Morgan, S. v. Morgan, D. , 117 A.3d 757 ( 2015 )

J-A03021-15
2015 Pa. Super. 127
SHERI A. MORGAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL T. MORGAN
Appellant No. 1421 MDA 2014
Appeal from the Order dated July 21, 2014
In the Court of Common Pleas of the 39th Judicial District
Franklin County Branch
Civil Division at No: 2009-557
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
OPINION BY STABILE, J.: FILED MAY 28, 2015
Appellant Daniel T. Morgan1 (“Father”) appeals from the July 21, 2014
order of the Court of Common Pleas of the 39th Judicial District, Franklin
County Branch (“trial court”), which denied Father’s motion to strike the trial
court’s child support enforcement orders dated November 5, 2013,
December 4, 2013 and June 4, 2014. Father moved to the strike the orders
because he believed the trial court lacked subject matter jurisdiction to order
child support in connection with C.M., his un-emancipated and severely
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
On September 24, 2014, we issued a per curiam order directing the
parties’ names be redacted in the caption to reflect only their initials to
protect the confidentiality of minors. This appeal, however, does not involve
any minors. Accordingly, we vacate the September 24, 2014 order.
J-A03021-15
autistic adult son with Sheri A. Morgan (“Mother”). Because we have
resolved the central issue of subject matter jurisdiction in a prior appeal, we
affirm the trial court’s order and remand this matter to the court for
calculation of counsel fees.
The facts and procedural history of this case are undisputed. As
summarized by a prior panel of this Court:
In 2003, the parties were divorced in Maryland. In
conjunction with the divorce, the parties entered into a property
settlement agreement (“PSA”), which provided, in relevant part,
that Father would pay Mother alimony and child support. The
PSA provided that Father’s alimony obligation would remain fixed
until July 1, 2007, after which either party could seek to modify
the amount of the obligation. The PSA was incorporated into the
divorce decree.
On May 3, 2007, Father registered the Maryland divorce
decree and PSA in Franklin County. Almost immediately
thereafter he filed a petition seeking to reduce his alimony
obligation. In response, Mother filed a petition seeking to
increase Father’s alimony obligation. These filings initiated
approximately four years of proceedings regarding Father’s
alimony obligation, including an appeal to this Court, our remand
to the trial court for further evidentiary proceedings, and then a
subsequent appeal.
In 2011, as the second appeal from the alimony
proceedings was pending before this Court, Mother filed a
support action because Father told her that he was going to
cease paying child support for C.M. As part of the ensuing
support proceedings, Father’s employer submitted income
information to the trial court that revealed that Father had been
lying about his income and submitting falsified documents,
including federal tax returns, to the trial court in connection with
the alimony action.[2] It was later discovered that the tax
____________________________________________
2
We are deeply troubled by Father’s representations about his income. The
record before us suggests Father made statements under oath to conceal
the extent of his income. Thus, it appears an investigation by proper
authorities may be warranted into Father’s conduct during the alimony and
instant support proceedings. We, however, express no opinion on the merit
or potential outcome of any investigation.
-2-
J-A03021-15
returns Father produced in the support action—after his deceit in
connection with the alimony proceedings had been discovered—
were also falsified. The discovery of Father’s fraud on the court
led to a protracted discovery period. As a result, the parties did
not appear before the trial court for a hearing on Mother’s
support petition until July 2012, with a second day of hearings
held in September 2012. The trial court subsequently entered
an order setting Father’s child support obligation and providing
that it would apply retroactively to May 3, 2007 (the date Father
registered the parties’ divorce decree and PSA in Franklin
County) and requiring Father to pay $128,526 of Mother’s
counsel fees. In making the support award, the trial court
assigned Mother an income of $92,500 and rejected Mother’s
claim for an upward deviation of 25% beyond the amount
prescribed by the Child Support Guidelines because of the
minimal custodial time Father has with C.M. On July 11, 2013,[3]
the trial court amended this order to provide, inter alia, that
Mother’s earning capacity should be applied retroactively to May
3, 2007. Father timely appealed and Mother timely filed her
cross-appeal.
Morgan v. Morgan, 99 A.3d 554, 556 (Pa. Super. 2014) (footnotes
omitted), appeals denied, 825 MAL 2014, 826 MAL 2014 (Pa. filed April 2,
2015). In his appeal before the prior panel, Father filed a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, arguing that the trial court
lacked subject matter jurisdiction to enforce the parties’ PSA with respect to
the child support obligation.4 Father also argued that the trial court lacked
____________________________________________
3
The order was dated July 11, 2013, but was not filed until July 12, 2013.
4
As the trial court observed in its 1925(a) opinion, “Father’s [1925(b)
s]tatement consist[ed] of thirty pages of text with no numbered paragraphs
identifying specific issues. Rather, sentences throughout the thirty pages
[were] in bold print that appear[ed] to be assertions of error but [were]
duplicative. Trial Court 1925(a) Opinion, 9/23/13, at 2.
-3-
J-A03021-15
authority to modify child support, because the parties did not request
modification.5
On September 5, 2013, while the parties’ cross appeals were pending
in this Court, Mother filed an “Omnibus Petition to Enforce the July 12, 2013
Order.” Father responded to the petition. On November 5, 2013, the trial
court issued an order, granting in part Mother’s petition. Specifically, the
trial court directed the Domestic Relations Division “to attach the wages of
[Father] in an additional amount of two-thousand dollars ($2,000.00) per
month effective the date of this [o]rder to satisfy the $128,525.81 of
combined attorneys’ fees award.”6 Trial Court Order, 11/5/13.
Because Father was subject to the July 12, 2013 support order, and
because Father received a lump sum bonus of $138,329.04 from his
employer, the trial court issued another order on December 4, 2013
directing the entire net bonus amount, after the required tax withholding, to
be applied to Father’s existing arrears. See Trial Court Order, 12/4/13. The
____________________________________________
5
Father abandoned this argument in his appellate brief before the prior
panel.
6
The record reveals Father did not seek a supersedeas or a stay of the trial
court’s July 12, 2013 order that was on appeal before the prior panel of this
Court and, therefore, the trial court retained authority to enforce the child
support order. See Cruse v. Cruse, 737 A.2d 771, 773 (Pa. Super. 1999),
appeal denied, 753 A.2d 818 (Pa. 2000); see also Travitzky v.
Travitzky, 534 A.2d 1081, 1084 n.3 (Pa. Super. 1987) (holding that, absent
a supersedeas, the trial court has inherent power to enforce its orders even
after an appeal has been taken) (citation omitted).
-4-
J-A03021-15
trial court further directed that “[u]pon receipt of the lump sum, the
Domestic Relations Division shall place said sum on hold for a period of
thirty days pending further audit of the case.” Id.
On December 16, 2013, Father filed a “Motion to Strike Orders Dated
November 5, 2013 and December 4, 2013” (“First Motion”). In support of
his motion, Father principally argued that the November 5, 2013 and
December 4, 2013 orders attaching his income sought to enforce the July
12, 2013 child support order that was invalid, because the trial court lacked
subject matter jurisdiction to modify child support obligations contained in
the PSA. On December 20, 2013, the trial court dismissed the First Motion.
On March 3, 2014, the trial court issued an order with respect to the
audit performed by the Domestic Relations Division. On March 18, 2014,
both parties filed petitions to dispute the audit. Following a hearing, the trial
court, on June 4, 2014, issued an order directing how Father’s bonus would
be disbursed.
On July 7, 2014, Father filed a “Motion to Strike the Orders Dated
November 5, 2013, December 4, 2013 and June 4, 2014 Due to Lack of
Subject Matter Jurisdiction” (“Second Motion”), raising essentially the same
argument he raised in the First Motion. Simply put, Father argued the trial
court lacked subject matter jurisdiction to issue the underlying July 12, 2013
order and, as a result, the related child support orders dated November 5,
2013, December 4, 2013 and June 4, 2014 had to be stricken as void.
-5-
J-A03021-15
On July 22, 2014, the trial court issued an order denying Father’s
Second Motion. In so denying, the trial court noted Father repeatedly asked
the court not to enforce its July 12, 2013 child support order based on lack
of subject matter jurisdiction. The trial court also noted that “[t]he ultimate
issue of whether the [court] has subject matter jurisdiction to modify
[Father’s] child support obligation is currently on appeal before the Superior
Court, and until the Superior Court has ruled on the matter, [the trial court]
will continue to enforce [its] [o]rders in this case.” Trial Court Order,
7/22/14. Because of “the obdurate and duplicative nature of [Father’s]
multiple [m]otions on the issue” of subject matter jurisdiction, the trial court
directed Father to pay Mother $500.00 in attorneys’ fees. Id. Father timely
filed the instant appeal from the denial of the Second Motion.
Thereafter, on August 21, 2014, the prior panel of this Court issued its
decision, addressing, inter alia, Father’s argument on subject matter
jurisdiction. Specifically, the prior panel addressed Father’s argument that
the trial court lacked subject matter jurisdiction to enforce the parties’ PSA
with respect to child support obligations, because the PSA was not merged
into the divorce decree. In so doing, the prior panel concluded the trial
court indeed had jurisdiction to modify Father’s child support obligation
despite the fact that the parties’ PSA was not merged into their divorce
decree. Morgan, 99 A.3d at 557. The prior panel reasoned “[t]he Divorce
Code specifically provides that regardless of whether an agreement between
parties is merged or incorporated into the divorce decree, ‘[a] provision of
-6-
J-A03021-15
an agreement regarding child support, visitation or custody shall be subject
to modification by the court upon a showing of changed circumstances.’” Id.
(citing 23 Pa.C.S.A. § 3105(b)). The prior panel further noted that parties to
a divorce action “have no power . . . to bargain away the rights of their
children.” Id. (citation omitted). Accordingly, the prior panel of this Court
rejected as meritless Father’s jurisdictional challenge.7
The prior panel also observed that, as the appeal before it was
pending, Father filed an Application for Remand, in which he presented the
same argument regarding the trial court’s jurisdiction and posited that
because the trial court lacked jurisdiction to modify his support obligation,
there was no valid order underlying his appeal. Id. at n.5 (record citation
omitted). Because it concluded the trial court had jurisdiction over the
matter, the panel denied Father’s application in its August 21, 2014 decision.
Id.
On September 8, 2014, Father filed his Rule 1925(b) statement in
connection with the instant appeal, arguing that the trial court lacked
subject matter jurisdiction to issue the July 12, 2013 order, because the
parties did not request modification of child support. Father also argued that
____________________________________________
7
On November 13, 2014, Father filed a Petition for Allowance of Appeal in
the Supreme Court presenting three questions for review, namely: whether
a trial court (1) can modify a child support order that is nonexistent, (2) may
modify a contract if no modification is requested, and (3) may modify a
contract without prior notice and opportunity to be heard. As noted above,
the Supreme Court denied Father’s petition on April 2, 2015.
-7-
J-A03021-15
because no request for modification existed, his due process rights were
violated.
On September 24, 2014, the trial court issued its Rule 1925(a)
opinion, addressing the issue of subject matter jurisdiction raised in Father’s
Rule 1925(b) statement. In its Rule 1925(a) opinion, the trial court
observed that the prior panel of this Court had resolved Father’s argument
that the trial court lacked subject matter jurisdiction. See Trial Court
Opinion, 9/24/14, at 3. As a result, the trial court concluded that “the
measures taken by [the trial court] to enforce the modification of the
provision addressing Father’s child support obligation also did not lack
subject matter jurisdiction and were well within [the trial court’s] power and
authority.” Id.
On appeal, Father raises three issues for our review, reproduced here
verbatim:
(1) Can a trial court modify a child support order that is
nonexistent?
(2) Can a trial court modify an agreement to pay child support if
such agreement has been requested by no one?
(3) Does modification of an agreement to pay child support
require notice and an opportunity to be heard?
Father’s Brief at 6-7.
Against this background, we are mindful that:
[o]ur standard of review from the denial of a petition to strike a
judgment is limited to whether the trial court manifestly abused
its discretion or committed an error of law. A petition to strike a
judgment will not be granted unless a fatal defect in the
judgment appears on the fact of the record. Matters outside of
-8-
J-A03021-15
the record will not be considered, and if the record is self-
sustaining, the judgment will not be stricken.
Bell v. Kater, 943 A.2d 293, 295 (Pa. Super. 2008) (citation omitted),
appeal denied, 960 A.2d 454 (Pa. 2009).
Father first argues the trial court lacked subject matter jurisdiction to
modify child support when the record contained no underlying child support
order, but rather a PSA containing child support provisions. See Father’s
Brief at 20. As the trial court observed, and as we have recounted above,
the prior panel of this Court resolved this precise issue in Father’s previous
appeal. Accordingly, the determination of the prior panel on the issue of
subject matter jurisdiction controls the outcome here under the law of the
case doctrine. See Ario v. Reliance Ins. Co., 980 A.2d 588, 597 (Pa.
2009) (explaining that “a court involved in the later phases of a litigated
matter should not reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the matter”). As we
explained earlier, the prior panel of this Court specifically concluded the trial
court had subject matter jurisdiction to modify the child support obligation
regardless of whether the parties’ PSA was merged into the divorce decree,
because the parties had no power to bargain away C.M.’s rights.
We now turn to Father’s second and third arguments, which we
combine for ease of disposition and restate as follows. Father argues the
trial court lacked the authority to modify child support because the parties
here did not request modification and, as a result, his due process was
violated. We, however, need not address this argument, because Father
-9-
J-A03021-15
waived it by failing to raise it before the trial court. 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.”). Although Father raised the issue for the first
time in his Rule 1925(b) statement, we consistently have held that
appellants may not raise issues for the first time in a Rule 1925(b)
statement. See Irwin Union Nat. Bank & Trust Co. v. Famous, 4 A.3d
1099, 1104 (Pa. Super. 2010) (“It is well settled that issues not raised below
cannot be advanced for the first time in a 1925(b) statement or on
appeal.”), appeal denied, 20 A.3d 1212 (Pa. 2011). Moreover, our review
of the record indicates that Father sought to advance his second and third
issues on this appeal, because he either failed to raise them—or abandoned
them—in his previous appeal.8
Having disposed of his issues in this appeal, we cannot ignore Father’s
repeated abuse of our judicial system. Under the Rules of Appellate
Procedure, we sua sponte may impose upon Father counsel fees.9 See
Feingold v. Hendrzak, 15 A.3d 937, 943 (Pa. Super. 2011) (explaining this
____________________________________________
8
Because Father waived his second and third issues, we need not decide
whether Father should have raised them in his previous appeal challenging
the July 12, 2013 order from which the enforcement orders at issue in this
appeal derive. It is worth reiterating that Father abandoned his second issue
in this appeal during his previous appeal.
9
At argument, Mother’s counsel requested this Court to impose upon Father
counsel fees. In this regard, however, Mother’s counsel failed to file any
application for imposition of counsel fees. This oversight by Mother’s
counsel is not fatal, because this Court sua sponte may impose counsel fees.
- 10 -
J-A03021-15
Court sua sponte may “impose an award of reasonable counsel fees”). In
fact, Pa.R.A.P. 2744, relating, inter alia, to counsel fees, provides:
In addition to other costs allowable by general rule or Act of
Assembly, an appellate court may award as further costs
damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in addition
to legal interest,
if it determines that an appeal is frivolous or taken solely for
delay or that the conduct of the participant against whom costs
are to be imposed is dilatory, obdurate or vexatious. The
appellate court may remand the case to the trial court to
determine the amount of damages authorized by this rule.
Pa.R.A.P. 2744.
As we detailed above, Father’s conduct leading up to this appeal has
been nothing short of obdurate, obstreperous and vexatious. Father not
only raised the jurisdictional issue simultaneously in different courts, but
also repeated it in multiple motions in the same court. For instance, while
Father’s jurisdictional issue was pending before the prior panel of this Court,
Father raised the same issue in his application for remand before the prior
panel and at least twice (First Motion and Second Motion) before the trial
court. When Father appealed the Second Motion, the prior panel of this
Court had not yet rendered its decision addressing the jurisdictional issue.
Put differently, when Father filed this appeal, he already had another
appeal pending in this Court concerning the same issue, i.e., lack of
subject matter jurisdiction.
- 11 -
J-A03021-15
After the prior panel of this Court issued its decision addressing the
jurisdictional issue, Father continued this appeal by filing a Rule 1925(b)
statement raising once again before the trial court the resolved jurisdictional
issue. Additionally, he filed a Petition for Allowance of Appeal in the
Supreme Court to challenge the prior panel’s decision, raising the same
issues that are currently before us. Given the fact that the prior panel of
this Court resolved Father’s jurisdictional issue and our Supreme Court
denied his ensuing appeal, we conclude the instant appeal is wholly
frivolous. Accordingly, we deem it appropriate to award Mother counsel fees
to deter Father from filing frivolous appeals in the future. We thus remand
this matter to the trial court for calculation of reasonable counsel fees.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judge Mundy joins the opinion.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
- 12 -