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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.E.U., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
G.W.U., JR.,
Appellant No. 1536 MDA 2015
Appeal from the Order Entered August 18, 2015
In the Court of Common Pleas of Lancaster County
Domestic Relations at No(s): 2010-01855
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2016
G.W.U. Jr. appeals from the August 18, 2015 order denying his
petition to modify a support order. We affirm.
On June 28, 2010, S.E.U., who has not filed a brief in this appeal,
instituted this action by filing a complaint seeking child support against
Appellant for the parties’ three minor children, who were then fourteen,
twelve, and nine years old. She amended the complaint to seek spousal
support. On August 4, 2010, an interim support order was entered
retroactive to June 28, 2010; arrearages were $3,854.14. Appellant’s
monthly income was computed as $4,557.38, Appellee had no income
imputed to her, and Appellant was ordered to pay $1,822.95 in monthly
spousal and child support.
*
Retired Senior Judge assigned to the Superior Court.
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The August 4, 2010 interim support order reflected “a downward
deviation of $455.75/month” from the applicable support guidelines “in the
consideration of [Appellant’s] fixed monthly obligations.” Interim Order,
8/4/10, at 3. Specifically, Appellant was paying the mortgage, a car loan,
and a loan secured during the marriage. Appellant was also ordered to
provide health insurance coverage, which was paid by his employer, for his
wife and children. At the time this order was entered, Appellee was
unemployed, having been terminated from her last job. She was attending
Consolidated School of Business, with an anticipated graduation date in
2011, and seeking employment. No appeal was filed from the August 4,
2010 order.
The record reflects that Appellant failed to comply with the support
order. As of March 7, 2012, he was $35,681.55 in arrears and his last
payment, $905.80, had been made on October 20, 2010. As a result, his
driver’s license was suspended. On March 25, 2013, for reasons that do not
appear of record, the court restored Appellant’s driving privileges.
On July 11, 2013, the Domestic Relations Section of the Court of
Common Pleas of Lancaster County sent a notice of proposed modification to
the child and spousal support based upon the following. Appellant was
incarcerated in a state correctional institution on charges of corruption of a
minor, incest, and indecent assault. One of his children was the victim of
those offenses. His earliest date of release was August 28, 2044. In
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addition, the parties had divorced, and the oldest child was emancipated. At
that time, Appellant had $64,759.40 in arrearages. The Domestic Relations
Section proposed to modify the support order “to a non-financial obligation
[for further support] as Defendant is incarcerated with no known income or
assets on which to base a financial obligation.” Notice of Proposed
Modification, 7/11/13, at 3. However, the Domestic Relations Section asked
that Appellant be required to pay $20.00 per month on arrears and $5.00
per month in fees. Id. On August 16, 2013, the court entered an order,
effective July 10, 2013, requiring Appellant to pay the requested amount on
arrearages and fees.
Appellant contested that order, claiming that he had no arrears when
he was incarcerated on September 17, 2010, and asking that he not be
ordered to pay the $25 a month. On October 28, 2013, the court denied
that request and modified the arrearages payment upward to $100 per
month. No appeal was filed from the October 28, 2013 order.
On June 4, 2015, Appellant filed a petition to terminate the $100 per
month that he had been ordered to pay on arrearages. Appellant claimed to
have no income since his incarceration and that arrearages should not have
been imposed for any time after September 17, 2010, when he was first
imprisoned. He also averred that his prison wages were being attached to
satisfy the monthly obligation imposed on October 28, 2013. That petition
was denied on July 7, 2015.
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On July 15, 2015, Appellant filed a “Motion for the Court to Terminate
Child Support order or Schedule a Timely Hearing Thereon.” That request
was treated as an appeal, and, on July 16, 2015, the court scheduled a
hearing for August 18, 2015. It thereafter reaffirmed its July 7, 2015 order
denying Appellant’s June 4, 2015 petition to terminate the $100 monthly
obligation on support arrearages. This appeal followed. The question
presented on appeal is: “Did the lower court commit an abuse of discretion
or an error of law in refusing to modify defendant’s support order?”
Appellant’s brief at 6.
Our standard of review in this context is settled. “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.” Summers v.
Summers, 35 A.3d 786, 788 (Pa.Super. 2012). The trial court has broad
discretion in this area, and we do not override that discretion “absent an
abuse of the discretion or insufficient evidence to sustain the support order.”
Id. Discretion is abused only when “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[.]” Id.
In accordance with Pa.R.C.P. 1910.19, child support may be modified
only upon a change of circumstances. Id. Specifically, Rule 1910.19,
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Support. Modification. Termination. Guidelines as Substantial Change in
Circumstances. Overpayments, states in pertinent part:
(a) A petition for modification or termination of an existing
support order shall specifically aver the material and
substantial change in circumstances upon which the
petition is based. A new guideline amount resulting from new
or revised support guidelines may constitute a material and
substantial change in circumstances. The existence of additional
income, income sources or assets identified through automated
methods or otherwise may also constitute a material and
substantial change in circumstances.
Pa.R.C.P. 1910.19(a) (emphasis added). As we noted in Summers, supra
at 789, “The burden of demonstrating a ‘material and substantial change’
rests with the moving party, and the determination of whether such change
has occurred in the circumstances of the moving party rests within the trial
court's discretion.” Id.
In this case, Appellant asserts that his incarceration constitutes a
change in circumstances. While the incarceration of a child-support obligor
can be considered a change in circumstances, Plunkard v. McConnell, 962
A.2d 1227 (Pa.Super. 2008), Appellant fails to appreciate that he was
incarcerated when the child support order that he seeks to modify was
entered. Appellant was incarcerated in September 2010, and never sought
modification of his support. Instead, in July 2013, the Domestic Relations
Section, of its own accord, proceeded pursuant to Pa.R.C.P. 1910.19(f), so
as to eliminate Appellant’s ongoing monthly obligation. That rule states:
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(f) Upon notice to the obligee, with a copy to the obligor,
explaining the basis for the proposed modification or
termination, the court may modify or terminate a charging order
for support and remit any arrears, all without prejudice, when it
appears to the court that:
(1) the order is no longer able to be enforced under state law; or
(2) the obligor is unable to pay, has no known income or assets
and there is no reasonable prospect that the obligor will be able
to pay in the foreseeable future.
Pa.R.C.P. 1910-19(f). In Plunkard, we concluded that this subsection,
which was added in 2006, was designed to aid incarcerated defendants who
do not have the ability to pay child support.
Herein, in 2013, when Appellant already was incarcerated, his ongoing
monthly support obligation was extinguished. On October 28, 2013, a
support order was entered mandating that Appellant pay $100 per month on
the outstanding arrearages. Appellant did not file an appeal from the order.
In 2013, Pa.R.C.P. 1910.19(f) was in effect, and Appellant could have
appealed at that time and asked this Court to overrule the trial court’s
decision and erase any arrearages accruing during his incarceration. He
failed to do so. Thus, Appellant’s continuing incarceration did not constitute
a change in circumstances as of June 4, 2015, when the present petition for
modification of the October 28, 2013 order was filed. The trial court did not
abuse its discretion in so concluding. See Trial Court Opinion, 10/28/15, at
5 (“The Court therefore dismisses the Appellant’s [June 4, 2015] petition for
failure of changing circumstances”).
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On appeal, Appellant invokes Plunkard. Therein, the child support
obligor was in jail and asked for a retroactive modification of his support
arrears for the period that he had been imprisoned. His request was
premised upon a change in the law. Specifically, when the obligor was
placed in jail in 2003, a parent’s incarceration was not considered a material
and substantial change in circumstances that justified modification or
termination of a support obligation. In 2006, the law was altered by the
enactment of Pa.R.C.P. 1910.19(f). The trial court permitted the obligor to
invoke that rule and erased his arrears based upon that change in the law.
We affirmed on appeal.
Herein, Appellant’s attempt to apply Plunkard fails. He was
incarcerated in 2010, after the 2006 enactment of Pa.R.C.P. 1910.19(f). On
October 28, 2013, the court entered an order requiring him to pay $100 on
arrearages that had accrued while Appellant was in jail. Appellant could
have appealed the order refusing to release him from his arrearages
obligation at that time. When Appellant filed the present petition June 5,
2015, the law was no different than it was in 2013, and Appellant’s
circumstances, imprisonment, were the same. Hence, there was no material
and substantial change in circumstances permitting modification of the
October 28, 2013 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2016
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