J-A11030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LUCRETIA MOYE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BAKARY NJIE
Appellant No. 1591 EDA 2015
Appeal from the Order Entered April 29, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): 01-70094
PACSES 103103717
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 06, 2016
Appellant, Bakary Njie (Father), appeals from the April 29, 2015 order
granting in part and denying in part his petition for special relief, seeking
modification of his child support obligation due to Appellee, Lucretia Moye
(Mother). After careful review, we affirm.
A summary of the history of this case follows.1 The parties are parents
of a son (Child) who was the subject of a support case initiated in
Philadelphia, Pennsylvania in 2001, with a final order issued in July 2004.
Mother and Child reside in Philadelphia and Father resides in Atlanta,
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*
Former Justice specially assigned to the Superior Court.
1
For the purpose of this recitation, we glean the history of this case from
the summaries provided by the trial court’s September 3, 2015 opinion and
Father’s brief, due to the paucity of the certified record as discussed infra.
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Georgia. Pursuant to the Uniform Interstate Family Support Act (UIFSA),
the Pennsylvania support order was registered in Georgia as a responding
state and tribunal. See generally 23 Pa.C.S.A. §§ 7101-7901. On
November 17, 2008, the Georgia court closed the case and set arrears at
zero.
On September 22, 2011, Father was the victim of a shooting that left
him permanently disabled. Father thereafter sought and was awarded Social
Security Disability Income (SSDI). On April 19, 2012, the Philadelphia
Domestic Relations Office (DRO) administratively reinstated the support
order retroactive to November 17, 2008, because the order had been
terminated by Georgia in error. On December 1, 2014, the underlying
support order was terminated effective November 17, 2014, upon the Child
turning 18 years of age, but an arrears only order was entered for $645.48
per month.2
Thereafter, Father’s retroactive lump sum payment of his SSDI was
garnished by the DRO, which Father asserts was the first he became aware
that the Georgia termination order had been reversed. Subsequently, Father
filed a petition for special relief on March 11, 2015, and an amended petition
for special relief on April 13, 2015. On April 29, 2015, the trial court held a
hearing on Father’s petitions, with Father to appear telephonically. After an
attempt to call Father at the commencement of the hearing found him
____________________________________________
2
The accumulated arrears at the time exceeded $50,000.00.
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unavailable, the hearing proceeded in his absence. At the conclusion of the
hearing, the trial court denied Father’s request to discharge the current
arrears, denied Father’s request to modify the basic child support retroactive
to the date of Father’s disability, and denied Father’s request to designate
the matter as complex in order to permit discovery. The trial court did grant
Father’s request for an audit of his support case and granted a reduction in
Father’s monthly arrears payment from $645.48 per month to $300.00 per
month. Father filed a timely notice of appeal on May 28, 2015.3
On appeal, Father raises the following issues for our review.
[1.] Did the Trial Court abuse its discretion when it
failed to allow [Father] a hearing on the question of
whether the state of Georgia had the authority to
terminate [Father’s] child support obligation, and
whether the Commonwealth of Pennsylvania
erroneously reinstated the underlying child support
order?
[2.] Did the Trial Court abuse its discretion by not
allowing [Father] to offer evidence that the Order
exceeds his Social Security Disability payments and
as such the Order exceeds the [Self Support Reserve
(SSR)]?
[3.] Did the Trial Court abuse its discretion by not
designating this matter as complex and allowing
[the] parties to engage in discovery so that [Father]
could see changes in [Mother’s] income since the
entry of the Order in 2004?
[4.] Did the Trial Court abuse its discretion by not
eliminating and remitting all arrears accrued on this
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3
Father and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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account since the time that [Father] became
disabled?
Father’s Brief at 3.4
We initially note that the certified record provided to this Court
contains only the trial court’s September 3, 2015 opinion filed pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), together with a “case
financial summary” attached as a court exhibit.5 This Court has long
admonished as follows.
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) (en banc).
Furthermore, it is the responsibility of the appellant to ensure the
completeness of the certified record. Id. at 7.
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4
Mother did not file an appellee brief.
5
On July 15, 2015, this Court, per curiam, issued an order directing Father
to order and pay for the trial court transcripts no later than July 24, 2015.
We issued a second per curiam order on July 31, 2015, acknowledging that
Father had complied. The transcript, however, was not forwarded by the
prothonotary to this Court. Father has included a copy in his reproduced
record. As Father was not on notice the transcript was not supplied to us,
we conclude Father is not at fault for this gap in the certified record.
Nevertheless, even considering the transcript as discussed within, we
conclude Father is not due any relief.
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The certified record consists of the “original papers
and exhibits filed in the lower court, the transcript of
proceedings, if any, and a certified copy of the
docket entries prepared by the clerk of the lower
court.” Pa.R.A.P.1921. Our law is unequivocal that
the responsibility rests upon the appellant to ensure
that the record certified on appeal is complete in the
sense that it contains all of the materials necessary
for the reviewing court to perform its duty.
Id.; see also Pa.R.A.P. 1931 cmt. (noting appellant is responsible to take
steps to correct any omissions from the list of record documents prepared
for transmission to this Court by the clerk of the trial court). For these
reasons we could deem Father’s issues on appeal waived. See Preston,
supra.
To the extent Father’s issues are reviewable on the existing certified
record and transcript, we note the following.
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.
Summers v. Summers, 35 A.3d 786, 788 (Pa. Super. 2012), quoting
Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008) (internal citation
omitted).
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Father first asserts the trial court abused its discretion when it failed to
afford Father a hearing on whether Georgia had the authority to terminate
Father’s support obligation in 2008 and whether Pennsylvania was correct in
administratively reinstating the support order in 2012. Father’s Brief at 9.
Father claims the trial court inappropriately relied on laches in refusing to
address the issue. Id. We conclude the extant record and the applicable
statutory law belie Father’s assertions.
First we note that while Pennsylvania reinstated Father’s support order
administratively on April 19, 2012, Father was granted a hearing on his
modification motion on April 29, 2015. Contrary to Father’s assertion, at the
April 29, 2015 hearing Father never asked the trial court to address the
propriety of Georgia’s termination or Pennsylvania’s reinstatement of the
support order. The only mention of the Georgia action occurred as follows.
THE COURT: I have it. I have -- first of
all, the arrears are $14,635.32 which are all –
they’re all owed to the obligee here. There are no
welfare arrears. Let me ask you a question, under
what authority do you have to join the Philadelphia
County Domestic Relation Section as an additional
defendant or respondent?
[FATHER’S ATTORNEY]: My
understanding from reviewing your records, Judge, is
that the Domestic Relations Section transferred this
under the interstate proceedings to Georgia where
there was some litigation, but ultimately it was
closed because the Domestic Relation Section
refused to comply or cooperate with Georgia. And
the reason that this is important, Judge, is because
ultimately the facts of the case are pretty sad. Mr.
Njie, in 2011 was shot and injured and as a result,
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he’s been disabled and he is receiving disability
benefits.
N.T., 4/29/15, at 4-5.
Discussion then took place about the amount of Father’s SSDI
payments, and the issue of Georgia’s termination was not mentioned again.
Furthermore, the trial court’s later reference to laches was in response to
Father’s claim that Mother had failed during the life of the support order to
report any changes in her income. The trial court did not mention laches in
connection with the termination and reinstatement of the order. Id. at 9-
10. We therefore conclude that the trial court did not preclude Father from
having a hearing on this issue. Rather, Father has waived the issue by
failing to present it to the trial court when he had an opportunity to do so.
“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a).
Furthermore, we conclude Father’s legal position is without merit. In
support of his contention that Georgia, as the responding tribunal, possessed
the authority to modify the support order, Father cites Ga. Code Ann. § 19-
11-124. That statute provides in pertinent part as follows.
§ 19-11-124. Duties and powers of responding
tribunal
(a) When a responding tribunal of Georgia receives
a petition or comparable pleading from an initiating
tribunal or directly pursuant to subsection (b) of
Code Section 19-11-120, it shall cause the petition
or pleading to be filed and notify the petitioner
where and when it was filed.
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(b) A responding tribunal of Georgia, to the
extent not prohibited by other law, may do one
or more of the following:
(1) Establish or enforce a support order,
modify a child support order, determine the
controlling child support order, or determine
parentage of a child;
…
(4) Determine the amount of any arrearages
and specify a method of payment;
…
Ga. Code Ann. § 19-11-124 (emphasis added). Father fails to cite the
controlling portion of Georgia’s enactment of UIFSA, to wit, as follows.
§ 19-11-170. Modification of child support
order of another state
(a) If Code Section 19-11-172 [(pertaining only to
situations where all parties and the children reside in
Georgia)] does not apply, upon petition a tribunal of
Georgia may modify a child support order issued in
another state which is registered in Georgia if, after
notice and hearing, the tribunal finds that:
(1) The following requirements are met:
(A) Neither the child, nor the obligee who
is an individual, nor the obligor resides in
the issuing state;
(B) A petitioner who is a nonresident of
Georgia seeks modification; and
(C) The respondent is subject to the
personal jurisdiction of the tribunal of
Georgia; or
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(2) This state is the residence of the child or a
party who is an individual, is subject to the
personal jurisdiction of the tribunal of Georgia,
and all of the parties who are individuals have
filed consents in a record in the issuing tribunal
for a tribunal of this state to modify the
support order and assume continuing,
exclusive jurisdiction.
…
Ga. Code Ann. § 19-11-170.
Clearly, at the time Georgia terminated Father’s support order, both
Mother and the Child continued to reside in Pennsylvania. Therefore, the
conditions of Section 19-11-170(a)(1)(A) and (B) were not met.
Additionally, Mother never consented to Georgia assuming continued
exclusive jurisdiction, so Section 19-11-170(a)(2) did not apply. We thus
conclude Georgia lacked authority to modify the support order, and
Pennsylvania was not bound to recognize the termination. 23 Pa.C.S.A. §
7612. For these reasons, we discern no abuse of discretion by the trial court
in not revisiting the issue of the April 19, 2012 reinstatement of the
underlying support order.
In his second and fourth issues Father claims the trial court abused its
discretion by not allowing him to offer evidence of his SSDI income, by
declining to discharge all arrears, or alternatively by setting a monthly
support obligation on arrears that exceeds his SSR. Father’s Brief at 12.
Again, our review of the transcript belies Father’s assertion. First, Father did
not make himself available to participate in the hearing via telephone
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despite adequate notice of the hearing. N.T., 4/29/15, at 3. Furthermore,
during the course of the hearing, Father’s counsel indicated to the trial court
that he had documentation of amounts Father received in SSDI. Id. at 6,
10, 11. However, counsel never offered those documents into evidence, and
nowhere in the record did the trial court preclude Father’s attorney from
doing so. See generally id. Remission of arrears by a trial court is
permitted only where an order is unenforceable or where “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). Father has not met this burden. Consequently, we
conclude, based on the state of the record before it, that the trial court did
not abuse its discretion in declining to remit Father’s arrears or in reducing
Father’s monthly arrears payment from $645.48 to $300.00.
Father finally claims the trial court abused its discretion by denying his
request to designate the case as complex and permitting him to engage in
discovery. Father’s Brief at 13; see Pa.R.C.P. 1910.9, 1910.12(c). We
agree with the trial court’s determination “that a designation of this support
matter as complex was not necessary or appropriate because the
establishment or modification of a running support order was not at issue,
[]Father had been making payments on an arrears only order, [and] he has
verifiable income from his Social Security disability benefits.” Trial Court
Opinion, 9/3/15, at 8.
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For all the foregoing reasons, we conclude Appellant’s issues on appeal
are either waived or without merit. We discern no abuse of discretion by the
trial court in denying in part Father’s petition for special relief. Accordingly,
we affirm the trial court’s April 29, 2015 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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