leister, 684 A.2d at 195. We cannot allow
Father to stall resolution of the divorce case by appealing from the support
order, despite his claim of economic hardship.
Although we quash Father’s appeal insofar as he challenges the award
of spousal support, we see no jurisdictional impediment to our review of the
award of child support.6 “Unlike spousal support, child support orders require
immediate review ‘to protect the interest of the child, to avoid hardship and
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6 Mother does not argue that the order of child support was not appealable.
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to assure uninterrupted maintenance by [his or her] parents.’” Deasy v.
Deasy, 730 A.2d 500, 502-03 (Pa.Super. 1999) (quoting Ritter v. Ritter,
518 A.2d 319, 322 (Pa.Super. 1986)); see also Capuano, 823 A.2d at 998-
99 (finding award of child support appealable prior to the entry of final divorce
decree). Accordingly, the order of August 24, 2017, is appealable as it relates
to child support, and we proceed to the merits of Father’s issues.
I. Father’s Right to Due Process
Father argues that the court erred in denying his Motion to Suspend
because the court violated his right to due process when it (1) forced Father
to proceed pro se at the February 8 Master hearing, even though he had an
attorney of record, and (2) did not give Father an opportunity to be heard.
Procedural due process requires adequate notice, an opportunity to be heard,
“and the chance to defend oneself before a fair and impartial tribunal having
jurisdiction over the case.” S.T. v. R.W., 192 A.3d 1155, 1161 (Pa.Super.
2018). Whether due process has been violated in any given situation “is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” Id. at 1160.
A. Father’s Right to Counsel
Father first argues that the Master violated his due process rights when
she forced Father to proceed pro se at the de novo hearing without his
attorney of record. Father argues that his counsel had not officially withdrawn
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prior to the hearing, in contravention of Pa.R.C.P. 1012(b)(1).7 Father claims
he was abandoned by counsel, and contends that the Master erred in
considering Mother’s attorney’s assertion that Father had told his attorney he
did not want her representation, as it was hearsay. Father also claims that
proceeding without counsel was unfair, because he was unable to competently
present medical evidence to prove his disability and diminished earning
capacity, and failed to adduce evidence regarding Mother’s earning capacity.
He asserts that a continuance in order to allow him to obtain counsel would
have caused only minimal prejudice to Mother, since no prior continuances
had been requested.8
It is well established that “[t]here is no right to counsel in divorce,
custody, or support proceedings.” Karch v. Karch, 879 A.2d 1272, 1274
(Pa.Super. 2005) (citing Witt v. LaLonde, 762 A.2d 1109, 1110-11
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7 Father argues for the first time on appeal that he had a statutory right to
counsel under 42 Pa.C.S.A. § 2501(a), which states “(a) Civil matters.--In all
civil matters before any tribunal every litigant shall have a right to be heard,
by himself and his counsel, or by either of them.” 42 Pa.C.S.A. § 2501(a). He
also argues that when his attorney failed to formally withdraw, she violated
Rule of Professional Conduct 1.16. As Father failed to raise these arguments
before the trial court, they are waived. See Pa.R.A.P. 302(a). However, we
note that the plain language of § 2501(a) affords a litigant a statutory right
to be heard by either himself or counsel. Compare id. with § 2501(b)
(affording criminal defendants the right to be heard by himself and counsel).
As the court heard Father, his statutory right to be heard by either himself or
counsel was satisfied.
8 He also argues that he should be afforded counsel because counsel is
appointed for interstate support actions.
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(Pa.Super. 2000)). And, although the Pennsylvania Rules of Civil Procedure
require that counsel of record to request permission from the court before
withdrawing from representation, see Pa.R.C.P. 1012(b),9 the Rules do not
state that where an attorney fails to do so, the case may not proceed. Indeed,
to construe the rule in this manner would allow an obstructive or irresponsible
attorney to frustrate the court process.
Not only is there no absolute right to counsel in support proceedings,
this is not a situation in which counsel abandoned a party without notice.
Rather, by his own admission, Father knew more than two months
beforehand, as of December 1, 2016, that he would need new counsel for the
hearing. The hearing did not occur until February 8, 2017, and Father testified
that he had spoken with several other attorneys in the interim, but had been
unable to find one to take his case. Father made no allegations to the Master
that he was still attempting to acquire counsel, and did not request a
continuance in order to do so. This was therefore not a case in which the
actions of either the attorney of record or the court prevented a party from
having counsel.
In addition, the trial court explained in its Rule 1925(a) opinion that
Father had presented no evidence to the Master that he would be prejudiced
by proceeding pro se, whereas Mother, who was in need of support, would
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9 See also Himes v. Himes, 833 A.2d 1124, 1127 (Pa.Super. 2003) (holding
counsel’s failure to appear at a court proceeding prior to withdrawing under
the rules is grounds for a finding of criminal contempt).
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have been unduly prejudiced by a continuance, had the Master decided sua
sponte to impose one. The trial court also explained its concern with
preventing future cases where a party intending to delay a case could fail to
take adequate steps to obtain counsel but oppose proceeding pro se. We
observe, moreover, that the issues addressed at the hearing in this case were
not complex, and Father had been on notice, as of the initial support
conference in October 2016, that he required a physician’s form verifying his
disability.
Under these circumstances, we do not find that the action of the Master,
in failing to sua sponte continue the hearing, deprived Father of due process.
S.T., 192 A.3d at 1161; see also Pa.R.C.P. No. 218(b)(1) (providing that if a
defendant is not ready and has no satisfactory excuse, the plaintiff may
proceed to trial); Princess Hotels Int'l v. Hamilton, 473 A.2d 1064, 1066
(Pa.Super. 1984) (finding court’s refusal to grant continuance not an abuse of
discretion where appellant waited until the week before trial to find another
attorney and did not request a continuance until 4 days before trial).
Father argues that Karch does not establish that he has no right to
counsel, because Karch was decided within a divorce, rather than support,
context, and because, according to Father, Karch limited its holding as
inapplicable to unwilling pro se litigants. We are unpersuaded that Karch
affords Father a right to counsel in this case.
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In Karch, we held that an order disqualifying counsel did not meet the
criteria of an appealable order under the collateral order doctrine10 where it
did not completely deprive the defendant of the ability to be represented by
counsel. Karch, 879 A.2d at 1274. We contrasted the facts of Karch, in which
the plaintiff retained other counsel to represent him after the trial court
disqualified his previous counsel, from those of Vertical Resources, Inc. v.
Bramlett, 837 A.2d 1193 (Pa.Super. 2003), in which the court had
disqualified the only attorney the defendant could afford in her pursuit of her
petition to open judgment, effectively putting her out of court. Karch, 879
A.2d at 1274 & n.2. We recognized that in Karch, unlike in Vertical
Resources, we were “not faced with a situation where a litigant will be either
forced to proceed pro se or to withdraw the litigation if counsel is disqualified.”
Id.
Karch therefore recognized that a court should not take action that
would thwart a litigant’s ability to utilize counsel. However, Karch did not say
that the litigant had the right to counsel. Nor did it address the circumstances
of the instant case. Here, Father had notice of his counsel’s intent to withdraw
and opportunity to obtain new counsel, but failed to obtain new counsel, assert
he was in the process of obtaining new counsel, or request a continuance to
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10 Under the doctrine, an appeal can be taken from a collateral order, which
is “an order separate from and collateral to the main cause of action where
the right involved is too important to be denied review and the question
presented is such that if review is postponed until final judgment in the case,
the claim will be irreparably lost.” Karch, 879 A.2d at 1273-74 (quoting
Pa.R.A.P. 313(b)).
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obtain counsel. We cannot conclude that the action of the court thwarted
Father’s ability to obtain representation in the way contemplated by Karch.
Father also argues that Witt v. LaLonde, cited by Karch, recognized
that parties to a custody case have a statutory right to counsel under 42
Pa.C.S.A. § 2501(a). We disagree.
In Witt v. LaLonde, the defendant appealed from an order that the
parties attend a mediation session in their custody action without their
attorneys present. 762 A.2d at 1110. The defendant argued that the order
was appealable under the collateral order doctrine, as it affected her right to
counsel. Id. We held that (1) there was no right to counsel in the civil
proceeding, (2) a statutory right to counsel under 42 Pa.C.S.A. § 2501(a) was
not implicated because mediation was not a court proceeding, and (3)
postponing review until final judgment would not hinder the claim. Id. at
1110-11. We therefore did not hold, contrary to Father’s assertions, that there
is a statutory right to have counsel present in any civil court proceeding, such
that the Master’s failure to sua sponte order a continuance deprived Father of
due process. We repeat that there is no such right, and that Father was not
deprived of due process in this instance.
B. Father’s Opportunity to Present Evidence
The second portion of Father’s argument is that he was deprived of due
process when he was not given an opportunity to present his own case at the
de novo hearing. According to Father, although he was invited to present
documentary evidence, he was not given an opportunity to testify in his
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defense. Father points out that at one point, the Master told Father to restrict
his testimony to answering Mother’s questions, because he would be given a
chance to testify later. N.T. at 16. However, after he was cross-examined, the
Master only asked him if he had exhibits to present, and not if he had
additional testimony. Id. at 36-37. Father asserts that had he been permitted
to testify, he would have explained his physical limitations. He cites Capuano
v. Capuano for the proposition that “[a] de novo support case must be
remanded when evidence is not received from both parties and there must be
a full consideration of the issues as well as presentation of evidence.” Father’s
Br. at 21 (italics added) (citing Capuano, 823 A.2d at 1003-04).
We first conclude that Father has waived this issue by failing to object
at the time of the hearing. As Father failed to obtain counsel, he took the risks
inherent with self-representation, including failure to preserve issues. See
Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa.Super. 2003).
However, were it not waived, this issue would not merit relief. Although
the Master did not extend an explicit invitation for Father to present direct
testimony following the close of Mother’s case, the Master afforded Father
ample opportunity to present evidence during both cross-examination by
Mother’s attorney and questioning by the Master. Father repeatedly explained
that he was permanently injured but that he could not find a physician to
verify his disability. N.T. at 13-15, 18-19, 33, 38-40. The Master allowed him
to speak regarding his disability, even over the objection of Mother’s attorney.
Id. at 14. This is a far cry from the circumstances of Capuano, in which the
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court wholly precluded evidence of the appellant’s reduced income at the de
novo support hearing. 823 A.2d at 999. We therefore hold that the Master did
not deprive Father of an opportunity to be heard.
As we have concluded that neither Father’s lack of representation nor
the format of the de novo hearing offended Father’s due process rights,
Father’s first issue is without merit.
II. Sufficiency of Evidence
In his second issue, Father argues that there was insufficient evidence
to sustain the order of support. Prior to addressing the merits of these
contentions, we address Mother’s argument that they are waived, as Father’s
exceptions to the Master’s Report and Recommendation were untimely.
Pursuant to Rule of Civil Procedure 1910.12, a party may file exceptions within
twenty days of the date of the receipt or mailing of the report by the hearing
officer, and matters not included are deemed waived. Pa.R.C.P. 1910.12(f).
We have accordingly held that failure to file timely exceptions as required by
the Rule results in waiver of the claims of error. Metzger v. Metzger, 534
A.2d 1057, 1058 (Pa.Super. 1987); Sipowicz v. Sipowicz, 517 A.2d 960,
963 (Pa.Super. 1986). This is so even where the trial court has not deemed
the issues waived. See Metzger, 534 A.2d at 1058 & n.1; Sipowicz, 517
A.2d at 963; but see In re J.W., 578 A.2d 952, 956 (Pa.Super. 1990)
(declining to find waiver on the basis of untimely exceptions in parental rights
termination case where claims would merely be postponed until collateral
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ineffective assistance of counsel case, which would prevent sense of
permanency for four children at issue).
Here, Father filed three timely exceptions, pro se: (1) Father asserted
that he had a medical evaluation scheduled; (2) Father asserted that Mother
could perform sedentary work; and (3) Father contested the valuation of
mortgage payments. The first of these does not qualify as an exception, as it
does not dispute any part of the Master’s Report and Recommendation.
Regarding the second and third issues, Father has not set forth argument on
the merits of these claims in his appellate brief. Clearly, Father does not seek
review of his timely-filed exceptions. Rather, Father presents argument
related to the untimely exceptions filed by counsel four days after the deadline
imposed by the Rule. As Father failed to comply with the Rule, we are
constrained to conclude that his exceptions are waived. See Metzger, 534
A.2d at 1058; Sipowicz, 517 A.2d at 963.
However, were the issues not waived, they would merit no relief.11 First,
Father challenges the Master’s finding that he was not disabled, as Father
testified that he had no income and no earning capacity due to disability, and
his testimony was allegedly uncontradicted. Father’s claim fails, as the Master
only found that Father had not presented sufficient proof that a disability
caused his reduction in income. See Laws v. Laws, 758 A.2d 1226, 1229
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11In reviewing an order imposing support, we examine whether there is clear
and convincing evidence that the trial court abused its discretion. Capuano,
823 A.2d at 999.
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(Pa.Super. 2000) (confirming finding that appellant voluntarily reduced her
income where she did not demonstrate she was unable to work full time rather
than part time). Father was unable to provide a physician’s verification of
disability, and the Social Security Administration had denied Father’s disability
claim.
Second, Father argues that the earning capacity of $17,000 assigned by
the Master was invalid, not only because the Master ignored the evidence that
Father had no earning capacity due to disability, but also because the Master
based that number upon the earning capacity assigned to Father in the 2015
support action without making her own investigation into Father’s age,
training, or history of employment under Pa.R.C.P. 1910.16-2(d)(4). This
claim is without merit. The Master did not base her calculation on the findings
of the conference officer in the 2015 support action; rather, the Master
sustained the earning capacity found by the conference officer, not three
months earlier, based on Father’s 2014 federal tax income return and the
range of annual incomes reflected in Father’s Social Security earning
statements from 2008 and 2012. This was not an abuse of discretion.
Third, Father complains that the court erred in finding that he willfully
reduced his income, when Father had testified that his disability caused him
to cease all work after his sons stopped assisting him in 2014. This claim fails,
as there was sufficient evidence that Father had voluntarily reduced his
income. Father was unable to present medical evidence to substantiate his
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disability and had made no effort to find any form of employment. Laws, 758
A.2d at 1229.
Finally, Father contends that the court abused its discretion in refusing
to consider Father’s disability statements provided with his Motion to Suspend
as after-discovered evidence. This was not an abuse of discretion. The trial
court concluded that the evidence had not been presented to the Master, or
even to the court within the period for filing exceptions. The court considered
that the Rules impose deadlines in order to ensure the immediate and timely
resolution of support matters. Moreover, Fathers disability statements cannot
be considered “after-discovered evidence,” as they could have been obtained
through the exercise of reasonable diligence. See League of Women Voters
of Pennsylvania v. Commonwealth, 179 A.3d 1080, 1087 (Pa. 2018). The
court was correct not to alter the Master’s Report and Recommendations on
the basis of the new evidence, and to direct Father to instead file a petition
for modification of support.
Having found no basis on which to grant Father relief, we affirm the
order of the trial court insofar as it relates to child support. As explained
above, we quash Father’s appeal from the portion of the trial court’s order
relating to spousal support. See Hrinkevich v. Hrinkevich, 676 A.2d 237,
242 (Pa.Super. 1996) (quashing in part and affirming in part).
Order affirmed in part (as it pertains to child support). Appeal quashed
as interlocutory (as it relates to spousal support).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/05/2019
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