J-A28003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.C.S., F/K/A, D.C.S.-R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
P.R. :
:
Appellant :
: No. 1008 EDA 2017
Appeal from the Order Dated February 27, 2017
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 462-DR-2011
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 11, 2018
Appellant, P.R. (“Father”), appeals pro se from the order entered in
the Wayne County Court of Common Pleas, which granted in part Appellee’s,
D.C.S., f/k/a, D.C.S.-R. (“Mother”), motion for sanctions, sustained Mother’s
objections to the notice of intent to serve subpoenas, denied Father’s
petition for special order for discovery, and dismissed a support proceeding.
We affirm.
The relevant facts and procedural history of this case are as follows.
On September 7, 2011, Mother filed a complaint against Father for child and
spousal support. After a support conference on November 1, 2011, the
support master entered an interim support order on November 2, 2011. On
November 28, 2011, Father filed a de novo appeal and objections to the
support order. After a de novo hearing on February 28, 2012, the court
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upheld the support order. On August 10, 2015, Mother filed a petition to
modify the support order. After a modification conference on September 21,
2015, the support master modified the support order on September 22,
2015.
Father filed a pro se petition to modify support on June 27, 2016.
Following a modification conference on July 27, 2016, the support master
dismissed Father’s modification petition on July 28, 2016. On August 15,
2016, Father filed a pro se request for a de novo hearing; Mother did not file
objections. After a de novo hearing on October 4, 2016, the court upheld
the denial of Father’s June 27, 2016 modification petition.
On January 9, 2017, Father filed a second pro se petition to modify
support and a notice of intent to serve subpoenas. Mother filed a motion for
sanctions on January 18, 2017, and objections to Father’s notice of intent to
serve subpoenas. On January 27, 2017, Father filed pro se objections to
Mother’s January 18, 2017 motion and objections, and Father also filed a
petition for a special order for discovery. The court held a hearing on
February 1, 2017. On February 27, 2017, the court granted in part Mother’s
motion for sanctions, sustained Mother’s objections to the notice of intent to
serve subpoenas, denied Father’s petition for special order for discovery, and
dismissed a support proceeding that was continued on February 1, 2017,
until further order of the court. On March 23, 2017, Father timely filed a pro
se notice of appeal along with a concise statement of errors complained of
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on appeal pursuant to Pa.R.A.P. 1925(b).1
Father raises the following issues for our review:
DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION IN GRANTING [MOTHER]’S MOTION FOR
SANCTIONS PURSUANT TO PA.R.C.P. 1023.2 WHEN THE
EVIDENCE AND THE RECORD CLEARLY SHOWS THAT
[FATHER] FILED AND SERVED ALL OF THE PLEADINGS IN
GOOD FAITH, AND WHERE [FATHER]’S ACTIONS IN
FILING THE PETITION FOR MODIFICATION OF SUPPORT
OR IN SERVING THE NOTICE OF INTENT TO SERVE
SUBPOENAS WERE NOT DILATORY, OBDURATE OR
VEXATIOUS IN NATURE?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION IN GRANTING [MOTHER]’S MOTION FOR
SANCTIONS PURSUANT TO PA.R.C.P. 1023.2 WHEN IT
WAS VERY WELL AWARE THAT [MOTHER] DID NOT GIVE
WRITTEN NOTICE OR DEMAND TO [FATHER], FORMAL OR
INFORMAL, TO APPROPRIATELY CORRECT OR WITHDRAW
THE CHALLENGED PAPER OR REPORTED DEFICIENT, NOR
DID [MOTHER] WAIT THE REQUIRED TWENTY-EIGHT (28)
DAY GRACE PERIOD AFTER SERVICE OF DEMAND, HAD
SHE GIVEN THE REQUIRED NOTICE [PRIOR TO] FILING
THE MOTION FOR SANCTIONS, AS CALLED FOR IN
PA.R.C.P. 1023.1 AND 1023.2; AND WHEN ALL [MOTHER]
HAD TO DO WAS FILE A MOTION FOR CONTINUANCE OF
THE FEBRUARY 2, 2017 SUPPORT CONFERENCE WHILE
GIVING [FATHER] THE REQUIRED 28[-]DAY NOTICE
DEMAND PRIOR TO FILING THE WITHIN MOTION FOR
SANCTIONS?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION IN SUSTAINING [MOTHER]’S OBJECTIONS
TO NOTICE OF INTENT TO SERVE SUBPOENAS AND/OR IN
DENYING [FATHER]’S PETITION FOR SPECIAL ORDER FOR
DISCOVERY IN A SUPPORT ACTION PURSUANT TO
PA.R.C.P. 1910.9(A), WHEN THESE PLEADINGS WERE
____________________________________________
1 Father styled his concise statement of errors as a Rule 1925(a)(2)
statement; however, this appeal is not a children’s fast track case.
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SERVED IN GOOD FAITH, IN ACCORDANCE WITH THE
APPLICABLE RULES, SO AS TO SECURE NECESSARY
DOCUMENTS FROM TWO (2) GOVERNMENTAL ENTITIES
AND A PRIVATE PHYSICIAN TO FURTHER SUPPORT
[FATHER]’S CONTENTION THAT THERE IS A CHANGE IN
CIRCUMSTANCES, IN THAT [MOTHER] HAS NO MEDICAL
RESTRICTIONS FOR EMPLOYMENT, WHICH WOULD HAVE
RESULTED IN [MOTHER] BEING IMPUTED INCOME, AND
THUS A CHANGE IN INCOME OF THE PARTIES, AS
SUPPORTED BY RULE 1023.1(C)(3)?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION IN DISMISSING THE SUPPORT PROCEEDING
THAT WAS CONTINUED ON FEBRUARY 1, 2017 UNTIL
FURTHER ORDER OF THE COURT, WHEN THIS WAS
[FATHER]’S SECOND PETITION FOR MODIFICATION FILED
IN THE SIX (6) YEAR HISTORY OF THIS CASE, AND
WHERE [MOTHER] HAS NEVER PROVIDED [FATHER] WITH
A PHYSICIAN’S AFFIDAVIT OR VERIFICATION FORM AS TO
HER ALLEGED EMPLOYMENT RESTRICTIONS, WHICH SHE
FALSELY CLAIMED SHE HAD IN HER POSSESSION AND
WHICH SHE HAD FILED WITH THE COURT IN PRIOR
SUPPORT PROCEEDINGS THAT RESULTED IN DE NOVO
HEARINGS BEFORE THE COURT?
(Father’s Brief at 3-6).
Preliminarily, we observe “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Further, our standard of review of issues concerning sanctions and discovery
orders is one of abuse of discretion by the trial court. ACE American Ins.
Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935 (Pa.Super. 2007),
affirmed, 601 Pa. 95, 971 A.2d 1121 (2009); Crum v.
Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578
(Pa.Super. 2006). “An abuse of discretion is not lightly found, as it requires
clear and convincing evidence that the trial court misapplied the law or failed
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to follow proper legal procedures. [This Court] will not usurp the trial court’s
factfinding function.” Holz v. Holz, 850 A.2d 751, 757 (Pa.Super. 2004),
appeal denied, 582 Pa. 700, 871 A.2d 192 (2005) (internal citations
omitted).
Our standard review of child support orders is well settled:
When evaluating a support order, this Court may only
reverse the trial court’s determination where the order
cannot be sustained on any valid ground. We will not
interfere with the broad discretion afforded the trial court
absent an abuse of discretion or insufficient evidence to
sustain the support order. An abuse of discretion is not
merely an error of judgment; if, in reaching a conclusion,
the court overrides or misapplies the law, or the judgment
exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or
ill will, discretion has been abused. In addition, we note
that the duty to support one’s child is absolute, and the
purpose of child support is to promote the child’s best
interests.
Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting Mencer v.
Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable Raymond L.
Hamill, we conclude Father’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed May 18, 2017, at 1-5) (finding:
(1) Father did not aver material and substantial change in circumstances in
his January 9, 2017 petition for modification; instead, he challenged
testimony and evidence from October 4, 2016 de novo hearing; Father
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repeatedly failed to abide by Rules of Procedure and needlessly increased
cost of litigation, which warranted entry of sanction order; (2) Father failed
to argue Mother did not serve him with written notice and demand of her
motion for sanctions; Father raised this argument for first time in his Rule
1925(b) statement; therefore, Father waived this issue; (3) Father
requested inappropriate discovery; Father sought information to show
material and substantial change in circumstances; Father, however, failed to
establish how sought-after information would show change in circumstances;
Father also claims Mother failed and/or refused to provide Physician’s
Affidavit and Verification Form, but Mother did not introduce this form into
evidence, so Father was not entitled to copy; Father’s purpose for obtaining
the Physician’s Affidavit and Verification Form was suspect, because he
originally sought this Form to use against Mother in separate custody action;
(4) court determined after February 1, 2017 argument that Father’s petition
for modification of existing support order failed to aver material and
substantial change in circumstances; therefore, court properly dismissed
support proceeding on Father’s petition). Accordingly, we affirm on the
basis of the trial court opinion.2
Order affirmed.
____________________________________________
2 Mother’s open application for relief in the form of a motion for counsel fees
is denied without prejudice to Mother’s right to seek reasonable attorneys’
fees in the trial court along with other costs associated with this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
-7-
Circulated 12/21 /2017 04:39 PM
IN THE COURT OF COMMON PLEAS OF THE 22ND JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF WAYNE
'
Plaintiff
vs.
.,
Defendant NO. 462-DR-2011
STATEMENT OF REASONS
Defendant, f>e R� , appeals from an Order entered in this matter on the 27th day of
February 2017, which granted in part Plaintiffs Motion for Sanctions, sustained Plaintiffs
Objections to Notice of Intent to Serve Subpoenas, denied Defendant's Petition for Special Order
for Discovery, and dismissed the support proceeding that was continued on February 1, 2017 until
further Order of Court. In his concise statement, Defendant raises four (4) issues.
I. Whether the trial court erred and/or abused its discretion in granting Plaintiff's
Motion for Sanctions pursuant to PA. R.C.P. 1023.2.
Defendant claims that the evidence and record shows that he filed and served all of the
pleadings in good faith, and that his actions in filing the Petition for Modification of Support or in
serving the Notice ofintent to Serve Subpoenas were not dilatory, obdurate or vexatious in nature.
Pursuant to Pa. R.C.P. 1023.1:
( c) The signature of an attorney or pro se party constitutes a certificate that the signatory
has read the pleading, motion, or other paper. By signing, filing, submitting, or later
advocating such a document, the attorney or pro se party certifies that, to the best
of the person's knowledge, information and belief, formed after an inquiry
reasonable under the circumstances,
LO : fl WV 81 J. VH LI Ol
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· ICANNED /
(1) it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation,
(2) the claims, defenses, and other legal contentions therein are warranted by existing
law or by a nonfrivolous argument for the extension, modification or reversal of
existing law of the establishment of new law,
(3) the factual allegations have evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
( 4) the denials of factual allegations are warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of information or belief.
( d) If, after notice and a reasonable opportunity to respond, the court determines that
subdivision (c) has been violated, the court may, subject to the conditions stated in
Rules 1023.2 through 1023.4, impose an appropriate sanction upon any attorneys,
law firms and parties that have violated subdivision ( c) or are responsible for the
violation.
On June 27, 2016, Defendant filed a Petition for Modification of an Existing Support Order.
Defendant's petition was dismissed without prejudice on July 27, 2016. After a de novo hearing
held on October 4, 2016, this Court ordered the Support Order to remain in full force and effect.
Shortly thereafter, on January 9, 2017, Defendant filed another Petition for Modification.
Defendant argues within his petition that Plaintiff failed to provide him with a Physician
Verification From within 20 days after the Support Conference, or in advance of the de novo
hearing, as required by Rule 1910.29(b)(2). Thus, Defendant argues that modification of the
existing support order is warranted.
"A petition for modification or termination of an existing support order shall specifically
aver the material and substantial change in circumstances upon which the petition is based." Pa.
R.C.P. 1910.19(a). It is clear from Defendant's Petition that he is challenging the testimony and
evidence from the October 4, 2016 de novo hearing instead of averring a material and substantial
change in circumstances. Defendant's failure to litigate by the rules has become a pattern. This
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pattern has created a needless increase in the cost of litigation, and justifies the entry of a sanction
order.
II. Whether the trial court erred and/or abused its discretion in granting Plaintiffs
Motion for Sanctions pursuant to Pa. R.C.P. 1023.2
Defendant claims that Plaintiff did not give written notice or demand to Defendant, formal
or informal, to appropriately correct or withdraw the challenged paper or reported deficiency.
Defendant further claims that Plaintiff did not wait the required twenty-eight (28) day grace period
after service of demand. Pursuant to Pa. R.C.P. 1023.2(b):
No such motion shall be filed unless it includes a certification that the applicant
served written notice and demand to the attorney or pro se party who signed or filed
the challenged pleading, motion or other paper. The certification shall have annexed
a copy of that notice and demand, which shall identify with specificity each portion
of the document which is believed to violate the provisions of this rule, set forth the
basis for that belief with specificity, include a demand that the document or portion
of the document, be withdraw or appropriately corrected. An application for
sanctions may be filed if the challenged paper, claim, defense, contention,
allegation or denial is not withdrawn or appropriately corrected within twenty-eight
days after service of the written demand. If warranted, the court may award to the
party prevailing on the motion the reasonable expenses and attorney's fees incurred
in presenting or opposing the motion.
When Plaintiff filed her Motion for Sanctions, Defendant never put forth his position that
Plaintiff failed to serve written notice and demand. It was not until Defendant filed his Concise
Statement of Errors Complained of on Appeal that he advised this Court of his position.
Defendant's failure to do so constitutes a waiver of his arguments, and justifies the entry of a
sanction order.
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III. Whether the trial court erred and/or abused its discretion in sustaining Plalntiff's
Objections to Defendant's Notice of Intent to Serve Subpoenas and/or in denying
Defendant's Petition for Special Order for Discovery in a Support Action
Pursuant to Pa. R.C.P. 1910.9(a).
Defendant claims these pleadings were served in good faith and in accordance with the
applicable rules so as to secure necessary documents from two (2) governmental entities and a
private physician to further support Defendant's contention that there is a change in circumstances.
The Pennsylvania Rules of Civil Procedure provide that there is no discovery in support matters
except where authorized by special order of court. Pa. R.C.P. 1910.9(a), 400l(a). It is within the
discretion of the trial court to determine whether discovery is appropriate under the circumstances
of the particular case.
In this case, the discovery requested by Defendant is inappropriate. Defendant is seeking
information to show a material and substantial change in circumstances; however, Defendant failed
to establish how the information sought would in fact show such a change. Defendant also
mistakenly claims that Plaintiff failed and/or outright refused to provide a Physician's Affidavit
and Verification Form as required by Pa. R.C.P. 1910.29(b)(2). Pursuant to 1910.29, "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." Pa. R. C.P. 1910.29(b)(2) ( emphasis added). Plaintiff has not introduced
a Physician Verification From into evidence; therefore, Defendant was not entitled to be served
with a copy of that form. Furthermore, the purpose for obtaining a Physician's Affidavit and
Verification Form in this support action is questionable because Defendant testified that he
originally sought the Physician's Affidavit and Verification Form to use against Plaintiff in a
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.....
separate custody action. For the foregoing reasons, this Court did not err or abuse its discretion in
sustaining Plaintiffs Objections to Defendant's Notice of Intent to Serve Subpoenas and in
denying Defendant's Petition for Special order for Discovery in a Support Action Pursuant to Pa.
R.C.P. 1910.9(a).
IV. Whether the trial court erred and/or abused its discretion in dismissing the
Support Proceeding that was continued on February 1, 2017 until further order
of the court.
This Court determined after argument held on February 1, 2017, that Defendant's Petition ·
for Modification of an Existing Support Order failed to aver a material and substantial change in
circumstances. Therefore, the support proceeding on Defendant's petition was properly dismissed.
BY THE COURT
DATE: �JJ;-4 'i..L:J---4-/;_--4- /--'--_
J
7 l RA OND L. HAMILL
P SIDENT JUDGE
22ND JUDICIAL DISTRICT
cc: - Oressa P. Campbell, Esq.
- Peter Ramos
P.O. Box 22494
Trenton, NJ 08;��
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