Klinger, T. v. Geiger, E.

J-S75032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRICIA A. KLINGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EDWARD R. GEIGER, JR., :
:
Appellant : No. 1073 EDA 2016

Appeal from the Order entered March 7, 2016
in the Court of Common Pleas of Northampton County,
Domestic Relations Division, No(s): DR-116715 PACSES 14510478

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2016

Edward R. Geiger, Jr. (“Geiger”), appeals from the March 7, 2016

Order (hereinafter the “Support Order”), which made final a prior Order

requiring him to pay child support, in the amount of $232 per month, to

Tricia A. Klinger (“Klinger”), the mother of Geiger’s minor child. We affirm.

The trial court thoroughly set forth the relevant factual and procedural

history, which we adopt herein by reference. See Trial Court Opinion,

5/26/16, at 1-8.

In this timely appeal, Geiger presents the following issues for our

review:

A. Whether the trial court committed an abuse of discretion
and/or error of law by failing to enter a written order
consistent with the trial court’s specific decision stated at
[the] conclusion of the [January 27, 2016] de novo hearing
[(hereinafter “the de novo hearing”)], including that the
support matter would be dismissed, the trial court would
direct [Domestic Relations Office (“DRO”)] case workers to
contact [Klinger], and if [Klinger] intended to pursue the
J-S75032-16

matter, the case would be relisted for a conference/hearing,
and[,] instead, denied [Geiger’s] de novo request for [a]
hearing?

B. Whether the trial court committed an abuse of discretion
and/or error of law by failing to deny and dismiss the support
Petition in response to the multiple and cumulative arguments
of [Geiger,] where [he] argued that the support matter was
improperly commenced[,] in violation of Pa.R.C.P. [] 1910.3;
that there was no evidence of a substantial change in his
earning[] capacity; that, absent such evidence of a change,
res judicata barred the re-litigation of his earning[] capacity;
and further, that the trial court should have compelled
[Klinger’s] attendance (in some form) at the [de novo]
hearing?

C. Whether the trial court committed an abuse of discretion
and/or error of law by failing to conduct a full and fair de
novo hearing as required by Pennsylvania law and the Rules
of Civil Procedure?

D. Whether the trial court committed an abuse of discretion
and/or error of law by making findings and conclusions of law
where no testimony or facts of record exist to support the
trial court’s determinations regarding [Geiger’s] and
[Klinger’s] earnings, as well as [Geiger’s] support obligation,
and further, by disregarding the prior, uncontradicted findings
of the Court of Common Pleas of Carbon County regarding
[Geiger’s] earning[] capacity and support obligation?

Brief for Appellant at 5 (capitalization omitted).

A parent’s financial obligation to his children is absolute, “and the

purpose of child support is to promote the child’s best interests.” Morgan v.

Morgan, 99 A.3d 554, 557 (Pa. Super. 2014) (citation omitted). We review

a child support order for an abuse of discretion. J.P.D. v. W.E.D., 114 A.3d

887, 889 (Pa. Super. 2015); see also Style v. Shaub, 955 A.2d 403, 406

(Pa. Super. 2008) (stating that “[t]he trial court possesses wide discretion as

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J-S75032-16

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.” (citation omitted)). Additionally, “[t]he fact-finder is

entitled to weigh the evidence presented and assess its credibility[.]” Samii

v. Samii, 847 A.2d 691, 697 (Pa. Super. 2004) (citation omitted).

In his first issue, Geiger argues that the trial court abused its

discretion “where the trial court stated its decision to grant [Geiger’s]

request at the de novo [] hearing, and further, where all counsel agreed with

the trial court’s decision, and yet, the trial court then issued [the] directly

contradictory [Support O]rder denying [Geiger’s] request.” Brief for

Appellant at 11.1 According to Geiger, at the de novo hearing, “the trial

court [judge] plainly and unequivocally stated that the existing support case

would be dismissed, [and] Northampton [County] DRO would contact

[Klinger] to determine whether she wished to proceed with a claim for

support against [Geiger.]” Id. at 12. Geiger further asserts that “at the

conclusion of the … [de novo] hearing, the trial court [] stated that [Klinger]

would need to file a new petition for support[, to] which [Geiger’s] counsel

1
To the extent that Geiger presents other, unrelated arguments under the
same subheading of his first issue, see Brief for Appellant at 15-16, 19-21,
these arguments are not fairly suggested by the Statement of Questions
Involved section of Geiger’s brief, nor did he raise them before the trial
court. See Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); Pa.R.A.P. 302(a) (stating that a claim cannot be
raised for the first time on appeal). Accordingly, these arguments are
waived. See id.

-3-
J-S75032-16

and [Klinger’s] counsel agreed.” Id. at 13. Pointing to the purportedly

“contrary” Support Order, however, Geiger challenges “the trial court’s

failure to adhere to its own decision[, i.e., at the de novo hearing,] as well

as the agreement of counsel ….” Id. at 14.

In its thorough Opinion, the trial court addressed Geiger’s claims and

determined that they do not entitle him to relief. See Trial Court Opinion,

5/26/16, at 12-17. The trial court’s cogent reasoning is supported by the

record and the law, and we therefore affirm on this basis as to Geiger’s first

issue. See id.

In his connection with his second issue, Geiger asserts several sub-

issues, which he summarizes as follows:

i. [] [T]he support matter was improperly commenced[, i.e.,
purportedly by Northampton County DRO,] in violation of
Pa.R.C.P. Rule 1910.3;

ii. [] the matter was barred by operation of Res Judicata due to
the prior determination by the Carbon County Court of
Common Pleas’ [] regarding [Geiger’s] earning[] capacity;

iii. [] the matter was barred by operation of Res Judicata and
[Klinger’s] abandonment of her prior case in Carbon County;

iv. [] despite [Geiger] requesting a de novo hearing, and the
hearing notice requiring both parties to appear, [Klinger]
failed to appear. [Geiger’s] counsel asserted that [Klinger]
abandoned her appeal, and in the alternative, [requested]
that the trial court compel [Klinger] to appear;

v. [] alternatively, there was no evidence of a change in
[Geiger’s] earning[] capacity from the prior [O]rder of the
Court of Common Pleas of Carbon County; [and]

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J-S75032-16

vi. [Geiger] also notes that he may have raised additional
arguments had the court conducted a proper de novo
hearing[, i.e., had the court stated at the de novo hearing its
intention to “dismiss” Geiger’s claim].

Brief for Appellant at 22; see also id. at 22-28 (expounding upon these

claims).

The trial court thoroughly addressed Geiger’s second issue in its

Opinion, set forth the relevant law, and determined that the issue and each

sub-issue lacked merit. See Trial Court Opinion, 5/26/16, at 18-27. The

trial court’s cogent reasoning is supported by the record and the law, and we

therefore affirm on this basis concerning Geiger’s second issue. See id.

In his third issue, Geiger argues that the trial court erred and

prejudiced him by failing to conduct a full and fair de novo hearing. See

Brief for Appellant at 29-32. Specifically, Geiger asserts that

by filing for de novo review, [Geiger] did not request that the
trial court simply review the findings of the hearing officer to
determine whether such findings were appropriate; to the
contrary, … [Geiger] wanted a full reconsideration (i.e.[,] a new
hearing) of his case. Yet, the trial court did not conduct a full
hearing.

Id. at 31 (citing Warner v. Pollock, 644 A.2d 747, 750 (Pa. Super. 1994)

(stating that “[a] de novo hearing is full consideration of the case anew. The

reviewing body is in effect substituted for the prior decision maker[,] and

re[-]decides the case.” (internal citation and quotation marks omitted)); see

also Brief for Appellant at 31 (pointing out that [Klinger] did not appear at

the de novo hearing, and asserting that the trial court improperly thereafter

-5-
J-S75032-16

“issue[d] an [O]rder directly and inexplicably contrary to its own decision

announced in open court[,]” which, Geiger argues, deprived him of a full de

novo review. (emphasis omitted)).

The trial court addressed Geiger’s third issue in its Opinion, set forth

the relevant law, and determined that he was, in fact, afforded a full and fair

de novo hearing. See Trial Court Opinion, 5/26/16, at 28-30; see also id.

at 24-25. We agree with the trial court’s rationale and determination, and

thus affirm on this basis as to this issue. See id. at 28-30.

Finally, Geiger asserts that,

as argued throughout this [brief], … the trial court committed an
error of law and/or abuse of discretion by making findings and
conclusions of law where no testimony or facts of record exist to
support the trial court’s determinations, and further[,] by
disregarding the prior, uncontradicted findings of the Court of
[C]ommon [P]leas of Carbon County regarding [Geiger’s]
earning[] capacity and support obligation.

Brief for Appellant at 33.

In its Opinion, the trial court addressed Geiger’s final issue, correctly

observed that it is “essentially a restatement of several aspects of the

previous issues raised[,]” and determined that the issue did not entitle

Geiger to relief. See Trial Court Opinion, 5/26/16, at 30-31. We agree with

the trial court’s rationale and determination, and thus affirm on this basis

concerning Geiger’s final issue. See id.

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J-S75032-16

Accordingly, because we discern no error of law or abuse of discretion

by the trial court in conducting the de novo hearing, or entering the Support

Order, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2016

-7-
 Circulated 11 /02/2016 04:01 PM

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
DOMESTIC RELATIONS SECTION

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STATEMENT

AND NOW, this 26th day of May 2016, the Court issues the

following statement pursuant to Pa.R.A.P. No. 1925(a):

PROCEDURAL HISTORY

This matter is currently before the Superior Court on Defendant

Edward Geiger's appeal of our Order of Court dated March 7, 2016.

The instant matter originated in Schuylkill County, Pennsylvania

and dates back to 2007. Plaintiff, Tricia Klinger, filed her Complaint

for the support of one (1) child on June 27, 2007. The matter

remained in Schuylkill County, through several modifications, until

August 2010, when it was transferred to Carbon County. On Ju!y 28,

2011, the Carbon County Court of Common Pleas Domestic Relations

Section (hereinafter the "Carbon County Court") entered a Modified

Order of Court setting child support for one (1) child, Shawnee D.

Geiger, at $120.00 per month plus $25.00 for arrears. See. Order of
ORIGINAL TO DOCKETING 5/26/2016
SUPERIOR COURT OF PA
HONORABLE PAUlAA. ROSCIOLI
1 JOSEPH V. SEBELIN JR .. ESQ.
PLAINTIFF
RUTH VEGA-VELEZ (DRS DIRECTOR)
lAllll nllTC· nc:ne:..r1n1 ~
Court, 7/28/2011, Klinger v. Geiger, 136 DR 11 (Com. Pl. Carbon

County). Arrears as of that date were set at $0.00. Id. In calculating

the support amount, the Carbon County Court utilized a monthly net

income for Defendant of $1,146.04 and Plaintiff's net monthly income

of $1,247.57. Id.

On March 2, 2015, Defendant filed a Petition for Modification of

Child Support. See, Domestic Relations Office Hearing Officer's

Report, 6/2/2015, Klinger v. Geiger, 136 DR 11 (Com. Pl. Carbon

County). On March 23, 2015, the Carbon County Court entered an

Order terminating support without prejudice, effective 2/26/2015,

based upon the fact that Defendant's unemployment benefits had run

out, that Defendant was unemployed, and Defendant had no income or

assets to warrant a support obligation. See, Order, 3/23/2015, Klinger

v. Geiger, 136 DR 11 (Com. Pl. Carbon County). The Court also noted

that Defendant would be placed in the DRS Job Search program. Id.

Finally, the Court noted that, "[a]s neither parties now reside in

Carbon County, defendant's portion shall be transferred to

Northampton County." Id. Also on March 23, 2015, the Carbon

County Court entered an "Order - Work Search and Report" requiring

Defendant to participate in the Work Search Program requiring

Defendant to report to DRS, as required by DRS, with a list of potential

employers he had contacted, submit applications to prospective

2
employers as required by DRS, and to notify DRS in writing within

seven days of acquiring a job. See, Order - Work Search and Report,

3/23/2015, Klinger v. Geiqer, 136 DR 11 (Com. Pl. Carbon County).

Defendant's first report was due to DRS no later than April 17, 2015.

Id. Additionally on March 23, 2015, the Carbon County Court entered

a "Suspended Order/ Non-Financial Order" in which the Court

indicated that Defendant's financial obligation was set to zero effective

2/16/2015 because the Defendant was "unable to pay, has no known

income or assets and there is no reasonable prospect that the

Defendant will be able to pay in the foreseeable future." See,

Suspended Order/ Non-Financial Order, 3/23/2015, Klinqer v. Geiger,

136 DR 11 (Com. Pl. Carbon County). Any arrears were remitted

without prejudice as of February 16, 2015. Id. The Carbon County

Court indicated as follows:

The financial obligation is to be
reviewed/Conferenced for further
determination upon the Defendant attaining
employment, income or assets that are
available to pay support. The Defendant is
ordered to immediately report to the Domestic
Relations Section any changes in his/her
employment, income, and assets, or Medical
capability to return to work. If incarcerated,
the defendant must report to the Domestic
Relations Section within one week of released
from incarceration for further determination of
ability to pay support.

Id.

3
 On April 9, 2015, Plaintiff filed a timely appeal of the Carbon

County Court's March 23, 2015 Orders. See, Domestic Relations Office

Hearing Officer's Report, 6/2/2015, Klinger v. Geiger, 136 DR 11

(Com. Pl. Carbon County). A short de novo hearing was held with the

parties on May 29, 2015. Id. Plaintiff withdrew her appeal of the

March 23, 2015 Orders on the record. Id. Hearing Officer Diehl noted

in her Findings of Fact that "[a]s neither party resides in Carbon

County, the case shall be transferred to Northampton County where

the Defendant resides. This should aid in enforcement of any future

child [support] order which may be entered between the parties." Id.

at p, 2. On June 2, 2015, the Carbon County Court entered an Order,

based upon Hearing Officer Diehl's recornmendatlon, indicating that

the "matters pending before this Court have been resolved. The case

shall be transferred to Northampton County Domestic Relations

Office.'' See, Order, 6/2/20151 Klinger v. Geiger, 136 DR 11 (Com. Pl.

Carbon County). On July 30, 2015, the Carbon County Court entered

an Order stating as follows:

As all the pending matters have been resolved,
this case is currently open as an N FOB (Non-
Financial Obligation). The defendant is under a
Work Search and Report Order dated
03/23/2015 as the defendant was found to
have no income, at that time, to warrant a
support obligation.
As neither parties reside in Carbon County, and
per the defendant's written consent, this child
support case #145101478, Docket#l36DR11

4
 from Carbon County shall be transferred to
Northampton county Domestic Relations
Section.
Upon acceptance of the transfer from
Northampton County, the Carbon County case
will be closed.

See, Order, 7/30/2015, Klinger v. Geiger, 136 DR 11 (Com. Pl. Carbon

County).

The Northampton County Domestic Relations Section received

the Registration Statement from Carbon County on August 19, 2015

and the matter was docketed at the instant docket number. See,

Registration Statement, KlInger v. Geiger, D R-116 715 (Com. Pl.

Northampton County). On October 1, 2015, the undersigned entered

an Order of Registration and Confirmation indicating that the Foreign

Support Order Number 136DR11 issued by the Carbon County Court in

the state of Pennsylvania, whereby the Defendant has been directed to

pay $0.00 per month for Shawnee D. Geiger born 02/17 /99 which

became effective February 15, 2015, and in which there are arrears of

$0.00 as of August 141 2015, is hereby registered and confirmed by

the Court of NORTHAMPTONCounty. See1 Order of Registration and

Confirmation, 10/1/15, Klinger v. Geiger, DR-0116715 (Com. Pl.

Northampton County).

After acceptance and registration of the Carbon County Order,

on October 13, 2015, the Director of Northampton County Domestic

Relations, Ruth Vega-Velez1 filed a Petition for Review of the instant

5
matter on behalf of Domestic Relations Section to review the non-

financial obligation dated 3/23/15 and the prior support award dated

7/28/11. See, Petition for Review, 10/13/2016, Klinger v. Geiger, DR-

0116715 (Com. Pl. Northampton County). On October 13, 2015, upon

consideration of the Petition, the Court agreed that the circumstances

warranted review. Id.

The parties were ordered to appear for a modification conference

scheduled for November 16, 2015. On that date, Defendant appeared

with his counsel before Conference Officer Nicole Lockhart (hereinafter

"Lockhart"). See, Summary of Trier of Fact, November 16, 2015,

Klinger v. Geiger, DR-0116715 (Com. Pl. Northampton County).

Plaintiff was not required to appear in person, but submitted 6 months

of pay stubs and an income and expense statement. Id. Plaintiff's

adjusted monthly net income was determined to be $1,797.00. Id. At

the conference, Defendant reported that he was unemployed and that

he last worked in 2011 for a temp agency doing full time, seasonal

work earning $12.00 per hour. Id. Defendant reported that he had

collected unemployment following his last job, but that those

payments terminated in 2012. Id. Defendant reported that he sees a

physician every 2 months, but did not report when the last

appointment had occurred and produced no medical documentation or

physician verification form as set forth in the conference notice. Id.

6
Defendant indicated that he had not filed for Social Security Disability

benefits following his 2011 employment. Id.

Lockhart recommended that Defendant be assessed an earning

capacity from the PA Occupational Wage Survey as a laborer with an

annual salary of $19,530.00. As a result, Defendant was determined

to have an assessed earning capacity resulting in an adjusted monthly

net income of $1,355.00. Id. Lockhart determined that Defendant's

support obligation for the one child at issue would be $317.00 per

month, however, after considering Defendant's multiple family

obligation, and including that in the calculation of support, the

guideline support amount totaled $193.00 per month. Id.

On November 16, 2015, the undersigned entered an Order in

accordance with Lockhart's recommendation. See, Order, 11/16/2015,

Klinger v. Geiger, DR-0116715 (Com. Pl. Northampton County).

Defendant was ordered to pay monthly support in the amount of

$232.001 allocated $193.00 for basic support and $39.00 for arrears.

Id. Plaintiff was ordered to provide medical insurance coverage and

Defendant was held responsible for 43°/o of unreimbursed medical

expenses. Id. The Order specificaHy took into account the multiple

family calculation for Defendant. Id. On November 30, 2015,

Defendant filed a written demand for a de novo hearing, which was

scheduled for January 27, 2016.

7
 On January 27, 2016, Defendant and his counsel appeared

before the undersigned. Plaintiff was represented by Title IV-D

counsel Stephen Mowrey, but did not personally attend. See, Notes of

Transcript (N.T.), De Novo Hearing, 1/27/2016, Klinger v, Geiqer, DR-

0116715 (Com. Pl. Northampton County). On March 7, 2016, we

entered the Order currently before the Superior Court. Our March 7,

2016 Order provided that, following the January 27, 2016 hearing, and

"after a full review of the record" the November 16, 2015 Order of

Court was made final. See, Order, 3/7/2016, Klinger v. Geiger, DR-

0116715 (Com. Pl. Northampton County). The March 7, 2016 Order

specifically noted that the Carbon County Order was registered

effective 10/1/15 and that the Carbon County Court had terminated

the financial obligation but had placed Defendant in a non-financial

obligation status. Id. The March 7, 2016 Order noted that the

Northampton County Domestic Relations Section had petitioned the

Court to review the matter upon accepting the registration of the

Order and that, as was set forth in the November 16, 2015 Order, it

was appropriate to assess Defendant an earning capacity. Id.

On April 1, 2016, Defendant filed his Notice of Appeal of the

March 7, 2016 Order. Also on April 1, 2016, Defendant filed a 1925(b)

Statement. See, Defendant/Appellant Edward Geiger's 1925(b)

Statement, 4/1/2016, Klinger v. Geiger, DR-0116715 (Com. Pl.

8
Northampton). Defendant raised four ( 4) alleged errors, stating as

follows:

1. This Honorable Court committed an error of
law and/or abuse of discretion by failing to
enter a written order consistent with the Order
that this honorable Court stated at the time of
the hearing. Specifically, on the date of the
hearing Defendant intended to present multiple
arguments regarding Plaintiff's support case
against Defendant. In particular, Defendant's
counsel asserted the following:
i. That the support matter was
improperly commenced in violation of Pa.R.C.P.
1910.3;
il. That the matter was barred by
operation of Res Judicata due to the prior
determination by the Carbon County Court of
Common Pleas' decision regarding Defendant's
earning capacity;
iii. That the matter was barred by
operation of Res Judlcata and the Plaintiffs
abandonment of her prior case in Carbon
County;
iv. That despite Defendant requesting a
de novo hearing and the hearing notice
requiring both parties to appear, Plaintiff failed
to appear. Defendant's counsel asserted that
Plaintiff abandoned her appeal and in the
alternative asserted that the trial court compel
Plaintiff to appear;
v. That, alternatively, there was no
evidence of a change in Defendant's earnings
capacity from the prior order of the Court of
Common Pleas of Carbon County.
Upon Defendant raising these arguments and
the Honorable Trial Court reviewing the Order
of the Court of Common Pleas, the Trial Court
stated that the support matter would be
dismissed the Court would direct DRO case
workers to contact the Plaintiff and if Plaintiff
intended to pursue the matter, the case would
be re-listed for a hearing. Nonetheless, the

9
Trial Court failed to enter an order consistent
with these terms stated by the Trial Court at
the time of the conclusion of the hearing.

2. In the alternative, the trial court committed
an error of law and/or abuse of discretion by
failing to consider Defendant's arguments
raised at the de nova hearing, including the
following:
i. That the support matter was
improperly commenced in violation of Pa.R.C.P.
1910.3;
ii. That the matter was barred by
operation of Res Judicata due to the prior
determination by the Carbon County Court of
Common Pleas' decision regarding Defendant's
earning ca pa city;
iii. That the matter was barred by
operation of Res Judicata and the Plaintiffs
abandonment of her prior case in Carbon
County;
iv. That despite Defendant requesting a
de novo hearing and the hearing notice
requiring both parties to appear, Plaintiff failed
to appear. Defendants counsel asserted that
Plaintiff abandoned her appeal and in the
alternative asserted that the trial court compel
Plaintiff to appear;
v. That, alternatively, there was no
evidence of a change in Defendant's earnings
capacity form the prior order of the Court of
Common Pleas of Carbon County;
vi. Defendant also notes that he may
have raised additional arguments had the court
conducted a proper de nova hearing.

3. In the alternative, that the trial court failed
to afford Defendant a full and fair de nova
hearing as required by Pennsylvania Law and
the Rules of Civil Procedure.

4. In the alternative, that the trial court
committed an error of law and/or abuse of
discretion by making findings and conclusions

10
 of law where no testimony or facts of record
exist to support the trial courts determinations
regarding Defendant's and Plaintiff's earnings,
as well as Defendant's support obligation, and
further, by disregarding the prior
uncontradicted findings of the Court of
Common Pleas of Carbon County regarding
Defendant's earning capacity and support
obligation.

See, Defendant/Appellant Edward Geiger's 1925{b) Statement,

4/1/2016, Klinger v. Geiger, DR-0116715 (Com. Pl. Northampton).

We respectfully submit that each of the issues raised by

Defendant are without merit.

STANDARD OF REVIEW

It is well established that the Superior Court's scope of review is

limited in child support cases. See, Haley v. Haley, 549 A.2d 1316,

1317 (Pa. Super. 1988). It is within the trial court's discretion to

determine the amount of a support Order, and its judgment should not

be disturbed on appeal absent a clear abuse of discretion. Id.,

quoting, Ritter v. Ritter, 518 A.2d 319, 322 (Pa. Super. 1986). "'On

appeal, a trial court's child support order will not be disturbed unless

there· is insufficient evidence to sustain it or the court abused its

discretion in fashioning the award."' Id., quoting, Fee v. Fee, 496 A.2d

793, 794 (Pa. Super. 1985). A finding of abuse will be made only

upon a showing of clear and convincing evidence. Id., citing, Koller v.

Koller, 481 A.2d 1218 (Pa. Super. 1984). The role of an appellate

11
court in support proceedings is limited and a finding of an abuse of

discretion should not be made lightly. Hayley, 549 A.2d at 1317,

cttinq, Hartley v. Hartley, 528 A.2d 233 (Pa. Super. 1987); Shindel v.

Leedom, 504 A.2d 353 (Pa. Super. 1986).

DISCUSSION

As set forth above, Defendant raises four (4) alleged errors in

his 1925(b) Statement. The second of those issues contains several

sub-issues. Upon review of the record, we respectfully submit that

each of the alleged errors are without merit and that we did not

commit an error of law or abuse our discretion in entering the March 7,

2016 Order.

A. It was not an error of law or abuse of discretion to enter
the March 7, 2016 Order which was inconsistent with
what was stated at the time of hearing.

Defendant first arques that we committed an error of law or

abused our discretion when we "failed to enter a written Order

consistent with the Order that this Honorable Court stated at the time

of the hearing." See, Defendant's 1925(b) Statement at ,i 1.

Defendant lists a series of arguments that counsel asserted, then

states that "[u]pon Defendant raising these arguments and the

honorable Trial Court reviewing the Order of the Court of Common

Pleas, the Trial Court stated that the support matter would be

dismissed, the Court would direct DRO case workers to contact Plaintiff

12
and if Plaintiff intended to pursue the matter, the case would be re-

listed for a hearing." Id. Defendant concludes his first alleged error

stating that "[n]onetheless, the Trial Court failed to enter an order

consistent with these terms stated by the Trial court at the time of the

conclusion of hearing." Id.

Upon review of the record, Defendant misstates several issues.

Initially, there was never an Order placed on the record at the time of

the hearing. See, N.T., De Novo Hearing, 1/27/2016, Klinger v.

Geiger, DR-0116715 (Com. Pl. Northampton County). Additionally, at

no time did we state on the record that the support matter would be

dismissed. Id. While Defendant is correct that our March 7, 2016

Order of Court was not consistent with the statements in the

courtroom, this does not, in and of itself, instill Defendant's appeal

with merit.

In the course of the de nova hearing, the undersigned stated on

the record as follows:

Here's what I think is the most appropriate
thing to do: we're going to reach out to the
Plaintiff and inquire as to whether or not she is
looking to pursue support at this time against
Mr. Geiger. If she is, we're going to direct that
she file a new petition and at that point in time
I will hear testimony and determine whether I
think it should be retroactive ... because of
whatever her understanding was ... Or
whether or not it she's even interested it
should go from this day forward.

13
N.T., De Novo Hearing, 1/27/2016 at 10: 11-11: 1, Klinger v, Geiger,

DR-0116715 (Com. Pl. Northampton).

While not included in the transcript of the de novo hearing, the

full domestic relations file was made part of the record for the de nova

hearing without objection. Following the presentation of argument by

Defendant's counsel at the hearing, the undersigned conducted a

detailed review of the Domestic Relations file. As was discussed at the

hearing, a Domestic Relations representative did, in fact, contact

Plaintiff and she indicated that she was still seeking support from

Defendant. Furthermore, upon review of the file, the Court learned

that a full and complete conference had already been held and

therefore no remand was needed, or appropriate. The Court

determined the assessment of income for Defendant was appropriate.

Upon review of the file, it was noted that the July 28, 2011

Order from Carbon County, the last Order that included a financial

obligation by Defendant, had included a net monthly income for

Defendant of $1,146.04. See, Order of Court, 7/28/2011, Klinger v.

Geiger, 136 DR 11 (Com. Pl. Carbon County). As discussed above, on

March 23, 2015, the Carbon County Court terminated the July 28,

2011 Order without prejudice and entered the "Suspended Order/

Non-Financial Order". That Suspended Order I Non-Financial Order

provided that the financial obligation was to be reviewed/conferenced

14
for determination upon a list of events and required Defendant to

immediately report to domestic relations any changes to his

employment, income, assets or ability to work. See, Suspended Order

/ Non-Financial Order, 3/23/2015, Klinger v. Geiger, 136 DR 11 (Com.

Pl. Carbon County). That Order also noted that "[i]f it is determined

that defendant has committed fraud or otherwise materially

misrepresented his/her income or assets, and/or if the defendant fails

to comply with any provision of this order, the prior order and arrears

may be reinstated." Id. On March 23, 2015, the Carbon County Court

also entered the "Order - Work Search and Report". That Order

required Defendant to comply with the Job Search Order until further

instructed by Domestic Relations and required Defendant to submit his

first form reporting his job search efforts no later than April 17, 2015.

See, Order - Work Search and Report, 3/23/20151 _136 DR 11 (Com.

Pl. Carbon County). That Order specifically notes that ''[f]ailure to

comply with any of the provisions of this Order may lead to the

initiation of additional proceedings against you to determine whether

you should be held in contempt of court." Id.

The Northampton County Domestic Relations file includes a

PACSES - Production - Note dated October 8, 2015 at 1: 12 p.m. that

notes that the case was reviewed and stated verbatim, as follows:

per review case to be scheduled for conference
on drs petition for review. case was nfob'd

15
 March 2015 due to deft having no income.
Unknown if deft is employed or what efforts
have been made to secure employment.
Additionally, last monetary order addressed
summer visitation which may have changed.

See, PA PACSES - Production - Note, 10/8/2015, Klinger v. Geiger,

DR-116715 (Com. Pl. Northampton). The Summary of Trier of Fact

prepared by Lockhart does not include any indication that Defendant

had been working or that he had even attempted to locate new

employment. See, Summary of Trier of Fact, 11/16/2016, Klinger v.

Geiger, DR-116715 (Com. Pl. Northampton). Defendant reported he

had last worked in 2011 for a temp agency doing full time seasonable

work in warehouses. Id. at 2. He had been earning $12.00 per hour

at that job. Id. Defendant reported that he had received

unemployment benefits that ceased in 2012. Id. Defendant indicated

that he sees a physician every 2 months, but did not state that he was

unable to work. Id. Defendant reported that he had not filed for

Social Security Disability benefits since his unemployment benefits

terminated. Id. Defendant did not present any documentation from a

doctor of any disability and did not have a physician verification form.

Id. Lockhart noted that the "parties were under a support obligation in

Carbon County that was set to a non-financial obligation and

defendant was placed on a work search program in March 2015

16
wherein he was required to actively seek employment and provide

updates regarding his efforts." Id. at 3.

Based upon these facts, Lockhart recommended Defendant be

assessed an earning capacity, which we deemed appropriate.

Defendant was assessed an earning capacity of $19,530.00 per year

as an entry level "Laborer & Freight, Stock and Material Mover" as set

forth in the Pennsylvania Occupational Wages survey for the

Northampton County labor market area. That income for Defendant

was utilized to run the support calculations using the formula set forth

in Pa.R.C.P. No. 1910.16-1 et seq. Defendant also received the

benefit of the multi family calculation provided for in Pa.R.C.P. No.

1910.16-7.

Based upon the above, it was not an error of law or abuse of

discretion to enter the March 7, 2016 Order making the November 16,

2015 Order final despite what was said at the de nova hearing.

Counsel for Defendant was permitted to present argument to the Court

and those arguments, as will be discussed below, were considered.

The record as a whole, including the Domestic Relations file, made it

clear to the Court that the November 16, 2015 Order was properly

entered and that Defendant should be assessed an earning capacity for

the calculation of child support. Therefore, it is respectfully suggested

that the first alleged error raised by Defendant is without merit.

17
 B. Each of Defendant's issues raised at the de nova hearing
were considered in entering our March 7, 2016 Order.

Defendant's second alleged error is that we failed to consider

Defendant's arguments raised at the de nova hearing. As set forth in

his 1925(b) Statement, Defendant raises five (5) specific arguments

we allegedly failed to consider, however, each of these issues was

considered in the course of entering our March 7, 2016 Order. We will

address each of the arguments Defendant asserts we failed to consider

in turn.

First, Defendant argues that this matter was improperly

commenced in violation of Pa.R.C.P. No. 1910.3. Contrary to

Defendant's assertion, this matter was not improperly commenced in

violation of Pa.R.C.P. No. 1910.3. That rule provides, in relevant part,

as follows:

(a) An action may be brought
(1) by a person, including a minor parent or a
minor spouse, to whom a duty of support is
owing, or
(2) on behalf of a minor child by a person
having custody of the child, without
appointment as guardian ad !item, or
(3) on behalf of a minor child by a person
caring for the child regardless of whether a
court order has been issued granting that
person custody of the child, or
(4) by a public body or private agency having
an interest in the case, maintenance or

18
 assistance of a person to whom a duty of
support is owing, or
(5) by a parent, guardian or public or private
agency on behalf of an unemancipated child
over eighteen years of age to whom a duty of
support is owing, or
(6) by any person who may owe a duty of
support to a child or spouse. If the person to
whom a duty of support may be owed does not
appear, the action may be dismissed without
prejudice for the petitioner to seek further
relief from the court.

Pa.R.C.P. No. 1910.3(a). The instant support matter was commenced

in 2007 by Plaintiff, Tricia Klinger, in Schuylkill County. The matter

was transferred to Carbon County then subsequently transferred to

Northampton County. It is not disputed that that Plaintiff is the

mother of the child subject to the support order and that Plaintiff has

primary physical custody of the child. Clearly, Plaintiff is a proper

party and permitted to file a support action under Pa.R.C.P. No.

19103. The instant matter was not improperly commenced in violation

of Pa.R.C.P. No. 1910.3 and this issue is without merit.

Secondly, this matter is not barred by Res Judicata due to the

prior determination by Carbon County regarding Defendant's earning

capacity, as argued by Defendant. "Under the doctrine of res judicata

issue preclusion, when an issue of fact or of law is actually litigated

and determined by a valid final judgment, and determination of the

issue was essential to judgment, the determination on that issue is

conclusive in a subsequent action between the parties, whether on the

19
same or a different claim." McNe;t v. Owens-Corning, 680 A.2d 1145,

1147-48. (Pa. 1996). The Pennsylvania Supreme Court in McNeil

noted that 11[w]e have interpreted the 'modern doctrine of res judicata'

as incorporating both claim preclusion, or traditional res judicata, and

issue preclusion, or traditional collateral estoppel." Id. at fn. 2. The

traditional doctrine of collateral estoppel, or issue preclusion, "holds

that when a particular issue has already been litigated, further action

on the same issue is barred." Id.

In the instant matter, the Carbon County Court entered the

March 23, 2015 Orders set forth at length above. The Carbon County

Court determined that Defendant had no known income or assets and

that there was no reasonable prospect that Defendant would be able to

pay in the foreseeable future. See, Suspended Order/ Non-Financial

Order, 3/23/2015, Klinger v. Geiger, 136 DR 11 (Com. Pl. Carbon

County). That Order, however, specifically provided that the financial

obligation could be reviewed/conferenced for further determination in

the future. Id. The Order also specifically provided that if Defendant

failed to comply with any provision of the order, the prior Order and

arrears could be reinstated. Id. The Carbon County Court also

specifically required Defendant to participate in a Work Search
Program. See, Order - Work Search and Report, 3/23/2015, Klinger

v. Geiger, 136 DR 11 (Com. Pl. Carbon County). The goa! of the work

20
search program was obviously to help Defendant obtain employment

so that the case could then be reviewed and Defendant could pay

support for his child. The Order - Work Search and Report entered by

the Carbon County Court specifically noted that failure to comply with

any provisions of the order may lead to the initiation of additional

proceedings. Id. Pursuant to the Order - Work Search and Report,

Defendant was required to comply with the job search order until

further instructed and was required to submit his first form to

Domestic Relations by April 17, 2015.

There was no issue preclusion or claim preclusion in any of the

Orders entered by the Carbon County Court. To the contrary, those

Orders dealt with the status of the case as of March 23, 2015 and

specifically put Defendant on notice that his financial status could and

would be reviewed in the future. Upon receipt of the file and

acceptance of the transfer of the file under the Intrastate Family

Support Act ("IFSA"), 23 Pa.C.S.A. § 8101 et seq., Northampton

County Domestic Relations specifically noted in the file that there was

nothing in the record regarding Defendant's employment or the efforts

made by Defendant to secure employment under the Carbon County

Order requiring him to seek employment. See, PA PACSES -

Production - Note, 10/8/2015, Klinger v. Geiger, DR-116715 (Com. Pl.

Northampton). Northampton County Domestic Relations also noted

21
that the last monetary Order had addressed summer visitation, which

may have changed in the interim since that Order. Id. Given that we

had no documentation that Defendant had complied with the Work

Search Order from Carbon County, it was clearly within our purview to

conference the matter and determine the status of the case. Once the

matter was scheduled for a conference, Defendant and his counsel

appeared before Ms. Lockhart for the conference. Defendant provided

no documentation as to any disability and gave no explanation as to

why he could not work. Under the circumstances it was clearly

appropriate, particularly given Defendant's failure to comply with the

Work Search Order from Carbon County, to come to the conclusion

that Defendant was capable of working and assess him an earning

capacity.

Thirdly, the matter was not barred by Res Judicata and the

Plaintiff's abandonment of her prior case in Carbon County. Contrary

to Defendant's assertion, the record does not reveal that Defendant

abandoned her case in Carbon County. Counsel for Defendant noted

several times during the de nova hearing that Plaintiff had withdrawn

her support claim or withdrawn her appeal. See, N.T., De Novo

Hearing, 1/27/2016 at 5:13-15; 6:2; 6:8; 7:15-20; 7:24-8:2; 8:20.

There is a critical distinction to be made between Plaintiff withdrawing

her support claim and Plaintiff withdrawing her appeal. The Findings

22
of Fact prepared by Carbon County Hearing Officer Diehl are critical,

and instructive on this point. As noted by Ms. Diehl, on April 91 2015,

Plaintiff filed a timely appeal of the March 23, 2015 Orders. See,

Domestic Relations Office Hearing Officer's Report, 6/2/2015 at ,i 4,

Klinger v. Ge;ger, 136DR11 (Com. Pl. Carbon County). Plaintiff

withdrew her appeal of the March 23, 2015 Orders on May 29, 2015.

Id. at ,i 8. Given that neither party resided in Carbon County, the case

was to be transferred to Northampton County, which "should aid in

enforcement of any future child order which may be entered between

the parties." Id. at ,i 9. Plaintiff did not withdraw her claim for

support or discontinue the support action. Plaintiff merely withdrew

her appeal of the March 23, 2015 Orders which placed Defendant into

a non-financial obligation status and required him to enter the job

search program. The July 30, 2015 Order from the Carbon County

Court specifically notes that "this case is currently open as an N FOB

(Non-Financial Obligation)." See, Order, 7/30/2015, Klinger v. Geiger,

136 DR 11 (Com. Pl. Carbon). That Order noted that the Defendant

was under a Work Search and Report Order and the matter was to be

transferred to Northampton County. The claim for support was never

abandoned and never discontinued. The case was never closed and

was not resolved. Defendant was under an ongoing non-financial

obligation and was still required to comply with the work search order

23
until directed otherwise. At no point did Plaintiff abandon her claim,

therefore, this issue is without merit.

The fourth argument raised by Defendant is that "despite

Defendant requesting a de novo hearing, and the hearing notice

requiring both parties to appear, Plaintiff failed to appear. Defendant's

counsel asserted that Plaintiff abandoned her appeal, and in the

alternative, asserted that the trial court compel Plaintiff to appear."

See, Defendant's 1925(b) Statement at~ 2 (iv). As discussed above,

Plaintiff did not abandon her support claim. Furthermore, despite

Defendant's claim, Plaintiff was not required to attend the hearing.

Pursuant to IFSA, specifically 23 Pa.C.S.A. § 8311, entitled "Special

rules of evidence and procedure", "[tjhe physical presence of the

petitioner in a responding tribunal is not required for the

establishment, enforcement or modification of a support order or the

rendition of a judgment determining parentage." See, 23 Pa.CS.A. §

8311(a). The de nova hearing was for the enforcement or

modification of a support order. Plaintiff was not required to be

present. The Title IV-D attorney, Steve Mowrey was present and

represented the interests of Plaintiff and the Domestic Relations

Section. The undersigned specifically explained to Defendant and

counsel that Plaintiff was not required to be present. See, N.T., De

Novo Hearing, 1/27/2016 at 2:10-13; 2:23-24. We did, however,

24
specifically give Defendant and his counsel the option to continue the

hearing so that Plaintiff could be available to testify by telephone. Id.

at 3:2-9. Defendant, through his counsel, chose to proceed with the

hearing. Id. at 3:10.

Based upon the above, the fourth argument raised by Defendant

that we allegedly failed to address, is without merit and does not

require any form of relief. Plaintiff was not required to be present for

the hearing, Plaintiff never abandoned her appeal, and Defendant

chose not to continue the hearing despite the Court's offer to do so.

The fifth argument Defendant alleges we failed to consider ts

that there was no evidence of a change in Defendant's earning

capacity from the prior order of the Carbon County Court. This issue is

without merit. The Carbon County Court indicated that as of March

23, 2015, Defendant did not have any assets and did not have a job.

The Carbon County Court required defendant to look for a job and

submit reports to the Court regarding that search. The record is

devoid of any evidence that Defendant looked for a job or in any way

complied with the Order to engage in a job search. Defendant told our

Conference Officer, Ms. Lockhart, that he was not employed, that he

had not worked since 2011, had not received unemployment since

2012 and had not applied for any form of Social Securtty Disability.

See, Summary of Trier of Fact, November 16, 2015, Klinger v, Geiger,

25
DR-0116715 (Com. Pl. Northampton County). While he indicated he

had medical issues and saw a doctor regularly, Defendant did not

present any medical evidence and failed to submit a physician

verification regarding his inability to work.

Pa.R.C.P. No. 1910.16-2 governs the calculation of net income

for support purposes. That section provides as follows:

( 4) Earning Capacity. If the trier of fact
determines that a party to a support action has
willfully failed to obtain or maintain appropriate
employment, the trier of fact may impute to
that party an income equal to the party's
earning capacity. Age, education, training,
health, work experience, earnings history and
child care responsibilities are factors which
shall be considered in determining earning
capacity. In order for an earning capacity to be
assessed, the trier of fact must state the
reasons for the assessment in writing or on the
record. Generally, the trier of fact should not
impute an earning capacity that is greater than
the amount the party would earn from one full-
time position. Determination of what
constitutes a reasonable work regimen
depends upon all relevant circumstances
including the choice of jobs available within a
particular occupation, working hours, working
conditions and whether a party has exerted
substantial good faith efforts to find
employment.

Pa.R.C.P. No. 1910.16-2.

Upon review of the record, it is clear that Defendant has "willfully

failed to obtain or maintain appropriate employment". It is well

established that "[c]hild support is a shared responsibility requiring

26
both parents to contribute to the support of their children in

accordance with their relative incomes and ability to pay." Portugal v,

Portugal, 798 A.2d 246, 249-250 (Pa. Super. 2002), quoting, Kersey

v. Jefferson, 791 A.2d 419, 423 (Pa.Super.2002). "Where a party

willfully fails to obtain appropriate employment, his or her income will

be considered to be equal to his or her earning capacity." Id. (Internal

citations omitted).

Since 2011, Defendant has not worked and the record is devoid

of any documentation of Defendant even attempting to find work,

despite the Carbon County Court's Order requiring him to do so.

Defendant failed to submit any reports regarding his job search to

Carbon or Northampton County. Defendant also failed to submit any

medical documentation or physician verification establishing a

disability that would preclude him from working. When he did last

work, Defendant worked in a warehouse earning $12.00 per hour.

Working 40 hours per week at $12.00 per hour would result in a gross

annual income of $24,960.00. Therefore, we actually assessed

Defendant at a lower income than he had previously received.

Based upon the above, Defendant was properly assessed an

earning capacity.

C. Defendant received a full and fair de novo hearing.

27
 The third alleged error raised by Defendant is that "the trial

court failed to afford Defendant and full and fair de nova hearing as

required by Pennsylvania Law and the Rules of Civil Procedure." See,

Defendant's 1925(b) Statement at~ 3. This argument is without

merit.

Pa.R.C.P. No. 1910.11 provides the procedure for child support

matters in Northampton County. In accordance with Rule 1910.ll(e),

following the November 16, 2015 conference with Ms. Lockhart, the

Court entered the November 16, 2015 Order in accordance with

Lockhart's recommendations. Rule 1910.1 l(i) provides as follows:

If a demand is filed, there shall be a hearing de
nova before the court. The domestic relations
section shall schedule the hearing and give
notice to the parties. The court shall hear the
case and enter a final order substantially in the
form set forth in Rule 1910.27(e) within sixty
days from the date of the written demand for
hearing.

Pa.R.C.P. No. 1910.ll(i).

"Under Pa.R.Civ.P. 1910.11 a litigant has an absolute right to

his/her day in court should it be desired ... that hearing shall be de

nova and not limited in scope." Warner v. Pollack, 644 A.2d 747, 751

(Pa. Su per. 19 94). "De nova review entails, as the term suggests, fu II

consideration of the case anew. The reviewing body is in effect

substituted for the prior decision maker and red ecid es the case."

D'Arciprete v. D'Arciprete, 470 A.2d 995, 996 (Pa. Super. 1984,

28
quoting, Commonwealth v, Gussey, 466 A.2d 219, 222 (Pa. Super.

1983). Under the procedures of Rule 1910.11, the lower court has

discretion in the de nova hearing to consider all the facts in

determining whether to accept, reject or modify the master's

recommendation. Id.

The parties in the instant matter were provided notice of the de

nova hearing following Defendant's demand. Defendant and his

counsel were present for the January 27, 2015 de nova hearing and

Plaintiff's representative was present. After the Court informed

counsel for Defendant that Plaintiff was not required to be present, we

gave Defendant the opportunity to continue the hearing and to require

Plaintiff to appear via telephone. See, N.T., De Novo Hearing,

1/27/2016 at 2:23-3:6. Counsel declined that opportunity. Id. at

3: 10. Counsel for Defendant was then permitted to present his

argument regarding the Carbon County proceedings and Defendant's
-
position that the matter had been withdrawn. Id. at 5:2-8:20.

Counsel was also permitted to address his res judicata argument. Id.

at 8: 20-9: 6. Counsel also raised the argument that a change in

circumstances was required to enter the November 16, 2015 Order

assessing Defendant an earning capacity. Id. at 9:6-15.

Following the hearing, we considered the arguments made by

counsel for Defendant and conducted a thorough review of the record

29
including the Domestic Relations file. We then entered the Order of

March 7, 2016. Defendant received his day in Court and we

considered all of the facts of record in entering the March 7, 2016

Order. Defendant's third alleged error is without merit and should be

dismissed.

D. The record was sufficient to justify the March 7, 2016
Order.

Defendant's final alleged error is as follows:

the trial court committed an error of law
and/or abuse of discretion by making findings
and conclusions of law where no testimony or
facts of record exist to support the trial court's
determinations regarding Defendant's and
Plaintiff's earnings, as well as Defendant's
support obligation, and further, but
disregarding the prior, uncontradicted findings
of the Court of Common Pleas of Carbon
County regarding Defendant's earning capacity
and support obligation.

See, Defendant's 1925(b) Statement at ,i 4.

Defendant's final alleged error is essentially a restatement of

several aspects of the previous issues raised. As set forth above, the

Northampton County Domestic Relations file is part of the record in

this matter. There are significant facts of record and testimony

included in the record, lncludlnq the testimony presented at the

conference on November 16, 2015 along with all of the documents

submitted by the parties for review. Those documents submitted

included 6 months of statements establishing Plaintiff's income,

30
Plaintiff's income and expense statements and Defendant's income and

expense statements. Defendant appeared at the conference on

November 16, 2015 and provided significant testimony to Conference

Officer Lockhart. See, Summary of Trier of Fact, 11/16/2015.

We also reviewed the documents transferred to Northampton

County by the Carbon County Court. As discussed above, the Carbon

County Court's findings regarding Defendant's earning capacity and

support obligation were made as of that date. The Carbon County

Court clearly anticipated that Defendant's status, earning capacity and

support obligation would be reviewed and reconsidered in the future.

In fact, Carbon County specifically required Defendant to look for a job

and submit reports regarding his job search so that Defendant's

support obligation could be reevaluated.

Based upon the above, Defendant's final alleged error is without

merit. There was a significant factual record to support our March 7,

2016 Order.

CONCLUSION

It is respectfully submitted that Defendant's appeal of our March

7, 2016 Order is without merit. After this matter was transmitted to

Northampton County, pursuant to !FSA, Northampton County

Domestic Relations filed a Petition to Review the non-financial status of

the case. The matter was conferenced with Conference Officer

31
Lockhart and Defendant and his counsel appeared at the conference.

Testimony was taken and documents were received. Based on the

record, Defendant was assessed an earning capacity and the

November 16, 2015 Order was entered. After Defendant's demand, a

de nova hearing occurred. Following that hearing, and a thorough

review of the record, we entered the March 7, 2016 Order making the

November 16, 2015 Order final.

Although the March 7, 2016 Order was not consistent with the

informal discussion that occurred at the de nova hearing, following a

thorough review of the entire record, it was determined that the March

7, 2016 Order was appropriate. Defendant was given a full and fair

opportunity to present his arguments through counsel and,

alternatively, Defendant was afforded the opportunity to request a

continuance. Defendant and his counsel chose to proceed with the

hearing. In entering our March 7, 2016 Order, each of the arguments

raised by Defendant was considered, however, none of those

arguments were persuasive. Defendant received a full and fair de

nova hearing and the proper findings of fact and conclusions of law

were reached to enter the March 7, 2016 Order.

It is respectfully submitted that Defendant's appeal is without

merit and should be denied.

BY THE COURT

32
 fo;,Ja... A~uf2.-,
PAULA A. ROSCIOLI, J.

33