J-A21005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MIRIAM A. JOHNSON, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALBERT D. JOHNSON, JR.,
Appellant No. 2843 EDA 2015
Appeal from the Order Entered August 28, 2015
In the Court of Common Pleas of Chester County
Domestic Relations at No(s): 0582 N 1997
PACSES #133001257
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2016
Albert D. Johnson, Jr., (Father or Petitioner) appeals from the order,
entered on August 28, 2015, that denied his request to terminate an existing
support order and an obligation to pay for health insurance coverage for
Jessica Amanda Gardener, who Father claims is no longer a dependent child.
We vacate and remand.
The trial court provided the following factual and procedural
introduction to this case, stating:
We consider the June 2, 2014 Petition of [Father] to
modify an existing support order originally entered on February
1, 1998 on the application of Miriam A. Johnson (the “Obligee”
[or Mother]), Petitioner’s former wife and the mother of the
parties[’] natural child, Jessica Amanda Gardener (hereafter “Ms.
Gardner”). Therein, Petitioner averred his retirement from
employment, his ineligibility for continuing Ms. Gardener’s
medical insurance coverage under his former company’s health
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insurance policy, and his request that she secure coverage under
The Patient Protection and Affordable Care Act. The Petition was
amended on August 4, 2014 to include a prayer for the
termination of the support order, upon the allegation that Ms.
Gardner, who is now 39 years of age, is no longer a dependent
child. No formal written response to the Petition was filed. The
support order was modified by this court on October 17, 2002 by
the removal of Petitioner’s natural son from the order, who was
then 19 years of age; however, Ms. Gardener, whose date of
birth is April [], 1976, was then 26 years of age and was found
to remain an adult dependent child within the meaning of 23
Pa.C.S.A. §[]4321(3). Petitioner was ordered to pay for her
benefit the sum of $2,000 per month, effective January 1, 2002,
the amount from which relief is now sought by Petitioner. We
conducted a hearing on the Petition on May 11, 2015 at which
Petitioner was represented by Evan Hambleton, Esquire, and
[Mother] appeared pro se as the respondent to represent her
daughter’s interest.
On December 23, 2014, Petitioner served on the Obligee
Requests for Admissions pursuant to Pa.R.C.P. 4014, to which no
objection or response was made. Prior thereto, on October 23,
2014[,] we entered an Order directing Obligee to respond to
Petitioner’s discovery demand, including requests for production
of documents and interrogatories, including those inquiring into
Ms. Gardener’s treatment for any condition which might render
her incapable of self-support. In its October 17, 2002 order, the
court found that Ms. Gardener “has suffered and continues to
suffer from multiple disabling mental illnesses.” Under Rule
4014(b), requests for admissions to which no objection or
response is made are admitted.
Trial Court Opinion (TCO), 8/28/15, at 1-3.
Following this preliminary discussion, the court related numerous facts
about Ms. Gardener, involving her schooling, the locations to which she
moved over the ensuing years, and the jobs that she held. The court also
discussed Ms. Gardener’s previous diagnosis, the treatments she underwent,
and the medications she took. The court also found that:
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There is no competent evidence that Ms. Gardener is physically
incapable of working; however, even though she is a highly
intelligent person, from the testimony adduced during trial,
including our observation of her during her lengthy testimony,
we find that she continues to suffer from a life-long psychiatric
illness that prevents her from normally interfacing with other
people. She displays continuing fearfulness of situations and
people, lives an isolated life, with her two dogs her closest
companions and protectors, and she has a work history that
demonstrates an inability to successfully compete or hold on an
ongoing basis a competitive position in the job market place,
such as would allow her to become totally self-supporting.
TCO at 13 ¶ 21.
Additionally, the court discussed Father’s financial situation upon his
retirement and Mother’s limited income. The court also set forth the law
directed to the issue of whether a parent continues to have a duty “to
support a child that has a physical or mental condition, which exists at the
time the child reaches its majority that prevents the child from being self-
supporting.” Id. at 16. The court explained that the test a court must
employ “to determine continuing disability is whether the support beneficiary
has become and is now physically and mentally able to engage in profitable
employment and whether such employment is available to her at a
supporting wage.” Id. (citing Hanson v. Hanson, 625 A.2d 1212 (Pa.
Super. 1993)). Notably, however, it is the adult child’s burden to prove the
conditions that make it impossible for her to be employed. Id. at 17 (citing
Verna v. Verna, 432 A.2d 630 (Pa. Super. 1981)).
The court also noted that it did not “have the benefit of current
psychiatric testimony….” Id. at 17. However, in this regard, it stated:
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It is well established that a court may not ordinarily take
judicial notice in one case of the records of another case,
whether in another court or its own, even though the contents of
those records may be known to the court. Naffah v. City Deposit
Bank, 13 A.2d 63 (Pa. 1940). However, we know from this
Court's 2002 Order and the record made at that time in this self-
same case that Ms. Gardener has suffered since childhood from
psychiatric illness and previously has been diagnosed with
schizotypal personality disorder. People suffering from a
schizotypal personality disorder typically display a need for social
isolation, anxiety in social situations, odd behavior and thinking,
have few or no close friends and are inappropriate in their
display of feelings. Source: Diagnostic and Statistical
Manual of Mental Disorders (DSM); Encyclopedia of Mental
Disorders. In our opinion, the evidence in this case clearly
demonstrates that Ms. Gardener continues to suffer from a long-
standing mental disability that adversely affects her ability to
become fully self-supporting. Given the instant facts, we
conclude that the support recipient has rebutted the presumption
of emancipation that arises as a consequence of her age.
Id. at 20 (emphasis in original). Accordingly, the trial court denied Father’s
petition and continued his obligation to pay support for Ms. Gardener and
provide health insurance coverage for her.
Father filed a timely appeal to this Court and now raises the following
seven issues for our review:
I. Did the trial court err in allowing the testimony of Jessica
Gardener without prior notice to [Father]?
II. Did the trial court err in relying on medical records in its
opinion after sustaining the objection to the introduction of said
records into evidence at trial?
III. Did the trial court err in forming and relying upon its own
medical opinions and conclusions regarding [Ms. Gardener],
given the absence of competent evidence in the record of [Ms.
Gardener’s] condition?
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IV. Did the trial court err by, in effect, placing the burden of
proof on [Father] to establish that a prior medical condition no
longer exists?
V. Did the trial court err in finding that Jessica Gardener is not
capable of self[-]support?
VI. Did the trial court err in its determination of a continuing
support obligation which was against the evidence?
VII. Did the trial court err in not terminating [Father’s] support
obligation?
Father’s brief at 4-5.
In reviewing an order entered in a support proceeding, an
appellate court has a limited scope of review. The trial court
possesses wide discretion as to the proper amount of child
support and a reviewing court will not interfere with the
determination of the court below unless there has been a clear
abuse of discretion. The function of the appellate court is to
determine whether there is sufficient evidence to sustain the
order of the hearing judge. An abuse of discretion is not merely
an error of judgment; rather, it occurs when the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable or the result of partiality, bias or ill-will.
Style v. Shaub, 955 A.2d 403, 406-07 (Pa. Super. 2008). The Style
decision also provides that “[i]n Pennsylvania, the duty to support a child
generally ceases when the child reaches the age of majority, which is
defined as either eighteen years of age or when the child graduates from
high school, whichever comes later.” Id. at 408 (citing Blue v. Blue, 616
A.2d 628 (Pa. 1992)). However, the Style opinion further explains that “23
Pa.C.S.A. § 4321(3) … provides that ‘[p]arents may be liable for the support
of their children who are 18 years of age or older.’” Id. A continued
support obligation occurs “where such child is too feeble physically or
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mentally to support itself[.]” Id. (quoting Commonwealth ex rel.
O’Malley v. O’Malley, 161 A. 883 (Pa. Super. 1932)). Furthermore,
“[w]hen the disability resulting in the child’s inability to be self-sufficient
already exists at the time the child reaches the age of majority … the
presumption is rebuttable by the adult child upon proof that there are
‘conditions that make it impossible for her or him to be employed.’” Id.
(quoting Hanson, 625 A.2d at 1214).
We begin by addressing Father’s issue relating to the alleged reliance
by the court on recent medical records although the court had denied their
introduction into evidence. In conjunction with this argument, Father also
contends that the court relied on its own medical opinions, gleaning
information from medical records introduced in the court hearing held in
2002. See discussion supra. In the trial court’s supplemental opinion,
written after Father submitted his concise statement of errors complained of
on appeal, the court addressed these arguments, stating:
[Mother] sought to introduce medical records of Ms. Gardener’s
recent treatment at a community mental health service in the
State of Washington. We precluded her from doing so in that
such records without testimony of the provider constituted
hearsay and denied [Father] the opportunity to cross-examine;
however, we do not believe we were precluded from consulting
this court’s file in this case, specifically Ms. Gardener’s medical
records in the court’s file introduced at a prior court hearing in
2002 in which [Father] sought termination/modification of his
support obligation, that had been subject to cross-examination,
and from which the court at that time found Ms.[] Gardener to
be the victim of an on-going psychiatric illness from age 7.
These records were equally available to [Father].
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. . .
Our discussion at page 20 of our [initial] opinion discusses our
observations of Ms. Gardener during her trial testimony, and
describes exactly the manner in which she presented while on
the stand. Indeed, our findings of fact relative to her troubled
employment history, such as it has been, and our observation of
her trial demeanor and her responses to counsel’s questions and
our own, supports the conclusion we reached under all of the
facts as we found them to be. As the trier of fact, we had the
authority to judge the demeanor of this witness, measure her
credibility, and determine whether either was affected by mental
impairment. We do not believe we required psychiatric
testimony to reach a conclusion respecting those factors, given
her long-standing illness and the facts described in our findings
that support our ultimate conclusion. Neither is our resort to the
DSM, a manual available and commonly used by trial judges,
unusual, nor inconsistent with the records in the court[’]s file
pertaining to this case and Ms. Gardener.
Trial Court Supplemental Opinion (TCSO), 10/16/15, at 5-7.
Specifically, Father argues that the court improperly relied on
unidentified medical records in arriving at its conclusion that Ms. Gardener
remained a dependent child. Father further contends that the court is
prohibited from considering evidence not part of the record in this case or
from taking judicial notice of the records in another case, even if known to
the court. We agree. Although the certified record in this matter contains
copies of medical reports from the 2002 litigation, those documents were not
admitted into evidence in this case. Therefore, the court was not permitted
to rely on any information gleaned from those documents. “A trial court
may not consider evidence outside of the record in making its determination.
Eck v. Eck, 327 Pa. Super. 334, 475 A.2d 825, 827 (1984). Nor may this
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[C]ourt uphold a trial court’s order on the basis of off-the-record facts. Id.
(citing In re Frank, 283 Pa. Super. 229, 423 A.2d 1229 (1980)).” Ney v.
Ney, 917 A.2d 863, 866 (Pa. Super. 2007).
Here, the court references the more than ten-year-old medical records
not contained in the record in the instant case and the newer medical
records Mother sought to introduce. The court directly indicates that it
precluded the more recent documents as hearsay, because they could not be
authenticated. However, the court apparently relied on selected documents
from the litigation that took place in 2002, which we conclude is troubling
because of the age of the information contained in those records and the
fact that the evidence is outside the record presently before the court.
Based upon this conclusion, we vacate the court’s denial of Father’s petition
and remand this matter for consideration by the court of the evidence before
it without reliance on any evidence, medical or otherwise, that is not part of
the record.1
Order vacated. Case remanded for further action consistent with this
memorandum. Jurisdiction relinquished.
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1
In light of the fact that we are vacating the order appealed from for the
reasons stated above, we do not address the other issues raised by Father in
this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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