Simon, J. v. McCusker, E. ( 2020 )

J-S71018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACQUELINE SIMON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD MCCUSKER :
:
Appellant : No. 2125 EDA 2019
Appeal from the Order Entered June 18, 2019
In the Court of Common Pleas of Bucks County Domestic Relations at
No(s): 2013DR01247,
Pacses 234114054
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 14, 2020
Edward McCusker (Father) appeals pro se from the child support order
addressing arrearages owed by Father to Jacqueline Simon (Mother). Upon
review, we affirm.
The trial court summarized the factual and procedural background as
follows:
Mother filed a complaint for support on June 21, 2013.
On August 15, 2013, Father was ordered to pay Mother $1500.00
for the support of their two minor children.
Thereafter, due to a criminal conviction, Father was incarcerated
for approximately four and a half years, during which time the
Support Order was suspended effective December 30, 2014. He
was incarcerated from May of 2014 until his release in September
of 2018. (N.T., 6/18/19, p. 9).
The parties entered into a Property Settlement Agreement dated
September 12, 2016, in regards to their divorce, which was
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officially docketed on September 30, 2016. This was incorporated
as part of the final Decree in Divorce on March 20, 2017.
On February 6, 2019, by Order of this Court, the Honorable James
M. McMaster, determined the non-financial obligation order,
effective December 30, 2014, is to be reinstated as a charging
support obligation through PACSES. Additionally, the order shall
terminate and be arrears only, effective November 14, 2016 due
to older child J.’s emancipation.
On March 8, 2019, this non-support matter was continued
generally giving Father sixty days (60) to file a Petition for
Modification.
On April 5, 2019, Father filed a “Petition for
Modification/Termination of an Existing Support Order.” Within
his Pro Se petition, Father alleged that Mother owed him money
[and] claimed that “she has lived in our jointly owned home
without making a single payment for over 9 years.” By the date
of the hearing, Father no longer raised this argument.
On June 18, 2019, a hearing was held before the Honorable Leslie
Gorbey, to address Father’s repayment of arrearage, the amount
of arrearage and his obligation to pay said arrearage. The current
arrears balance is $39,075.69. There have been no payments
since the order was reinstated.
Following said hearing, the Court so ordered on the same date the
following: “NFOB [nonfinancial obligation] order to reinstate and
all arrears/fees previously removed from PACSES are to be
reinstated. After the Hearing this date, the order that had been
charging $1500.00 per month for two children is to be modified
retroactively and arrears balance adjusted as follows: Due to the
emancipation of child J[T.], effective 8/1/15, child support reduces
to $979.00 per month for the remaining child. Order then
terminates, effective 11/14/16 due to the emancipation of child,
J[A.]. Arrears/fees to be payable at $1500.00 per month until the
balance has been paid in full. Case then to close.” (Trial Court
Order, 6/18/19).
On July 16, 2019, Father filed, Pro Se, a timely Notice of Appeal
from the Support Order entered on June 18, 2019.
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On July 19, 2019 Father filed, Pro Se, his Concise Statement of
Matters Complained of on Appeal.
Trial Court Opinion, 8/30/19, at 1-3.
At the outset, we recognize our standard of review:
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. 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.
Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations omitted)
(emphasis added).
On appeal, Father states his issues, verbatim, as follows:
A. Did the trial court abuse its discretion and/or err as a matter of
law and fact in entering the order reinstating the arrearages when
[Mother] released all and any debts owed to her as stated in the
Marital Settlement Agreement.
B. Did the Court err when they did not allow a “stay” in order for
me to produce my business P&L statements?
C. Did the Court abuse their discretion when they did not consider
the intent of the Settlement Agreement?
D. Did the Court err when they ruled that I owed ANY arrearages
when it was precisely written into the settlement agreement that
[Mother] released me of ANY and ALL debts owed to her?
E. Did the Court abuse their discretion by interfering with a
settlement agreement which mutually released both parties of
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ANY and ALL debt when it ordered I pay [Mother] monies she
released me from?
F. Did the Court err on its interpretation of Pa. law regarding
Settlement Agreements and their effect on support orders?
Father’s Brief at 3-5 (suggested answers omitted).
Five of Father’s six issues (A, C, D, E and F) are repetitive, and at their
essence “center around the parties’ property settlement agreement of
September 12, 2016, and Father’s assertion that it releases him from any child
support obligation, including specifically the repayment of arrearage.” Trial
Court Opinion, 8/30/19, at 4. This argument is completely unavailing.
First, Father has conceded that the settlement agreement did not
address child support. See N.T., 6/18/19, at 7. Further, it is well settled that
the duty to support one’s children is absolute. See Depp v. Holland, 636
A.2d 204, 206 (Pa. Super. 1994). Even if Mother had agreed in the marital
settlement agreement to release Father from his child support obligation —
including arrears — our Supreme Court has expressly stated that parents
“have no power to bargain away the rights of their children.” Knorr v. Knorr,
588 A.2d 503, 505 (Pa. 1991).
The trial court correctly explained:
Father’s reference to [the] property settlement agreement
in divorce, obfuscates the issues by mixing concepts of child
support obligations with marital debt. For purposes of his
argument he treats these as identical.
Pennsylvania law, however, draws a distinction between the
legal obligation to provide support for one’s children, and the
separate rights and responsibilities for addressing valid marital
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debt. The property settlement agreement deals only specifically
with those issues necessary to finalize the parties’ divorce.
***
In this instance, as the record clearly demonstrates, and as
uncontested by Father, a valid order of [child] support was
originally entered in 2013. The order rendered Father an obligor.
Irrespective of his failure to adhere, the order obligated Father as
liable for child support payments.
Trial Court Opinion at 5.
For the above reasons, we find no merit to Father’s argument that the
trial court erred in finding that Father and Mother did not and could not
“bargain away amounts accumulated for child support.” See, e.g., N.T.,
6/18/19, at 7.
In his remaining issue, “B”, Father states that the court erred by failing
to “allow a ‘stay’ in order for [Father] to produce [his] business P&L
statements,” because the statements “would prove” Father does “not have
the ability to pay $1500 per month.” Father’s Brief at 3. Again, Father’s issue
lacks merit. Both the trial court and Mother counter that Father never
requested a stay, and the record supports their contentions. See Trial Court
Opinion, 6/18/19, at 10; Mother’s Brief at 17.
Furthermore, the trial court emphasized that the parties were given “due
notice of the hearing of June 18, 2019.” N.T., 6/18/19, at 9. The trial court
explained:
The support conference in this matter was scheduled and held on
May 7, 2019. For both the conference and the hearing, the parties
received the standard written Order as set forth in Rule 1910.27.
As such, they were directed to provide, among other items, a true
copy of their most recent tax return and the “Income Statement
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and the appropriate Expense Statement” (enclosed with order) as
required by Rule 1910.11(c). Father failed to provide the required
information at either conference or hearing. Thus, Father, who
filed the petition and sought no advance continuance, presumably
had opportunity to gather whatever documents he believed to be
necessary in support of his petition. Yet, when asked at the
hearing whether he had brought stock certificates for his
company, under cross by Mother’s counsel, Father testified as
follows:
Q. But, sir, on this brochure, as you’ve said, this is a
previous company. Whose name is on this brochure,
front page?
A. Well, it's me, because I took over in 2018.
Q. Okay.
A. That’s me. I was president in 2018. It’s a new
company.
Q. But I believe you said the numbers belong to the
old company, but yet –
A. The ones you’re referencing in 2015, 2016, and
‘17, I’ve told you, that’s previous to me.
Q. But it is safe to assume that since your name is
on this company, on the front page, as the CEO and
president, that this is your company?
A. No, sir.
Q. It’s not safe to assume?
A. I’m an officer. There’s plenty of presidents that
don’t own a company. I own 19 percent of the
company. I swear. I’ll supply the certificate to you.
Q. You haven’t brought any of the certificates?
A. I didn't know what to bring[.]
(N.T., 06/18/19, pp. 22-23).
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The record, including this sequence of testimony, is bereft
of any stay request from Father. Father was represented by
counsel at said hearing. However, during his testimony it became
apparent Father failed to bring paperwork with him which he says
would have supported his own petition. His assertion that he did
not know what to bring is insufficient reason to excuse his burden.
No specific assertion was offered to suggest Father was unable to
access or produce documents for his own company at the hearing.
In fact, testimony was presented by Mother casting doubt on
Father’s self-serving assertions. Emails from Father were
introduced wherein he claimed to be actually a majority
shareholder and CEO of this company. (N.T., 06/18/19, pp. 50-
51). At the very least, Father is a business owner and shareholder
in a company which has a contract with Dick’s Sporting Goods
Company. (N.T., 06/18/19, pp. 44-45).
Trial Court Opinion, 6/18/19, at 9-10.
Upon review, the record compel our finding that the trial court did not
abuse its discretion court in concluding that Father failed to present
“compelling evidence” of an inability to pay, and ordering Father to pay child
support arrearages. See id. at 11.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/20
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