J-A21032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIC JOHN ASKINS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LISA ANN DAVISON
Appellant No. 1695 WDA 2016
Appeal from the Order Entered October 5, 2016
In the Court of Common Pleas of Erie County
Domestic Relations at No: NS200901183/PACSES NO: 937110996
BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 9, 2017
Appellant, Lisa Ann Davison (“Mother”), appeals pro se from the
October 5, 2016 order denying her petition for modification of her child
support obligation. We affirm.
The record reflects that Appellee, Eric John Askins (“Father”), filed a
complaint for support of the parties’ minor child on December 5, 2011. On
April 23, 2012, the trial court ordered Mother to pay $649.11 per month in
support, plus $90.00 in arrears. Mother has since filed several modification
petitions alleging she sustained injuries in various accidents and thus was
unable to work. In the instant modification petition, filed June 30, 2016,
Mother alleged that she is out of work and that a car accident aggravated
her existing injuries. The trial court assessed Mother’s petition as follows:
J-A21032-17
Mother further testified that a January 2016 accident
aggravated her neck and back injuries. Mother, however, is not
credible. Since institution of the support action, Mother has
repeatedly petitioned to terminate or suspend her support
obligations on the basis of inability to work and, repeatedly, her
own evidence has contradicted her position. In 2012, Mother
petitioned for suspension of her support obligation alleging
inability to work. The court denied her petition when the
evidence showed that Mother, who had been denied disability
benefits, was released from her physician to return to work. In
2014, Mother requested that the court terminate her support
obligation as she was medically unable to work as the result of
an accident. The evidence revealed, however, that Mother was
released by her physician to return to work, she was fully active
and her employer denied her disability claims. In 2015, Mother
requested that her support obligation be suspended as she was
unable to work due to injuries from another accident. The
evidence showed, however, that Mother continued to work for
three months after the allegedly disabling accident, forgot to see
her doctor until that time, and actively engaged in Tae Kwan Do
during the time that she alleged she was unable to work. With
regard to Mother’s present allegation of a fourth debilitating
accident, she presented a Physician Verification Form, dated July
29, 2016, in support of her position that she is unable to work.
As with the accident in 2015, it is clear that, once again, Mother
did not seek treatment until two months after the alleged
accident. Moreover, the statements written on the Form reflect
Mother’s perception, rather than the results of an independent
evaluation. Specifically, in the section discussing Mother’s
inability to earn income, there is a handwritten statement
indicating “Pt stated medical condition started May 11, 2015,
effecting [sic] earning potential.” As further detailed above,
Mother is not credible. In this regard, the Court did not give the
Physician Verification Form any weight.
Trial Court Opinion, 12/19/16, at 6-7.
On appeal, Mother argues the trial court erred in denying her
modification petition because she is unable to work and because she no
longer has a job. Our standard of review is well-settled:
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J-A21032-17
The amount of a support order is largely within the
discretion of the trial court, whose judgment should not be
disturbed on appeal absent a clear abuse of discretion. An abuse
of discretion is not merely an error of judgment, but rather a
misapplication of the law or an unreasonable exercise of
judgment. A finding that the trial court abused its discretion
must rest upon a showing by clear and convincing evidence, and
the trial court will be upheld on any valid ground.
Portugal v. Portugal, 798 A.2d 246, 249 (Pa. Super. 2002).
The Domestic Relations Code permits modification of support orders if
the requesting party demonstrates a substantial change in circumstances.
23 Pa.C.S.A. § 4352(a). Rule 1910.19 of the Pennsylvania Rules of Civil
Procedure governs modification petitions. We have reviewed the record, the
applicable law, and Mother’s pro se brief.1 We conclude that the trial court’s
December 19, 2016 opinion accurately addresses Mother’s arguments. We
affirm the October 5, 2016 order on the basis of that opinion, and we direct
that a copy of the opinion be filed along with this memorandum.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
____________________________________________
1
Father appeared pro se before the trial court and did not file a brief with
this Court.
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J-A21032-17
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OPINION
December Jii 2016: This child support matter is before the Court on Lisa A. Davison's
(hereinafter "Mother") Notice of Appeal. Mother appeals this Court's October S, 2016 Order
which denied her Petition for Modification of an Existing Support Order.
PROCEDURAL HISTORY
Eric J. Askins (hereinafter "Father"), on December 15, 2011, filed a Complaint for
Support of the parties' minor child. Following a support conference and a de nova hearing, an
April 23, 2012 Order established Mother's monthly support obligation at $649.11, plus $90.00
for arrears. Mother filed an appeal, which was dismissed on January 18, 2013. See Davison v.
Askins, 771 WDA 2012.
While her appeal was pending, Mother, on October 26, 2012, filed a Petition for
Modification requesting suspension of the child support order "as [Mother] is currently unable to
work." Following a conference, the conference officer issued a December 17, 2012 Summary of
Trier of Fact indicating:
The defendant stated that her short term disability benefits were terminated as of
11/27/12 as the defendant was released from a physician to return to work under
restrictions. The defendant further stated that a different physician has told her
otherwise as she still claims to be unable to work. However, no documentation
was presented that states the defendant is unable to work. The plaintiff is not in
agreement to suspend the order.
Upon recommendation of the conference officer, a December 17, 2012 Interim Order of Court
was entered maintaining Mother's monthly child support obligation at $649.11, plus arrears.
Mother filed a Demand for Court Hearing, alleging that her income is an issue as she is unable to
work due to medical reasons. Following a de nova hearing, this court issued a February 5, 2013
Order making the December 17, 2012 Order a final order. No appeal was filed.
One month later, on March 4, 2013, Mother filed a Petition for Modification of an
Existing Support Order requesting suspension of her support obligation as "she is currently under
doctors care and unable to work." On March 28, 2013, a Consent Order was entered suspending
Mother's support obligation, effective March 4, 2013. Mother's support obligation remained
suspended through December 31, 2013. Effective January 1, 2014, Mother was to pay $89.60 in
monthly child support.
Mother, on March 28, 2014 filed a Petition for Modification of an Existing Support Order
requesting that the Court terminate her support obligation. Following a support conference and a
de nova hearing, a September 11, 2014 Order of Court issued maintaining Mother's monthly
support obligation at $89.60, plus $20.10 for arrears. Mother appealed the same. In its Opinion
pursuant to Pennsylvania Rule of Appellate Procedure 1925, this Court set forth its reasons for
the Order as follows:
At the September 11, 2014 de novo hearing, Mother asserted that the child
support order should be terminated as she is medically unable to work as the
result of an accident for which she is still under a physician's care. Mother did
not, however, present any evidence in support of her position. To the contrary,
Mother testified that she was released by her physician to return to work, with
restrictions, in November of 2012. She further declared that she was fully active.
Moreover, Mother testified that she was three times denied disability through her
employer.
For the foregoing reasons, Mother did not meet her burden of
demonstrating a material and substantial change in circumstances warranting the
requested termination of support.
See November 26, 2014 Opinion. Mother's appeal was dismissed for failure to file a brief. See
May 28, 2015 Order of the Superior Court of Pennsylvania, 1690 WDA 2014.
With Mother's appeal pending, Father, on November 24, 2014, filed a Petition for
Modification alleging that Mother had returned to work and requesting an increase in child
support. Following a support conference, a January 22, 2015 Order of Court was entered setting
Father's monthly net income at $4,674.69, Mother's monthly net income at $3,818.96 and
ordering Mother to pay the guideline monthly support amount of $610.63, plus $92.50 for
arrears. Neither party filed a Demand for Court Hearing, accordingly, the January 22, 2015
Order became a final order.
Less than six months later, on July 17, 2015, Mother filed another Petition for
Modification of an Existing Support Order requesting a decrease in her child support obligation
or suspension of the order alleging that "she is unable to work due to injury from car accident
and short term disability has been denied." On October 22, 2015, this Court presided over a de
novo hearing on Mother's Petition. At the hearing, Mother sought reduction of her support
obligation due to injuries from a February 26, 2015 motor vehicle accident. See Opinion,
December 10, 2015; see also October 22, 2015 N.T. at 3. Following the hearing, this Court
issued an October 22, 2015 Order denying modification of Mother's support obligation and
maintaining the order at $610.63, plus arrears. Mother filed an appeal from the same, which is
pending. As set forth in the Court's December 10, 2015 Opinion, this Court denied Mother's
Petition for Modification for the following reasons:
Mother's testimony was her only evidence. She did not present any
medical evidence, witness testimony or any other proof to support her self-
proclaimed disability. Moreover, her testimony contradicts her position. First,
but for taking periodic vacation time, Mother continued to work after the accident.
Moreover, she "forgot" to see a doctor until her insurance company reminded her
that she needed to visit a physician. Furthermore, she was denied disability by her
employer.
Meanwhile, Eric J. Askins ("Father"), who like Mother is employed by
GE Transportation System, testified that Mother worked from the time of her
accident until May 11, 2015. Furthermore, Father witnessed Mother participating
in Tae Kwon Do. Father even documented Mother's September 30, 2015 and
October 21, 2015 participation in this activity via photographs. See Exhibits A,
B, and C. Father observed Mother hopping, kicking and crawling at the Tae
Kwon Do sessions.
Accordingly, this Court did not find any evidence to support Mother's
claim that injuries from her February automobile accident impede her ability to
maintain her employment. In that respect, Mother did not meet her burden of
proof to show a material and substantial change of circumstances. As Mother has
a job, which she simply fails to work, the Court found it appropriate to continue
with her support obligation based upon the earnings she would actually make if
she showed up for work.
Opinion, December 10, 2015.
With her appeal pending, Mother, on June 30, 2016, filed a Petition for Modification of
an Existing Support Order requesting suspension of her support obligation as "she has been
notified she does not have a job to return to once released from medical leave." Following an
August 9, 2016 conference, an August 16, 2016 interim Order of Court issued denying Mother's
Petition. Mother filed a Demand for Court Hearing. Following an October 4, 2016 de novo
hearing, this Court issued its October 5, 2016 making the August 16, 2016 interim Order a final
order. Mother filed an appeal from the same. In her Concise Statement of Errors Complained of
on Appeal, Mother alleges as follows:
1. That the Court erred in determining that [Mother's] claim was without merit.
2. That the Court erred in suspending the support order due to the circumstances
that was given of being permanently laid off and under physician's care.
3. That the Court erred of the base holding of [Mother] by law at a past
capability of wage earning from prior orders dated from 9/02/15 and De Novo
hearing held on 10/22/15 while being under physician's care and being
permanently laid off from employer.
4. That the Court erred in affirming a decision based of biasness granted from
Conference officer's belief differences and non-correlating past and present
experiences.
October 22, 2015 support order and all issues related to the alleged disabling effect of the motor
vehicle accident are without merit.
Mother further testified that a January of 2016 accident aggravated her neck and back
injuries. Mother is not, however, credible. Since institution of the support action, Mother has
repeatedly petitioned to terminate or suspend her support obligation on the basis of inability to
work and, repeatedly, her own evidence has contradicted her position. In 2012, Mother
petitioned for suspension of her support obligation alleging inability to work. The Court denied
her Petition when the evidence showed that Mother, who had been denied disability benefits, was
released from her physician to return to work. In 2014, Mother requested that the Court
terminate her support obligation as she was medically unable to work as the result of an accident.
The evidence revealed, however, that Mother was released by her physician to return to work,
she was fully active and her employer denied her disability claims. See November 26, 2014
Opinion. In 2015, Mother requested that her support obligation be suspended as she was unable
to work due to injuries from another accident. The evidence showed, however, that Mother
continued work for three months after the allegedly disabling accident, forgot to see her doctor
until that time, and actively engaged in Tae Kwon Do during the time that she alleged she was
unable to work. See December 10, 2015 Opinion. With regard to Mother's present allegation of
a fourth debilitating accident, she presented a Physician Verification Form, dated July 29, 2016,
in support of her position that she is unable to work. 1 See Defendant Exhibit B. As with the
accident in 2015, it is clear that, once again, Mother did not seek treatment until two months after
I
Mother also presented an October 3, 2016 Physician Verification Form to which Father properly objected on the
ground that he did not have advance notice of the same. Exhibit C, which includes an October 3, 2016 Physician
Verification Form is dated one day before the de novo hearing and, as such, was not properly before the Court for
consideration. See Pa.R.C.P. 1910.29(b). With regard to the July 29, 2016 Physician Verification Form, it is not
clear whether the proper procedures were followed for introduction of the same. Father did not, however, raise an
objection either at the hearing or in writing prior thereto.
the alleged accident. Moreover, the statements written on the Form reflect Mother's perception,
rather than the results of an independent evaluation. Specifically, in the section discussing
Mother's ability to earn income, there is a handwritten statement indicating: "Pt stated medical
condition started May 11, 2015 effecting earning potential." As further detailed above, Mother
is not credible. In this regard, the Court did not give the Physician Verification Form any
weight.
Accordingly, with regard to Mother's physical ability to work, there is no change in
circumstances.
Mother, however, further asserts that even if she were able to work that she no longer has
a job with GE. In support of her position, she presented two separate letters, dated August 22,
2016 and October 3, 2016, both signed by Beth Robinson on GE Transportation letterhead and
both providing:
As of today, due to a permanent lack of work, Lisa Davison does not have a job
placement opportunity within the Lack of Work Procedure. If she were to be
released to return to work, she would be placed on a recall list for five years from
her last day of work.
See Exhibits Band C. Mother presented no evidence to further explain the details of the letters,
the "Lack of Work Procedure," or whether her absence from work for over a year had anything
to do with her employment status. Regardless, under the facts specific to this case, such a letter
does not demonstrate a change in circumstances. Due to her self-proclaimed inability to work,
Mother was not working at the time of entry of the last support order. Had Mother been
working, as this court has repeatedly determined she was able to do, a "lack of work"
determination from her employer may be relevant to consider whether Mother experienced an
involuntary reduction of income. As Mother has not worked since May of2015 due to
,.
unsupported claims of inability to work, however, the Court does not view the GE letter as a
change in circumstances. Furthermore, Mother offered no evidence of any effort to mitigate her
lost income. She merely testified that she would either have to go back to school or move out of
state in order to make child support payments at the assessed earning capability.
Accordingly, Mother did not meet her burden of demonstrating the occurrence of a
material and substantial change in circumstances and the October 5, 2016 Order should be
affirmed,
BY THE COURT:
cc: Eric J. Askins, 6851 Ponderosa Drive, Erie, PA 16509
Lisa A. Davison, 1044 South Drive, Waterford, PA 16441
Support Office