J-A05038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHARYL L. RAMSEY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ERAN GRUMBERG,
Appellee No. 1881 EDA 2014
Appeal from the Order Entered June 10, 2014,
In the Court of Common Pleas of Chester County
Civil Division at No(s): 01557N1999
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 24, 2015
Appellant, Sharyl L. Ramsey (“Mother”), appeals pro se from the order
denying her petition for modification of child support due from Appellee,
Eran Grumberg (“Father”). We affirm.
The protracted history of this case is as follows. Mother and Father
married in September of 1997 and separated in August of 1999.1 After the
parties separated, Mother initiated a support action, and the trial court
entered a temporary order for Father to pay spousal support. Daughter was
born in April of 2000.
In August of 2000, the trial court issued a combined child and spousal
support order. The parties filed motions for reconsideration and the trial
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1
A final divorce decree was issued in December of 2005.
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court modified the child and spousal support. Both parties filed petitions for
modification. In March of 2001, a hearing officer held a hearing on Mother’s
petition to increase the support order and Father’s cross-petition to
terminate the spousal support. In June of 2001, the hearing officer issued a
recommended order. Both parties filed exceptions to the hearing officer’s
report. In October of 2001, Judge Katherine Platt issued an opinion and
order and then an amended order. Both parties sought reconsideration and
Judge Platt issued a final order for support in November of 2001. Father
then appealed to this Court, and on November 14, 2002, we reversed the
award of child support and remanded the case for re-computation of the
amount of child support. Ramsey v. Grumberg, 3303 EDA 2001, 816 A.2d
341 (Pa. Super. filed November 14, 2002) (unpublished memorandum).
In January of 2003, the trial court held a hearing on remand and
addressed Father and Mother’s respective petitions to modify support. The
trial court issued an order in June of 2003. Both Father and Mother filed
motions for reconsideration. In August of 2003, the trial court issued an
amended order. Father filed a motion for reconsideration of the amended
order, which was denied. The parties then filed cross-appeals, and on
June 3, 2004, this Court affirmed. Ramsey v. Grumberg, 2746 & 2747
EDA 2003, 858 A.2d 1293 (Pa. Super. filed June 3, 2004) (unpublished
memorandum).
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While the previous appeal was pending, both Mother and Father filed
petitions to modify support. Judge Platt held hearings in August of 2004.
Judge Platt issued an order in December of 2004 and an amended order in
January of 2005. Mother and Father then filed cross-appeals. On
December 1, 2005, the Superior Court denied Mother relief and granted
Father relief in part. Mother filed a petition for allowance of appeal with the
Pennsylvania Supreme Court, which was denied on September 15, 2006.
Ramsey v. Grumberg, 573 EDA 2005 and 644 EDA 2004, 894 A.2d 830
(Pa. Super. filed December 1, 2005) (unpublished memorandum), appeal
denied, 906 A.2d 1197 (Pa. 2006).
Again, while the previous appeal was pending, both Mother and Father
filed petitions to modify support. After holding hearings in October 2007,
the trial court entered an order in June of 2008, which determined both
parties’ income and expenses, calculated child support awards for three
different periods, and directed Father to pay same. The trial court also
denied Mother’s request to reinstitute alimony pendente lite. Mother filed an
appeal, this Court affirmed the trial court’s decision on April 22, 2010, and
the Pennsylvania Supreme Court denied Mother’s subsequent petition for
allowance of appeal on January 20, 2011. Ramsey v. Grumberg, 2176
EDA 2008, 998 A.2d 1019 (Pa. Super. 2010) (unpublished memorandum),
appeal denied, 14 A.3d 829 (Pa. 2011).
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Again, while her prior appeal was pending, Mother filed multiple
petitions for modification seeking an increase in child support. In November
of 2011, Father filed a petition to reduce child support. Hearing Officer Julia
Malloy-Good held hearings on the petitions in August of 2012 and May of
2013, with the purpose of addressing all petitions and motions filed during
the pendency of the earlier appeal. On December 31, 2013, Hearing Officer
Good authored a report and recommendation resolving all of the prior
petitions and motions. The parties failed to file exceptions. On January 23,
2014, the trial court entered an order adopting Hearing Officer Good’s report
and recommendations. No appeal was filed.
However, on May 9, 2013, the day after the hearing officer completed
her hearings and BEFORE the hearing officer authored her report and
recommendation, Mother filed yet another petition for modification. On
June 9, 2014, the trial court entered an order dismissing Mother’s petition
for modification filed on May 9, 2013. This appeal followed.
The trial court offered the following additional facts in its opinion dated
June 9, 2014:
On May 8, 2013, Hearing Examiner Good, hereinafter
“HEG,” conducted the final evidentiary hearing addressing, “all
the Petitions and Motions filed ... from July 2, 2008 onward.”
See “HEG” Report and Recommendation, pg. 1. Significantly,
one goal of the hearings was to establish a support order for the
year 2013 and thereafter. While Judge Platt’s Opinion was on
appeal to the Superior Court, [Mother] filed FOUR petitions to
modify and [Father] filed ONE. The five petitions covered the
years 2011, 2012 and 2013, ALL OF WHICH “HEG” addressed.
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On May 9, 2013 at 8:55 a.m., [Mother] filed a Petition to
Increase averring that “Since 2012, there has occurred a
substantial and material change of circumstances.” See
paragraph #3 of the petition. This was the very issue just
litigated before “HEG.”
Why [Mother] felt it necessary to file yet another petition
asking the court to consider that which she knew “HEG” was in
the process of considering escapes me. [Mother] had the
opportunity to present any and all “since 2012 changes” during
the hearings held on August 23, 2012 and/or May 8, 2013 before
“HEG.” [Mother], through this filing, seeks a second opportunity
to litigate an issue already fully litigated and comprehensively
decided.
If [Mother] felt there was additional information “HEG”
should have considered concerning “since 2012 changes,” she
could have (1) petitioned to reopen the record before “HEG”;
and/or (2) cited the failure of “HEG” to reopen the record as an
exception to her report; and/or (3) appealed Judge MacElree’s
order asserting that she had been denied the opportunity to
provide relevant testimony.3 She took none of these steps.
Instead, she attempts this end run which if granted would make
a mockery of how these matters are heard. Finality is a
desirable goal in any endeavor, and especially so in the law.
3
“HEG’s” report makes clear there was no such
denial.
Trial Court Opinion, 6/9/14, at 2-3 (emphasis in original) (certain footnotes
omitted) (internal citations omitted).
Mother presents the following issues for our review:
1. Did the trial court abuse its discretion by not giving [Mother] a
fair and impartial hearing and only allowing a brief non-
evidentiary settlement conference regarding her Petition to
Modify which was time stamped May 9, 2013, but not part of the
docket entries or the order of December 2013, as it was being
held for a hearing until after the order of December 2013 per
Domestic Relations.
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2. Did the trial court abuse its discretion by misrepresenting
statements and actions of [Mother], including, but not limited to
what she could and could not file per Domestic Relations, and
treating her unfairly as a Pro Se party because she can not
afford an attorney and is not eligible to have Legal Aid of any
type?
3. Did the trial court abuse its discretion by conducting ex-parte
meetings, communications and accepting documents with
opposing counsel without [Mother] being present or pre-notified
or copied on the documents presented by opposing Counsel?
4. Did the trial court abuse its discretion not considering
[Father’s] total income for 2013 forward, including but not
limited to, income from all sources as this documentation was
not provided to [Mother] until 2014 after the order was entered,
with the exception in October 2013 of a $75,000 bonus, which
was to be considered at the next hearing along with the Motion
from May 9, 2013 per Domestic Relations?
5. Did the trial court abuse its discretion by dismissing
[Mother’s] filed Request for Production of Documents , as the
documents requested supported a significant change in
circumstances with [Father’s] substantial additional income
available for child support?
6. Did the trial court abuse its discretion by not transferring the
case to the Honorable James P. MacElree, II since the Honorable
Thomas G. Gavin states in his order that he can not modify
another Judge’s order, as [Mother] has no control over which
Judge Domestic Relations assigns to the case - this would never
allow for any modifications unless it was before the original
Judge?
Mother’s Brief at 4 (footnotes omitted).
When reviewing a support order, our standard of review is well settled:
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
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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.
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (quoting Samii
v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004)). 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. Sirio v. Sirio, 951 A.2d 1188,
1192-1193 (Pa. Super. 2008).
In her issues number one and number two, Mother argues that the
trial court erred in failing to permit her to relitigate aspects of Father’s
income relating to 2012 and 2013. Essentially, Mother argues that she was
not permitted to have a hearing to present evidence and documentation
pertaining to Father’s income that she did not possess at the hearing held on
May 8, 2013.
When a party petitions for modification of an existing support order, he
must “specifically aver the material and substantial change in circumstances
upon which the petition is based.” Pa.R.C.P. 1910.19(a). “[T]he
determination of whether such a change occurred in the circumstances of
the moving party rests within the trial court’s discretion.” Plunkard v.
McConnell, 962 A.2d 1227, 1229 (Pa. Super. 2008). However, a party may
not use a modification petition as a substitute for an appeal by attempting to
relitigate matters adjudicated by the support order. Florian v. Florian, 689
A.2d 968, 971-972 (Pa. Super. 1997). See Boullianne v. Russo, 819 A.2d
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577, 580 (Pa. Super. 2003) (explaining that a petition to modify an order of
support cannot be a substitute for an appeal); Beegle v. Beegle, 652 A.2d
376, 378 (Pa. Super. 1994) (stating that “[a]llegations of error in the factual
findings of a lower court are properly addressed by filing exceptions and an
appeal to this Court, not by filing a petition to modify in the same court that
rendered the order.”).
Mother cannot obtain review of the trial court’s decision pertaining to
Father’s income and appropriate support for the years which were addressed
in the final order dated January 23, 2014, by challenging the determination
in a petition for modification in lieu of an appeal. Because Mother did not
pursue a timely appeal of the trial court’s determination of Father’s income
for the years in question and relevant support obligation, she may not do so
now. Thus, Mother is not entitled to relief on these issues.
In her third issue, Mother argues that the trial court abused its
discretion in conducting ex parte meetings and communication with Father’s
counsel. However, Mother offers no evidence of record that such meetings
or communication occurred. Accordingly, we conclude that this claim lacks
merit.
In her fourth and fifth issues, Mother again argues that the trial court
should have revisited Father’s child support obligation for the year 2013.
Mother contends that she subsequently became aware of additional income
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earned by Father in 2013, and that she should have been permitted to
present this information to the trial court.
As we previously stated, a party may not use a modification petition as
a substitute for an appeal by attempting to relitigate matters adjudicated by
a support order. Florian, 689 A.2d at 971-972. Moreover, as previously
mentioned, the trial court stated the following approaches, which were
available to Mother:
If [Mother] felt there was additional information “HEG”
should have considered concerning “since 2012 changes,” she
could have (1) petitioned to reopen the record before “HEG”;
and/or (2) cited the failure of “HEG” to reopen the record as an
exception to her report; and/or (3) appealed Judge MacElree’s
order asserting that she had been denied the opportunity to
provide relevant testimony.
Trial Court Opinion, 6/9/14, at 3 (footnote omitted).
Here, after the hearings were completed and BEFORE either Hearing
Officer Good filed her report and recommendation or the trial court entered a
final order addressing Father’s income for multiple years (including the year
2013) and determined his support obligation, Mother filed the petition for
modification. Rather, Mother should have waited to file timely exceptions
and an appeal from the final order, and not a preemptory petition for
modification of support. Thus, Mother failed to avail herself of the
opportunity to timely challenge the trial court’s final determination.
Therefore, we cannot conclude that the trial court abused its discretion in
refusing to relitigate the matter addressed in its final order of January 23,
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2014. Consequently, Mother may not challenge the validity of the January
23, 2014 order in her current appeal. Mother is not entitled to relief on
these issues.
In her last issue, Mother AGAIN argues that the trial court erred and
abused its discretion in refusing to relitigate the determination of child
support in the January 2014 final order. In this issue, Mother revisits her
arguments previously raised and adds an additional assertion that the trial
court erred in concluding that the “law of the case” doctrine applied.
As we previously stated, “[t]his Court may only reverse the trial
court’s determination where the order cannot be sustained on any valid
ground.” Mackay, 984 A.2d at 533. Likewise, a party may not use a
modification petition as a substitute for an appeal by attempting to relitigate
matters adjudicated by the support order. Florian, 689 A.2d at 971-972.
Here, regardless of whether the trial court was correct that “law of the
case” doctrine is applicable, the fact remains that Mother failed to challenge
the support order in question in a timely appeal. Accordingly, we are
constrained to conclude that the trial court did not err or abuse its discretion
in refusing to relitigate the matters addressed in the final order of
January 23, 2014. Hence, Mother’s claim lacks merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
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