A.S.C. v. N.B.C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.S.C., NOW A.S.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
N.B.C. :
:
Appellant : No. 747 WDA 2018
:
Appeal from the Order Entered May 17, 2018
In the Court of Common Pleas of Indiana County
Civil Division at No(s): 10486 CD 2012
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 28, 2019
N.B.C. (“Father”) appeals from the order awarding child support to be
paid to A.S.C., now A.S.L. (Mother), his former spouse.1 Father challenges the
jurisdiction of the trial court, the applicability of Pa.R.C.P. 1910.19(g)(1) to
the treatment of overpayments in this case, and the accuracy of the
calculation of the amount of support. We affirm.
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 Retired Senior Judge assigned to the Superior Court.
1Although referred to in the briefs as the April 17 order, the order was filed
and date stamped on May 17, 2018. We have amended the caption
accordingly. To avoid confusion, we will continue to refer to the order as the
April 17 order.
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The background of this case is somewhat complicated, with multiple
actions occurring in Pennsylvania as well as related legal actions in Virginia
and California.2 We derive our factual and procedural history from the trial
court opinions and our independent review of the certified record. See 1925(a)
Opinion, 7/06/18, 1-2; see also Memorandum & Order of Court, 8/31/17, at
2-8.
Father and Mother were married in North Carolina. They both serve as
officers in the United States Marine Corps. Mother was a resident of
Pennsylvania before she joined the Marines. Because of their military service,
they are subject to frequent transfers in the course of their assigned duties.
This case is integrally related to the immediately prior case for child
support. In that prior case, Mother appealed the order of August 31, 2017,
which modified a previous support order. This Court affirmed that order on
July 16, 2018. See A.S.C. v. N.B.C., No. 1427 WDA 2017, 2018 WL 3423742,
at *1–2 (Pa. Super. filed July 16, 2018) (unpublished memorandum).
The trial court in the prior case provided the following factual and
procedural history:
The parties were married in May of 2006 and divorced on
June 25, 2012. The March 22, 2012 Marital Property Settlement
Agreement was incorporated into the final Divorce Decree and
Order filed in the Court of Common Pleas of Indiana County,
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2 The respective judges in California and Pennsylvania decided that the
custody action would stay with the courts of California, while the issue of child
support would remain in Pennsylvania. See Order of Court, 5/15/15; see
also Opinion in Support of Order Pursuant to Rule 1925(a), 11/22/17, at 2.
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Pennsylvania. The parties have two children, [A.C.], age 10, born
June [ ] 2007, and [D.C.], age 7, born July [ ] 2010. The Marital
Property Settlement Agreement provided that [Father] would pay
child support to [Mother] in the amount of $2,000.00 by the 15th
of every month. In addition to the Marital Property Settlement
Agreement, the parties entered into a Consent Custody
Agreement on March 22, 2012, which granted the parties shared
legal custody with [Mother] receiving primary physical custody
and [Father] receiving partial physical custody.
Subsequent to the divorce, the parties, both Officers in the
United States Military, moved to the state of California. Both
parties have since remarried, seemingly causing the parties[’]
previously amicable post-divorce relationship to unravel. Then, in
the spring of 2015, [Mother] made a military transfer to Bahrain.
Upon learning of [Mother’s] military transfer, [Father] initiated a
custody action in California. Within the course of said lengthy
custody action, the parties began to communicate and negotiate
via multiple platforms since [Mother] was stationed overseas. The
parties exchanged several offers and counteroffers while
negotiating terms and eventually reached an agreement regarding
each party’s custody rights to children. The agreement provided
that [Mother] would receive sole legal and physical custody of the
minor children, that [Father] would receive specific visitations
times, and that the children were allowed to relocate with
[Mother] whenever it becomes necessary for [Mother’s]
employment even without [Father’s] approval. Both parties signed
this agreement on March 30, 2016[,] and the agreement was filed
on April 29, 2016. It is important to note that this agreement
made no mention of child support payments.
The parties’ stories regarding the formation and terms of
said agreement differ and have led to the present matter. [Father]
claims that he signed the March 30, 2016 agreement after
negotiating a modification in child support payments with
[Mother]. Citing to text message communications and emails
between the parties, [Father] avers that the parties had an
agreement to modify the child support payments from the $2000
per month contained in the Marital Property Settlement
Agreement to $500 per month from May 1, 2016 through April 30,
2017; then $1,000 per month from May 1, 2017 through April 30,
2018; and lastly to $1,500 per month from May 1, 2018 through
July 22, 2028. [Father] further avers that the parties did not
formalize the child support portion of their agreement because
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Pennsylvania, not California, maintained jurisdiction over the child
support payments. Moreover, [Father] cites additional messages
indicating that [Mother] was to draft the child support provision in
another document which the parties would sign and notarize and
that [Mother] would file in Pennsylvania. It is [Father’s] argument
that he signed the terms of the California agreement after the
parties agreed to the child support modification terms, and that
he relied upon [Mother] to file the second part of their agreement
in Pennsylvania. To this point, [Mother] has not filed such a
document in Pennsylvania.
[Mother] claims that no such agreement to modify the terms
of child support was ever reached. She avers that the parties
reached the agreement in exchange for [Mother’s] not pursuing
sanctions and attorney’s fees against [Father] related to their
California custody case. Moreover, [Mother] claims that she has
not had the Apple ID listed in [Father’s] exhibits since 2012/2013,
and that she closed her former Gmail account in the spring of
2015. As such, she claims that nothing would have been sent to
[Father] after 2013 using the Apple ID listed in [Father’s] exhibits.
Since the parties entered into their California agreement,
[Mother] left California and moved with the children to Virginia.
[Father], operating under the belief that the parties reached an
agreement modifying his child support obligation, began making
modified child support payments to [Mother]. [Mother] then
alleged that [Father] was delinquent in his support payments,
leading to [Father’s] receiving a letter from the Commonwealth of
Virginia, Department of Social Services, Division of Child Support
Enforcement, informing him that [Mother] had opened a case
against him. Beginning in late 2016, even after meeting with the
case manager in Virginia and consulting an attorney in Virginia,
[Father’s] wages were garnished. These actions led to the filing of
the Petition under consideration herein.
Id. at *1–2 (citing Trial Court Memorandum & Order, 8/31/17, at 2-4)
(brackets in original).
After Mother filed for child support in Pennsylvania, Father filed a
petition for Special Relief/Modification of Marital Agreement. On August 31,
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2017, the Honorable Joseph A. Nickleach issued a Memorandum and Order
granting Father’s petition.
Judge Nickleach’s decision essentially accepted Father’s representation,
confirmed by an extensive collection of email correspondence, that he and
Mother had agreed between themselves (without benefit of counsel) that he
would relinquish his claim for custody of the children (filed after Mother
relocated to Virginia), while Mother agreed to accept a near-term reduction in
support payments and the extension of the term of payments until the
majority of the younger child and other incidental considerations. Mother, as
already noted, disagreed.
The order accordingly set forth Father’s child support obligations in a
series of reduced installments.3 Mother timely appealed. On appeal, this Court
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3 We reproduce the order of August 31, 2017 verbatim:
ORDER OF COURT
AND NOW, this 31st day of August, 2017, this matter having come
before the Court on a Petition for Special Relief/Modification of
Marital Agreement filed by the Defendant, and after reviewing the
briefs submitted by both parties and for the reasons set forth in
the Memorandum herein, it is ORDERED, ADJUDGED, and
DECREED as follows:
1. The Defendant's Petition for Special Relief/Modification of
Marital Agreement is hereby GRANTED.
2. The Defendant is ordered to pay Child Support subject to
the following terms:
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affirmed. See A.S.C. v. N.B.C., No. 1427 WDA 2017, 2018 WL 3423742, at
*1–2 (Pa. Super. filed July 16, 2018).
During the appeal, Father had ceased support payments, assuming that
his overpayments in the Virginia wage garnishment offset the amounts
currently due in Pennsylvania. Mother filed a complaint for support with the
Indiana County Domestic Relations Section on September 12, 2017. On
January 3, 2018, Mother filed a motion for contempt, asserting that Father
had violated the order of August 31, 2017 by failure to pay child support since
September 7, 2017.
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a. Defendant’s Child Support obligation to Plaintiff shall be
calculated as $500.00 per month from May 1, 2016 through April
30, 2017. Any amount paid exceeding said payment shall be
credited to future support obligations.
b. Defendant’s Child Support obligation to Plaintiff shall be
calculated as $1,000.00 per month from May 1, 2017 until the
date hereon. Any amount paid exceeding said payment shall be
credited to future support obligations.
c. Defendant’s Child Support obligation to Plaintiff shall be
calculated as $1,000.00 per month from the date hereon until
April 30, 2018.
d. The Defendant’s Child Support obligation to Plaintiff shall
be calculated as $1,500.00 from May 1, 2018 through July 22,
2028.
e. Payments shall be paid by the 15th of every month.
Order of Court, 8/31/17.
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Father filed a motion to dismiss Mother’s motion or to stay the
proceedings pending appeal. By order of January 19, 2018, the Honorable
Thomas M. Bianco, Court of Common Pleas of Indiana County, denied Father’s
motion to dismiss, but granted his petition to stay the complaint for child
support. See Order of Court, 1/19/18.4 In a separate order, Judge Bianco
scheduled a hearing for April 13, 2018.
President Judge William J. Martin presided over the April 13 hearing on
the motion. See N.T., Record of Proceedings, 4/13/18. Following the hearing,
the trial court filed an order for child support.5 See Order of Court dated April
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4 Father concedes that the petition to stay/dismiss and the answer to that
petition are not contained in the docket. See Father’s Brief, at 10 n.1.
However, Judge Bianco’s January 19, 2018 order is entered on the docket.
See Order 1/19/18 (dated January 12, 2018). Furthermore, at the hearing,
President Judge Martin acknowledged on the record that the predecessor
judge (Judge Bianco) granted the stay “as to the filing dates of September 12,
2017” (referring to Mother’s complaint for support through the Indiana County
Domestic Relations Section, under a separate docket number). N.T. Record of
Proceedings, 4/13/18, at 3.
5 The full text of the order of April 17, 2018 follows:
AND NOW, 17th day of April 2018, pursuant to this Court’s Order of
April 13, 2018, the [c]ourt makes the following Findings and Order.
1. Upon remand to the Indiana County Domestic
Relations Office, the Defendant’s monthly child support
obligation is $1,500.00 effective May 1, 2018 pursuant to
the August 31, 2017 Order of the Honorable Joseph A.
Nickleach.
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17, 2018. See Rule 1925(a) Opinion, 7/06/18, at 1 n.1. At the time, the
appeal of the August 31, 2017 order was still pending in this Court.
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2. Based upon the required child support payments of
the Order of August 31. 2017, the Defendant is in arrears in
the amount of $3,448.31 as of August 31, 2017.
3. Based upon the prior wage attachment in the
Commonwealth of Virginia, based on the Order of August
31, 2017, the Defendant has overpaid on his child support
obligation in the amount of $16,051.69. The overpayment
is being reduced by $1,000 a month for the last 7 months.
4. The Defendant is due a net credit of $9,066.34
through April 2018 toward the child support obligation
established by the August 31, 2017 Order.
5. After adjustment pursuant to Pa.R.C.P. No 1910.19
(g) (1), the Defendant’s monthly child support obligation
pursuant to the Order of August 31, 2017 is $1,426.29.
($9,066.34 divided by 123 months, which is the number of
months until the last child emancipates = $73.71 from
$1,500)[.]
6. The payment for April 2018 shall be paid on or
before April 30, 2018.
7. All monthly payments after April 2018 shall be paid
so that the support obligation is received on or before the
15th day of each month.
8. Payments shall be paid by the Defendant directly to
the Plaintiff. It is the responsibility of each party to keep the
other informed or any change of address.
Order, 4/17/18.
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Notably, President Judge Martin confirmed that Judge Nickleach’s order
of August 31, 2017 was the controlling order and continued to be in full force
and effect. See N.T. Proceedings, 4/13/18, at 3. The court denied Mother’s
motion for contempt. However, it did find that Father was in arrears on child
support by $3,448.31. Nevertheless, based on the wage garnishment in
Virginia, the court also found that Father had overpaid by $16,051.69.
Therefore, the court concluded, he had overpaid a net amount of $9,066.34.
Father’s timely appeal followed.6
Father raises three questions for our review on appeal. We reproduce
them here verbatim except for the bracketed material:
1. Did the trial court have jurisdiction to change or enforce the
Appellant Father’s support obligation under the August 31, 2017,
Order of Judge Joseph Nickleach, when said order was on appeal
and jurisdiction was vested in the Superior Court?
2. Did the trial court [err] in the application of Pa.R.C.P.
1910.19(g)(1), a domestic relations rule, to this case when the
Appellant Father’s support obligation was created by a contractual
marriage settlement agreement?
3. Arguendo, if it is determined that the trial court did not [err] in
applying Pa.R.C.P. 1910.19 (g)(1) to this child support matter, did
the trial court error in its calculations and determination of the
actual amount of support to be paid by the Appellant Father?
Father’s Brief, at 5.
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6Father timely filed a concise statement of errors complained of on appeal,
on June 12, 2018. The trial court filed a Rule 1925(a) opinion, on July 6,
2018. See Pa.R.A.P. 1925.
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Father’s first issue challenges the jurisdiction of the trial court. Our
standard of review for a challenge to jurisdiction is well-settled.
“Subject matter jurisdiction speaks to the competency of a court to hear
and adjudicate the type of controversy presented. Jurisdiction is purely a
question of law; the appellate standard of review is de novo and the scope of
review is plenary.” Commonwealth v. Elia, 83 A.3d 254, 265 (Pa. Super.
2013) (citations omitted).
A court’s decision to exercise or decline jurisdiction is subject to
an abuse of discretion standard of review and will not be disturbed
absent an abuse of that discretion. Under Pennsylvania law, an
abuse of discretion occurs when the court has overridden or
misapplied the law, when its judgment is manifestly unreasonable,
or when there is insufficient evidence of record to support the
court’s findings. An abuse of discretion requires clear and
convincing evidence that the trial court misapplied the law or
failed to follow proper legal procedures.
Lucas v. Lucas, 882 A.2d 523, 527 (Pa. Super. 2005) (citation omitted).
Here, Father mainly argues that because an appeal was pending, the
trial court lacked jurisdiction to consider Mother’s motion. See Father’s Brief,
at 9-11. Father acknowledges that the trial court may enforce an order under
Pa.R.A.P. 1701(b)(2).7 See id. at 9-10. Nevertheless, he maintains that the
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7 Section 1701 provides, in relevant part:
(b) Authority of a trial court or agency after appeal.
After an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may:
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effect of the order was superseded by his petition to stay. See id. at 11. We
disagree.
[T]rial court[s] possess inherent powers to enforce their orders
and decrees by imposing sanctions for failure to comply with their
orders. This power is retained even after an appeal is filed, absent
a supersedeas. See Pa.R.A.P. 1701(b)(2). Our review of the
record in the instant case shows that no supersedeas had been
granted.
Travitzky v. Travitzky, 534 A.2d 1081, 1084 n.3 (Pa. Super. 1987) (case
citation omitted).8
Preliminarily, we note that Father’s argument contradicts the express
assertion of the trial court that it was only enforcing Judge Nickleach’s order.
See N.T. Record of Proceedings. 4/13/18, at 4, 6; see also 1925(a) opinion,
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(1) Take such action as may be necessary to preserve the
status quo, correct formal errors in papers relating to the matter,
cause the record to be transcribed, approved, filed and
transmitted, grant leave to appeal in forma pauperis, grant
supersedeas, and take other action permitted or required by these
rules or otherwise ancillary to the appeal or petition for review
proceeding.
(2) Enforce any order entered in the matter, unless
the effect of the order has been superseded as prescribed
in this chapter.
Pa.R.A.P. 1701 (b)(1-2) (second emphasis added).
8 We note that Father’s citation to Travitsky gratuitously adds “or stay” after
“supersedeas.” See Father’s Brief, at 10. “Or stay” supports Father’s chief
argument (that stay granted to him automatically operated as supersedeas
for purpose of rule). However, “or stay” is not contained in the original
Travitsky text. See Travitzky, 534 A.2d at 1084 n.3.
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7/6/18, at unnumbered page 2. Father acknowledges this assertion, but
disputes it. See Father’s Brief, at 11. However, Father fails to develop a
persuasive argument in support of his position.
Instead, in a single paragraph, Father asserts that he made substantial
overpayments because the Virginia Department of Child Support Enforcement
garnished his wages. See id. Even assuming this to be true, Father fails to
relate the factual assertion of overpayment to his legal claim that his petition
to stay (more precisely, the grant of his petition to stay) should be accepted
as superseding the trial court’s order. On independent review, we conclude
the assertion lacks merit.
Father offers no controlling authority to support the claim that his
petition for a stay is a legally recognized equivalent of a supersedeas which
would prevent the trial court from issuing the order on appeal here.
To the contrary, the order granting the stay expressly noted that it was
“in place until further Order of Court.” Order, 1/19/18. Father offers no
argument, and we discern no independent basis, to dispute that President
Judge Martin’s ruling at the hearing on April 13, 2018, and the confirming
order on April 17, which is the basis of this appeal, constituted a further order
of the court.
We recognize, as did the trial court, Father’s desire to recoup any
overpayments as soon as possible. See N.T. Proceedings, 4/13/18, at 6-7.
However, it was well within the discretion of the trial court to decide that the
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best interests of the children were better served by continuing support for
them and offsetting the overpayments on a more gradual basis, rather than
to let Father reduce his support payments to nothing until the overpayment is
exhausted. We discern no abuse of discretion in the trial court’s action.
Father’s first issue does not merit relief.
In his second issue, Father asserts that the trial court erred in the
application of Pennsylvania Rule of Civil Procedure 1910.19(g)(1) to this case.
See Father’s Brief, at 5. This Rule provides that overpayments of child support
should be recouped through an appropriate reduction, normally 20%, in
ordered payments until the overpayment is retired. Father maintains that
because the provision for child support was originally included in the parties’
marital settlement agreement, the trial court erred in applying Rule
1910.19(g)(1) to the issue of child support here. See id. at 12-13. We
disagree.
Our standard of review is well-settled.
Appellate review of support matters is governed by an abuse of
discretion standard. 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. An abuse of discretion
is [n]ot merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence of record. The
principal goal in child support matters is to serve the best interests
of the children through the provision of reasonable expenses.
R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013) (citations and internal
quotation marks omitted). “This is a limited role and, absent a clear abuse
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of discretion, the appellate court will defer to the order of the trial
court. A finding of abuse is not lightly made but only upon a showing of clear
and convincing evidence.” Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003)
(citations and internal quotation marks omitted) (emphasis added). “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.” R.C. v. J.S.,
957 A.2d 759, 761–62 (Pa. Super. 2008) (citations omitted).
Here, bearing in mind the limited role we have in reviewing for an abuse
of discretion, we conclude that there is no merit to Father’s claim. His
assumption that there is some preclusive effect to application of Rule
1910.19(g)(1) based on his classification of it as “a domestic relations section
rule” enjoys neither the support of controlling authority, nor confirmation in
the rule itself.9 Father fails to develop an argument for his claim, or to support
it by citation to pertinent authority.10 Father’s issue is waived.
Furthermore, Father’s novel argument overlooks the reality that even if
he and Mother had omitted a child support provision in their marital settlement
agreement, there would still have been an absolute duty to provide support
for the children. See R.C. v. J.S., 957 A.2d at 761–62.
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9 The Domestic Relations Code is at Title 23, 23 Pa.C.S.A. §§ 101-8415.
10The rule at issue is part of the section in the Rules of Civil Procedure that
addresses “Actions for Support.” See Pa.R.C.P. 1910.1 - 1910.50.
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Moreover, the trial court merely used the options provided in Rule
1910.19(g)(1) as a guide for the order. See 1925(a) Opinion, 7/6/18, at
unnumbered page 4. Father offers no explanation why the trial court would
be prevented from using the rule as a guide. We discern no abuse of discretion
in this choice. Father’s second issue does not merit relief.
In Father’s final issue, he asserts that the trial court miscalculated the
amount of support. See Father’s Brief, at 5. Father argues, without
confirming evidence, that the trial court relied on unofficial information,
(through Indiana County Domestic Relations), some of it merely oral, from
the Virginia Department of Child Support Enforcement. Much of the narrative,
relying on the assertions of third parties, is inadmissible hearsay.11
In any event, Father concedes that counsel did not provide corrective
information to the trial court at the time of the hearing, or file a timely motion
for reconsideration. See Father’s Brief, at 15. Nevertheless, he maintains that
he filed a later motion for reconsideration, “which was promptly denied by the
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11 “Hearsay” means a statement that
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
Pa.R.E. 801(c)(1), (2).
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court.” Id. Father cites to the Reproduced Record for support. See id. citing
RR at 42a-48a.
As already noted, our standard of review in support matters is abuse of
discretion. See R.K.J., 77 A.3d at 37. “The standard of review with respect to
the amount of a child support award also is largely within the sound discretion
of the trial court.” Miller v. Miller, 783 A.2d 832, 835 (Pa. Super. 2001)
(emphasis added).
First, in this appeal, it bears noting that the trial court denies any notice
that the amounts supplied to it were incorrect. See 1925(a) Opinion, 7/6/18,
at unnumbered pages 3-4. The court also confirms that “Counsel failed to
present this issue to the [c]ourt by way of a motion to Reconsider or for
Modification.” Id. at unpaginated page 4. The docket and the certified record
support the trial court’s statements.
The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. To ensure that
an appellate court has the necessary records, the Pennsylvania
Rules of Appellate Procedure provide for the transmission of a
certified record from the trial court to the appellate court. The law
of Pennsylvania is well settled that matters which are not of record
cannot be considered on appeal. Thus, an appellate court is limited
to considering only the materials in the certified record when
resolving an issue. In this regard, our law is the same in both the
civil and criminal context because, under the Pennsylvania Rules
of Appellate Procedure, any document which is not part of the
officially certified record is deemed non-existent—a deficiency
which cannot be remedied merely by including copies of
the missing documents in a brief or in the reproduced
record. The emphasis on the certified record is necessary
because, unless the trial court certifies a document as part of the
official record, the appellate judiciary has no way of knowing
whether that piece of evidence was duly presented to the trial
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court or whether it was produced for the first time on appeal and
improperly inserted into the reproduced record. Simply put, if a
document is not in the certified record, the Superior Court may
not consider it.
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete certified
record. This requirement is not a mere “technicality” nor is this a
question of whether we are empowered to complain sua sponte of
lacunae in the record. In the absence of an adequate certified
record, there is no support for an appellant’s arguments and, thus,
there is no basis on which relief could be granted.
Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super. 2006) (citations
omitted) (emphasis added).
Father’s claim of miscalculation is waived. Moreover, it would not merit
relief. Failure to make a timely motion to the trial court deprived the court of
an opportunity to review and correct any computational errors. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2019
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