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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K. W. K. : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
v. :
:
M. L. L. :
:
:
: No. 1700 MDA 2016
Appeal from the Order Entered September 12, 2016
In the Court of Common Pleas of York County
Domestic Relations at No(s): 3057 SA 2004
DRO: 85452
PACSES 947106911
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 31, 2017
Appellant K.W.K.1 appeals the Order entered September 12, 2016,
directing that Appellee M.L.L. is not obligated to pay child support. After
careful review, we affirm.
The parties have one child together for whom Appellee had been
obligated since 2008 to provide $109 per month in child support to
*
Former Justice specially assigned to the Superior Court.
1
Because this is a child support matter, we are using only initials to identify
the parties. We have changed the caption accordingly.
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Appellant.2 On August 5, 2016, the Domestic Relations Office held an
administrative review of that support Order. Appellee was not in
attendance, but the Domestic Relations Officer (“DRO”) who presided at the
conference had a physician’s medical verification form indicating that
Appellee is fully disabled due to mental illness. The DRO entered a
nonfinancial obligation Order changing Appellee’s child support obligation
from $109.00 per month to $0.
Appellant requested a de novo support hearing before the court of
common pleas. On September 8, 2016, the court held the hearing at which
the solicitor for the Domestic Relations Office appeared on behalf of
Appellant. Appellee appeared pro se. The DRO also attended the hearing.
Appellant’s counsel acknowledged Appellee’s disability, but argued that
Appellee has had the disability for years and has been able to work off and
on. Counsel also acknowledged that the medical verification form indicating
Appellee’s full disability had been presented at the administrative
conference, but “question[ed] what weight can be given to that
determination or document.” N.T., 9/8/16, at 5.
Appellee testified that her psychiatrist considered her fully-disabled,
and that she was awaiting the resolution of her appeal of the denial of social
security disability benefits. She further stated that she had just recently
2
According to Appellant’s counsel, the prior Order was based on a judge’s
determination that Appellee had an earning capacity of $7.00 per hour at 40
hours per week.
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(i.e., four days before the de novo hearing) started working 25 hours per
week at La Quinta Hotels earning $8.00 per hour. Id. at 3-5. Appellant did
not object to any of Appellee’s testimony.
In response to the court’s inquiry, the DRO showed the judge a copy of
the medical disability form dated May 16, 2016, indicating that Appellee is
fully disabled at least through the end of the year 2016. Appellant did not
object. Again in response to court inquiry, the DRO stated that at Appellee’s
current part-time wage of $8 per hour, her annual income is $10,400, which
is below the self-support reserve (“SSR”). Appellant did not object to any of
the DRO’s testimony.
Appellant stated that he did not agree that the prior Order should be
changed because Appellee has been able to work full-time in the past, and
he is the only person supporting his son. Id. at 7.
The court concluded that because Appellee’s income does not exceed
the SSR, the “bare minimum a person needs to support themselves,” a
nonfinancial obligation Order was proper. Id. at 7. The court further
observed that in light of the psychiatrist’s verification, “[t]he fact that
[Appellee] is able to work part-time certainly does not raise an implication
that she can work full-time[.]” Id. at 5. The court informed Appellee that
she is required to notify the Domestic Relations Office if her income changes.
The court entered the nonfinancial obligation Order on September 12, 2016.
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Appellant timely appealed. Both the trial court and Appellant complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the lower court erred by holding the
Appellee/Defendant to actual part-time earnings rather than a
full time earning capacity based upon a physician’s
verification form that was contradicted by
Appellee’s/Defendant’s employment and denial of social
security?
2. Whether the court erred in inappropriately relying on a
physician’s verification form that was not admitted into
evidence pursuant to Pa.R.Civ.P. 1910.29?
Appellant’s Brief at 4 (misspellings corrected; some capitalization
omitted).
Appellate review of a child support order is very narrow. We may
reverse a support order only if we find that the Order cannot be sustained on
any valid ground. Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008).
“The decision of the trial court will not be reversed absent an abuse of
discretion or an error of law.” Maue v. Gilbert, 839 A.2d 430, 432 (Pa.
Super. 2003) (citations omitted).
Appellant first contends that the trial court erred in giving the
psychiatrist’s verification form, dated four months prior to the de novo
hearing, any weight because Appellee testified that she was working part-
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time. See Appellant’s Brief at 8. Appellant is challenging the weight and
credibility determinations made by the trial court.3
When considering issues of credibility and weight of the evidence, “this
Court must defer to the trial judge who presided over the proceedings and
thus viewed the witnesses first hand.” Mackay v. Mackay, 984 A.2d 529,
533 (Pa. Super. 2009) (citation and quotation omitted).
When the trial court sits as fact finder, the weight to be assigned
the testimony of the witnesses is within its exclusive province, as
are credibility determinations, [and] the court is free to choose
to believe all, part, or none of the evidence presented. [T]his
Court is not free to usurp the trial court's duty as the finder of
fact.
Id. (citations and quotation marks omitted).
Contrary to Appellant’s implication, in reaching its decision the trial
court considered not only the physician verification form, but also the
testimony of the parties and the DRO. The court’s Order provides:
3
Appellant also states that Appellee “failed to sustain her burden of proving
that her disability caused a change in circumstance to warrant modification
of the support order.” Appellant’s Brief at 9, citing Caswell v. Caswell, 421
A.2d 762 (Pa. Super. 1980). That one sentence is the sum and substance of
what appears to be a challenge to the sufficiency of the evidence. In
addition to failing to develop the argument or to provide any analysis,
Appellant failed to raise this challenge in his Pa.R.A.P. 1925(b) statement.
We, thus, conclude any sufficiency challenge is waived. See Pa.R.A.P.
302(a) (providing that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”); Pa.R.A.P. 2119 (delineating
appellate briefing requirements); MacNutt v. Temple Univ. Hosp., Inc.,
932 A.2d 980, 992 (Pa. Super. 2007) (“Appellants have the burden of
developing their claims on appeal; arguments that are not appropriately
developed are waived.”).
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. . . [T]he parties having appeared and upon testimony taken,
the Court has ascertained that the Defendant is disabled. In
spite of that, she is working part-time but the amount that she is
making does not exceed the reserve and, accordingly, there is
no basis for a charging order. Accordingly, the plaintiff’s
[Appellant’s] appeal is dismissed and the order continues to be a
nonfinancial obligation order with a charging order of 0.
Trial Ct. Order, entered 9/12/16.
In light of our highly deferential standard of review, we decline to
reweigh the evidence upon which the trial court based its factual
determination. We conclude that there are valid grounds upon which to
sustain the court’s determination. Accordingly, no relief is due on
Appellant’s first issue.
Appellant next contends that the “lower court erred by relying on a
Physician Verification Form that was never admitted into evidence, and
specifically not admitted into evidence in compliance with Pa.R.Civ.P.
1910.29.”4 Appellant’s Brief at 9. He also avers that because the form was
4
Pa.R.C.P. No. 1910.29, entitled “Evidence in Support Matters,” provides, in
relevant part:
If the matter proceeds to a record hearing and the party wishes
to introduce the completed Physician Verification Form into
evidence, he or she must serve the form on the other party not
later than 20 days after the conference. The other party may file
and serve an objection to the introduction of the form within 10
days of the date of service. . . . In the event that the record
hearing is held sooner than 30 days after the conference, the
trier of fact may provide appropriate relief, such as granting a
continuance to the objecting party.
Pa.R.Civ.P. 1910.29(b)(2) (emphasis added).
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“never introduced into evidence at the hearing, … Appellant[] did not have
an opportunity to object under Rule 1910.29(b)(2).” Appellant’s Brief at 11.
We note initially that it was not a party to the proceeding that
presented the document to the court; rather it was the DRO. Accordingly,
Rule 1910.29 is arguably not applicable.
Further, “[i]t is axiomatic that, in order to preserve an issue for
review, litigants must make timely and specific objections during trial[.]” In
re R.P., 957 A.2d 1205, 1222 (Pa. Super. 2008) (citation omitted);
Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be
considered for first time on appeal).
In its Pa.R.A.P. 1925(a) Opinion, the trial court emphasizes that
Appellant never objected to the admission of evidence at the de novo
hearing. The record indicates that there were no exhibits admitted during
the hearing. However, it was Appellant’s attorney who first informed the
court that a medical disability verification form had been submitted at the
administrative review conference. N.T. at 2. In addition, when the court
asked the DRO if a copy of a medical disability form had been submitted at
the conference, Appellant did not object. Instead, the following exchange
occurred:
DRO: Last form received was on May 18, 2016. Next form is due
September – this month. There is a copy of a form in here
dated May 16, 2016, which was before the conference.
Appellant’s Attorney: I don’t think it was submitted at the
conference.
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DRO: Do you want to see a copy of it? This is what I have.
The Court: Thank you.
****
Id. at 4.
At no time did Appellant object to the DRO’s testimony, the court’s
review of the form, or Appellee’s testimony. Further, at no time did
Appellant’s counsel assert an objection based on the existence of Rule
1910.29. Contrary to Appellant’s contention raised here, he had numerous
opportunities to object to testimony about the form and the court’s review of
the form. He failed to do so. Such failure to raise this issue before the trial
court resulted in waiver.
Moreover, it was in fact Appellant who first brought the existence of
the form to the court’s attention, and only queried the weight the court
should give the form.
Accordingly, we conclude that Appellant’s challenge to the court’s
consideration of the form or testimony about the form has been waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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