M.M.F. v. V.A.F.

J-S83032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.M.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
V.A.F. :
:
Appellant : No. 945 EDA 2017

Appeal from the Order February 14, 2017
In the Court of Common Pleas of Northampton County
Domestic Relations at No(s): DR-36710,
PACSES Case #922111536

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 18, 2018

Appellant, V.A.F. (“Father”), appeals from the order entered in the

Northampton County Court of Common Pleas, which finalized the November

10, 2016 order that dismissed Father’s petition to modify the existing

support order. We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Father raises the following issues for our review:

WHETHER THE TRIAL COURT COMMITTED [AN] ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION IN FAILING TO
ADJUST THE PRESENT SUPPORT ORDER AS TO THE
AMOUNT [FATHER] IS TO PAY IN MONTHLY CHILD
SUPPORT RETROACTIVELY TO MAY 2015 TO REFLECT THE
FACT THAT APPELLEE [(“MOTHER”)] HAS BEEN RECEIVING
AN ADDITIONAL $1,201.47 PER MONTH AS: (A) HER PRO
J-S83032-17

RATA PORTION OF FATHER’S PENSION IN THE AMOUNT OF
$701.47; PLUS (B) A PENALTY PROVISION FROM
[FATHER’S] PENSION OF $500 PER MONTH, AND MOTHER
IS PERMITTED TO BE CHARGED RETROACTIVELY DUE TO
THE FACT THAT MOTHER FAILED TO REPORT THIS
ADDITIONAL INCOME AS REQUIRED BY 23 PA.C.S. §
4353(A)?

WHETHER THE TRIAL COURT [COMMITTED] AN ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION IN ESSENTIALLY
CHARGING FATHER WITH THREE (3) FULL-TIME INCOMES:
(A) FOR A MONTHLY PRO RATA PORTION OF HIS FORMER
LUMP SUM DISTRIBUTION FROM A FORMER WORKERS
COMPENSATION SETTLEMENT; (B) FOR A MONTHLY
DISTRIBUTION FROM HIS PENSION OF $201.24; AND (C)
FOR HIS FULL-TIME JOB WITH AMAZON.COM, ANY OF
WHICH SITUTATIONS ALONE WOULD NORMALLY BE
CONSIDERED A “FULL-TIME” JOB AND THUS THIS
“TAKING” REPRESENTS A VIOLATION OF EQUAL
PROTECTION UNDER THE LAW?

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION BY NOT
BIFURCATING THE PRESENT CHILD SUPPORT ORDER
GIVEN THAT [FATHER] DID NOT…START HIS POSITION
WITH AMAZON.COM FOR OVER A MONTH, I.E.[,] UNTIL
OCTOBER 21, 2016, AFTER HE HAD FILED HIS PETITION
FOR MODIFICATION ON SEPTEMBER 12, 2016, YET THE
PRESENT ORDER DOES NOT REFLECT HIS REDUCED
INCOME FOR THE PRIOR FIVE (5) WEEKS?

(Father’s Brief at 4).

Preliminarily, we observe that appellate briefs must conform in all

material respects to the briefing requirements set forth in the Pennsylvania

Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-

2119 (addressing specific requirements of each subsection of brief on

appeal). Regarding the argument section of an appellate brief, Rule 2119(a)

provides:

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J-S83032-17

Rule 2119. Argument

(a) General rule.—The argument shall be divided
into as many parts as there are questions to be argued;
and shall have at the head of each part—in distinctive type
or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are

sufficiently developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with citations to legal

authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.

2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations

omitted). “This Court will not act as counsel and will not develop arguments

on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability

to address any issue on review, we shall consider the issue waived.

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding

appellant waived issue on appeal where he failed to support claim with

relevant citations to case law and record). See also In re R.D., 44 A.3d

657 (Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012)

(holding appellant waived issue, where argument portion of appellant’s brief

lacked meaningful discussion of, or citation to, relevant legal authority

regarding issue generally or specifically; appellant’s lack of analysis

precluded meaningful appellate review).

Instantly, the argument section of Father’s brief is significantly

underdeveloped. All three of Father’s issues lack meaningful discussion of

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J-S83032-17

his position, and instead Father mostly restates the facts of his case. See

In re R.D., supra. The citations to authority Father included in his brief fail

to strengthen any argument. Although the authorities Father cited do

involve child support orders, they are not pertinent to Father’s case. See

Hardy, supra; Pa.R.A.P. 2119(a). Therefore, Father waived his issues for

appellate review. See Gould, supra.

Moreover, even if Father properly preserved his issues, we would

affirm on the basis of the trial court’s opinion. (See Trial Court Opinion, filed

May 16, 2017, at 12-19) (finding: (1) Father filed his most recent petition

for modification of support on September 12, 2016, and sought to have

support order modified retroactively to May 2015, when Father claims

Mother began “misrepresenting” her income by failing to report her receipt

of portion of Father’s pension; court denied Father’s request because Father

had direct knowledge of pension payments made to Mother since May 2015,

and could have petitioned to modify support at any point after May 2015,

but Father failed to seek modification of support until September 12, 2016;

thus, Father did not promptly file his most recent support modification

petition; moreover, Father presented no compelling reason for retroactive

application of any modification order to May 2015; further, record does not

indicate Mother misrepresented her income, and Father did not proffer any

other reason to support his retroactivity request; to extent Father disputes

Mother’s entitlement to portion of Father’s pension, this issue has already

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J-S83032-17

been litigated; record is devoid of any evidence requiring court to change

effective date from date of filing of modification petition; (2) court correctly

considered Father’s three sources of monthly income when calculating his

child support obligation; at October 26, 2016 conference, Father reported he

had been hired by Amazon and provided wage certification; Father’s income

from Amazon position constitutes “income” for purposes of child support;

income assessed from Father’s pension and worker’s compensation have

been previously litigated; both funds are “income” for purposes of child

support; Father’s assertion that court violated his equal protection rights in

calculating Father’s income lacks legal basis; (3) regarding Father’s effort to

“bifurcate” current support order to reflect Father’s reduced income between

September 12, 2016, and October 21, 2016, when he was not yet employed

with Amazon, Conference Officer decided there was no basis for Father’s

requested support modification; rather, Conference Officer saw basis for

increase in Father’s support obligation, but she decided against any increase

because it would create undue hardship for Father; given that finding,

bifurcation was unwarranted). Accordingly, Appellant waived his issues for

appeal, and we affirm the court’s order dismissing Father’s petition to modify

the existing support order.

Order affirmed.

-5-
J-S83032-17

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/18/2018

-6-
 Circulated 12/27/2017 04:42 PM

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

·, No.: DR-36710
PASCES No.: 922111536
Plaintiff, Super. Ct. No.: 945 EDA 2�7
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PENNSYLVANIA RULE OF APPELLATE PROCEDURE
1925(a} STATEMENT
AND NOW, this 15th day of May, 2017, the court issues the following

statement:

On March 15, 2017, Defendant v, \�.i::, ("Defendant") filed and

served upon the court a timely Notice of Appeal to the Superior Court of

Pennsylvania from the Order of Court dated February 14, 2017. See Notice

of Appeal, , DR-0036710 (C.P. Northampton Co. February

14, 2017). On April 10, 2017, pursuant to our request under Pa.R.C.P. No.

1925(b), Defendant filed and served upon the court a Concise Statement of

Matters Complained of on Appeal. See Concise Statement,

, DR-0036710 (C.P. Northampton Co. Apr. 10, 2017). For the

reasons that follow, we respectfully suggest that the Defendant's appeal

lacks merit.
 BACKGROUND

I. Factual and Procedural History

On March 17, 2010, Plaintiff M.(v\,y, ("Plaintiff") filed a

Complaint for Support seeking support for three children and spousal

support.1 See Complaint for Support, , DR-0036710 (C.P.

Northampton Co. Mar. 17, 2010). On May 10, 2010, following a May 5,

2010 hearing, the undersigned entered an Order of Court requiring

Defendant to pay support for three children in the amount of $1,038.00 per

month, spousal support in the amount of $498.00 per month, and $154.00

per month in arrears. See Order of Court, DR-0036710

(C.P. Northampton Co. May 10, 2010). Defendant filed objections to the

May 10, 2010 Order and a hearing was held on June 2, 2010. See

Objections,. ), DR-0036710 (C.P. Northampton Co. May 10,

2010). On June 8, 2010, the undersigned entered an Order of Court

requiring Defendant to comply with the May 10, 2010 Order. See Order of

Court, J, DR-0036710 (C.P. Northampton Co. Jun. 8, 2010).

On June 14, 2011, the Honorable Paula A. Roscioli entered an Order of

Court modifying the child support based upon one of the three children

having reached the age of majority. See Order of Court,

1
Plaintiff filed a Complaint in divorce against Defendant on September 28, 2007.
See Complaint, Ferraro v. Ferraro, C-48-CV-2007-08484 (C.P. Northampton Co.
September 28, 2007). The parties' divorce was granted on July 18, 2016. See
Decree, Ferraro v, Ferraro, C-48-CV-2007-08484 (C.P. Northampton Co. July 18,
2016).

2
DR-0036710 (C.P. Northampton Co. Jun. 14, 2011). Pursuant to this Order,

Defendant was required to pay child support in the amount of $761.34 per

month for the support of two children, allocated $692.00 per month for

current support and $69.34 for arrears, effective June 8, 2011. See id.

On October 21, 2013, Defendant filed a Petition for Modification

seeking to decrease his child support payments. See Petition for

Modification, . DR-0036710 (C.P. Northampton Co. Oct.

21, 2013). On November 26, 2013, the parties appeared for a Support

Conference with Conference Officer Brad Umholtz ("Umholtz"). See

Summary of Trier of Fact, DR-0036710 (C.P.

Northampton Co. Nov. 26, 2013). Umholtz noted that Defendant reported

that he had worked for Northampton County for twenty years and retired on

January 20, 2012. See id. Defendant was receiving income from his

pension in the amount of $1,402.20 per month. See id. Defendant also

indicated that he received a $120,000.00 lump sum monetary settlement

from a Worker's Compensation claim. See id. Umholtz noted that

Defendant's income calculation was pending submission of Defendant's

Worker's Compensation compromise paperwork by December 4, 2013. See

id.

Upon Defendant's submission of the necessary paperwork, Umholtz

determined that Defendant actually received a lump sum payment of

$135,000.00. See Conference Officer Note, . >, DR-0036710

3
(C.P. Northampton Co. Dec. 6, 2013). Umholtz noted that Defendant's

attorneys received, 20°/o or $27,000.00, of the lump sum payment.

Therefore, in calculating the support obligation, the conference officer

divided the remaining sum of $108,000.00 over sixty-one months, the time

until the youngest child on the support order would reach the age of

majority. See id. This calculation resulted in an attributed monthly income

of $1,770.49 to Defendant per month in each of those sixty-one months,

from the date he entered into the Worker's Compensation Compromise until

the youngest child reached the age of majority. See id. Based upon this

$1,770.49 attributed monthly income, plus the $1,402.20 monthly payment

from his pension, Defendant's total monthly income was calculated as

$3,713.00. See id. Applying the statutory formulas, Umholtz calculated

Defendant's adjusted monthly net income as $3,115.80. See id.

On December 6, 2013, the Honorable Paula A. Roscioli 'entered an

Order setting Defendant's child support obligation at $982.00 per month,

allocated as $893.00 for current support and $89.00 for arrears. See Order

of Court, DR-0036710 (C.P. Northampton Co. Dec. 6,

2013). The support obligation was based upon Plaintiff's adjusted monthly

net income of $1,588.94 per month/ and Defendant's adjusted monthly net

income of $3,115.80. See id. The Order was effective retroactively to the

2Plaintiff's income was based upon six months of paystubs submitted to the
Conference Officer. See Order dated Dec. 6, 2017.

4
 date of Defendant's petition for modification, and arrears were set at

$1,107.96. See id.

On January 6, 2014, Defendant filed a timely written demand for a de

novo hearing of the December 6, 2013 Order. See Demand for De Novo

Hearing, , DR-0036710 (C.P. Northampton Co. Jan. 6,

2014) The de novo hearing was originally scheduled for April 2, 2014,

however, the hearing was subsequently rescheduled several times at the

request of Defendant's counsel to allow the parties to take depositions. See

Order of Court, :, DR-0036710 (C.P. Northampton Co. Feb.

26, 2014); Order of Court,· ·, DR-0036710 (C.P.

Northampton Co. Jul. 1, 2014).
!.
On July 3, 2014, while the de novo hearing was still pending,

Defendant filed a "Petition for Review seeking a Reallocation Order due to

Emancipation, effective June 10, 2014." See Petition, .

DR-0036710 (C.P. Northampton Co. Jul. 3, 2014). On July 11, 2014, the

court entered a Modified Order of Court setting the amount of child support

for one child, at $688.00 a month. See Order of Court,

DR-0036710 (C.P. Northampton Co. Jul. 11, 2014). The July 11, 2014 Order

was based upon an adjusted monthly net income for Plaintiff of $1,599.00

and an adjusted monthly net income for Defendant of $3, 115.80. See id.

The effective date of the July 11, 2014 Order was June 10, 2014, the high

school graduation date of the now emancipated child. See id. The total

5
support amount was $688.00, allocated $626.00 for current support and

$62.00 for arrears. See id.

On January 28, 2015, the parties appeared before the Honorable

Leonard N. Zito for a de novo hearing on Defendant's objections to the

December 6, 2013 support order, as modified by the July 11, 2014 Order.

See Notes of Transcript, . , DR-0036710 (C.P. Northampton

Co. Mar. 16, 2015) ("N.T. Jan. 28"). On March 27, 2015, Judge Zito entered

an Order of Court, making the Order of December 6, 2013 final. See Order

of Court, DR-0036710 (C.P. Northampton Co. Mar. 27,

2015). The stipulations in the Order of Court dated July 11, 2014 were to

remain in effect and Defendant was granted the opportunity to petition for

modification upon any change in his pension distribution or other financial

circumstances. See id.

On May 11, 2015, Defendant filed a Notice of Appeal to the

Pennsylvania Superior Court from the Order of Court dated March 27, 2015.

See Notice of Appeal, , DR-0036710 (C.P. Northampton

Co. May 11, 2015). Defendant timely filed his "Concise Statement of Errors

Complained of on Appeal," pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). See Concise Statement, , DR-0036710

(C.P. Northampton Co. Jun. 2, 2015). Defendant alleged the following four

errors:

A. Whether the Trial Court committed an error of law
and/or an abuse of discretion in falling to adjust the

6
 $135,000 gross amount of Father's Worker's
Compensation Settlement & Release of January 23,
2013, by properly reducing it by not only the
attorney's fees he paid in the amount of $27 ,000,
but also by $13,500 set aside for Father's potential
future medical expenses as well as an offset of
$934.66 that was paid to DRS for child support at
the time of pay-out of the lump sum, so that Father's
net should have been reduced to $93,565.347

B. Whether the Trial Court committed an error of law
or abuse of discretion in not recognizing that the
remaining net balance of Father's $93,565.34 net
determined hereinabove at Issue A, was determined
by the extremely competent Worker's Compensation
Judge to replace Father's earnings during the
remainder of his work-life expectancy of 402 months
at a rate of payment of $232. 75/month?

C. Whether the Trial Court committed an error of law
and/or an abuse of discretion by not further
recognizing as an alternative theory for reduction,
that Father had used the net balance of his Worker's
Compensation Settlement & Release to not only pay
off accumulated debts he accrued during a period of
time immediately preceding his Settlement, but also
to pay ongoing child support?

D. Whether the Trial Court committed an error of
Law and/or an abuse of discretion in miscalculating
the net amount of Father's present monthly pension
payment from its gross amount of $1,402.947
[Father notes that the larger issue of future child
support is complicated by the Trial Court's erroneous
rulings regarding the only asset of the parties'
marriage, i.e. his Correction Officer's pension that is
the subject of Father's separate appeal filed April 13,
205 @ docket #: C-48-CV-2007-8484.

Id.3

3 The appeal referenced in paragraph D of Defendant's Concise Statement,
FOOTNOTE CONTINUED ON THE NEXT PAGE

7
 On June 8, 2015, Judge Zito filed a twenty-two page Pennsylvania

Rule of Appellate Procedure No. 1925(a) Statement thoroughly addressing

each of the issues raised by Defendant and respectfully suggesting that each

of the issues raised by Defendant was without merit. See 1925(a)

Statement, ·, DR-0036710 (C.P. Northampton Co. Jun. 8,

2015). On November 5, 2015, the Superior Court dismissed Defendant's

appeal for failure to file a brief. See , 1450 EDA 2015 (Pa.

Super. 2015).

II. Current Order

On September 12, 2016, Defendant filed a "Petition for Modification of

an Existing Support Order," seeking to reduce his current support obligation.

See Petition for Modification, , DR-0036710 (C.P.

Northampton Co. September 12, 2016). Defendant alleged that (1) he had

a change in employment; (2) Plaintiff had failed to report income she had

been receiving since April 13, 2015, and (3) the court had erred concerning

Defendant's sources of income. See Petition for Modification,

, DR-0036710 (C.P. Northampton Co. Sept. 12, 2016). On October

26, 2016, the parties appeared for a conference on the petition with

conference officer Stacey A. Greaves ("Greaves"). See Conference Officer

Notes, 1, DR-0036710 (C.P. Northampton Co. Oct. 26,

FOOTNOTE CONTINUED FROM THE PREVIOUS PAGE
regarding the parties' spousal support order, was dismissed by the Superior Court
after Defendant failed to file a brief. See ,, 1471 EDA 2015 (Pa.
Super. 2015).

8
2016) ("Conference Notes Oct. 26, 2016"). Greaves noted that Defendant

was seeking an effective date for any modification of April 13, 2015, when

Defendant alleged Plaintiff had started receiving unreported income. See id.

Ultimately, Greaves recommended an effective date of September 12, 2016,

the date of Defendant's filing. See id. Greaves noted that "nothing

precluded either party from filing a Petition earlier ... ; both parties have

employment that was not originally reported to this section by either party .

. . ; and both parties knew, there was a change in ... [Defendant's]

pension." Id.

Defendant reported to Greaves that he had been hired by Amazon as

of October 14, 2016, earning $12.70 per hour and that he was working 40

hours per week. See id. Defendant was also receiving $201.47 gross per

month from his pension. See id. The lump sum settlement from the

Worker's Compensation compromise remained as allocated at $1, 770.49 per

month.4 See id. Greaves required a wage certification for Defendant before

entering a recommended order. See id.

Defendant subsequently provided Greaves with a wage certification

from Amazon indicating Defendant was earning $12.75 per hour working 40

4Greaves noted that Defendant still disputed the Worker's Compensation
compromise income being attributed to Defendant's total income, but that the
Worker's Compensation income had been appealed in de nova court and was
upheld. See id. Therefore, Greaves would continue to include that income ln the
support calculation. See Conference Notes Oct. 26, 2016.

9
hours per week and that his employment began on October 21, 2016.5 See

Follow up Conference Notes, , >, DR-0036710 (C.P.

Northampton Co. Nov. 10, 2016) ("Conference Notes Nov. 10, 2016").

Greaves calculated Defendant's monthly gross income as $4,182.00,

resulting in an adjusted monthly net income of $3,724.00. See id. This

monthly net income took into account Defendant's earnings from Amazon,

the monthly payment from his pension, and the allocation of Defendant's

lump sum Worker's Compensation award. See id. Greaves determined

Plaintiff's adjusted monthly net income to be $3,007.00 based upon

Plaintiff's pay stubs. See id.

Per the Uniform Support Guidelines, there was no monetary basis to

decrease Defendant's support obligation. See id. Rather, there was actually

a basis to increase his support obligation. See id. Greaves determined,

however, that such an increase would cause the Defendant undue hardship.

See id.

On November 10, 2016, Judge Roscioli entered an Order in accordance

with Conference Officer Greaves's recommendation, dismissing Defendant's

Petition to Modify without prejudice, as there was no monetary basis for a

decrease in support. See Order, ! :, DR-0036710 (C.P.

Northampton Co. Nov. 10, 2016). The Orders dated July 11, 2014 and

March 27, 2015 remained in full force and effect. See id.

5 Defendant's reported start date at Amazon varied from Defendant's original
statement to Greaves by one week. See Conference Notes Nov. 10, 2016.

10
 On December 6, 2016, Defendant filed a written demand for a de novo

hearing. See Demand for De Novo Hearing, , DR-0036710

(C. P. Northampton Co. Dec. 6, 2016). Defendant and his counsel appeared

before the undersigned for a hearing on January 25, 2017. Plaintiff did not

appear at the time of the hearing. See id. On February 14, 2017, the

undersigned entered an Order making the November 10, 2016 Order of

Court final. See Order, ·, DR-0036710 (C.P. Northampton

Co. February 14, 2017).

III. Defendant's Appeal

Defendant timely filed his Notice of Appeal on March 15, 2017. See

Notice of Appeal, i �, DR-0036710 (C. P. Northampton Co.

Mar. 15, 2017). Per our request under Pa.R.A.P. No. 1925(b), on April 10,

2017, Defendant timely filed his Concise Statement of Matters Complained of

on Appeal. See Defendant's Statement of Matters of Complained of on

Appeal, DR-0036710 (C.P. Northampton Co. Apr. 10,

2017) ("Concise Statement"). Defendant raises the following three issues:

Whether the Tria·I Court committed an error of law
and/or an abuse of discretion in failing to adjust the
present Order retroactively to May 2015 to reflect
the fact that Mother has been receiving an additional
$1,201.47 per month as (a) her pro rata portion of
Father's pension in the amount of $701.47; and (b)
a penalty provision from Father's pension of $500
per month. Mother shall continue to receive
additional income in this amount through August
2017?

11
 Whether the Trial Court committed an error of law
and/or an abuse of discretion in essentially charging
Father with three (3) full-time incomes: (a) for a
monthly pro ration portion of his former lump sum
distribution from a former workers compensation
settlement; (b) for a monthly distribution from his
pension of $201.24; and (c) for his full-time job with
Amazon.com, any of which situations alone would
normally be considered a "full-time job" and this
thus represented a violation of equal protection
under the law?

Whether the Trial Court committed an error of law
and/or an abuse of discretion by not bifurcating the
present child support order given that Defendant did
not have his present position in Amazon for over a
month, i.e. October 21, 2016, after he had
previously filed his Petition on September 12, 2016,
yet the present Order does not reflect this reduced
income for the prior five (5) weeks?

Id.
DISCUSSION

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. (citing 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.

12
Id. (citing Koller v. Koller, 481 A.2d 1218 (Pa. Super. 1984)). "The role of

an appellate Court in support proceedings is limited and a finding of abuse of

discretion ... [should] not [be] made lightly." See Haley, 549 A.2d at 1317

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

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

A. Effective Date of Support Order

Defendant first argues that we erred in making the effective date of

our Order the date Defendant filed for modification, rather than applying the

Order retroactively to May 2015 when Plaintiff began receiving payments

from Defendant's pension. See Concise Statement f 4(A).

"A party seeking to modify a support order has the burden of proving a

modification is warranted and that he/she promptly filed a modification

petition." Krebs v. Krebs, 944 A.2d 768, 774 (Pa. Super. 2008)

(citing Maddas v. Dehaas, 816 A.2d 234, 239 (Pa. Super.2003), appeal

denied, 827 A.2d 1202 (Pa. 2003)). Further, "[a]n order modifying a prior

support order is ordinarily retroactive to the date of filing of a petition for

modification." Krebs, 944 A.2d at 774 (citing Albert v. Albert, 707 A.2d 234,

236 (Pa. Super.1998)); 23 Pa.C.S.A. § 4352(e).6 Where a party

6
Section 4352(e) of Title 23 provides:
Retroactive modification of arrears.v-No court shall modify
or remit any support obligation, on or after the date it is
due, except with respect to any period during which there
is pending a petition for modification. If a petition for
modification was filed, modification may be applied to the
period beginning on the date that notice of such petition
FOOTNOTE CONTINUED ON THE NEXT PAGE

13
misrepresents his or her income, however, "the court may order a

modification of arrearages retroactive to the date a party

first misrepresented income." Id. at 774. To obtain additional retroactive

arrearages, the party must have promptly filed a modification petition upon

discovery of the misrepresentation. See id. "There is no bright-line rule for

determining if a petition for modification was promptly filed. We look to the

facts of each case and ask whether the delay was reasonable." Id. at 775,

(citing Maue v. Gilbert, 839 A.2d 430, 433 (Pa. Super.2003)).

Defendant filed his Petition for Modification on September 12, 2016.

See Petition for Modification, Ferraro v. Ferraro, DR-0036710 (C.P.

Northampton Co. Sep. 12, 2016). He sought, however, to have the support

order modified retroactively with an effective date of May 2015. Id. We did
7
not grant his request.

FOOTNOTE CONTINUED FROM THE PREVIOUS PAGE
was given, either directly or through the appropriate
agent, to the obligee or, where the obligee was the
petitioner, to the obligor. However, modification may be
applied to an earlier period if the petitioner was precluded
from filing a petition for modification by reason of a
significant physical or mental disability, misrepresentation
of another party or other compelling reason and if the
petitioner, when no longer precluded, promptly filed a
petition. In the case of an emancipated child, arrears
shall not accrue from and after the date of the
emancipation of the child for whose support the payment
is made.
23 Pa.C.S.A. § 4352{e).
7 Insofar as Defendant disputes Plaintiff's entitlement to a portion of his
pension, the parties' prior litigation and Defendant's abandoned appeal bar redress
of this issue.
FOOTNOTE CONTINUED ON THE NEXT PAGE

14
 Defendant had direct knowledge of the pension payments made to

Plaintiff since May 2015. See Order of Court dated Apr. 12, 2015.

Defendant could have petitioned to modify his support obligation at any

point after May 2015. Defendant, however, did not seek to modify his

support obligation until September 12, 2016, seventeen months later. See

generally Petition for Modification. Therefore, Defendant's petition was not

"promptly filed." 23 Pa.C.S.A. § 4352(e); see also Krebs, 944 A2.d at 774.

Assuming, arguendo, that Defendant's petition could be considered

"promptly filed," there is no other "compelling reason" to apply the order

retroactively to May 2015. 23 Pa.C.S.A. § 4352(e). The record does not

indicate Plaintiff misrepresented her income, and Defendant did not proffer

any other reason supporting the requested retroactivity.

FOOTNOTE CONTINUED FROM THE PREVIOUS PAGE
"[R]es judicata provides that where a final judgment on the merits exists, a
future lawsuit on the· same cause of action is precluded." J.S. v. Bethlehem Area
School District, 794 A.2d 936, 939 (Pa. Cmwlth. 2002). "[R]es judicata requires
the coalescence of four factors: (1) identity of the thing sued upon or for; (2)
identity of the causes of action; (3) identity of the persons or parties to the action;
and ( 4) identity of the quality or capacity of the parties suing or being sued." Id.
"Generally, causes of action are identical when the subject matter and the ultimate
issues are the same in both the old and new proceedings." Id.
In April 2015, Judge Zito determined that Plaintiff was entitled to 50% of the
proceeds from Defendant's pension as well as an additional $500.00 per month
until August 2017 to compensate Plaintiff for the months in which she did not
receive her share of the pension payout due to Defendant's actions and/or
inactions. See Order of Court, . t C-48-CV-2007-8484 (C.P.

Northampton Co. Apr. 12, 2015). The Superior C_ourt dismissed Defendant's appeal
in January 2016 for failure to file a brief. See - , 1471 EDA 2015
(Pa. Super. 2015). Any dispute as to Plaintiff's entitlement to Defendant's pension
is barred by the doctrine of res judicata, as there is an identity of parties and
claims.

15
 The record is devoid of any evidence that would require this court to

make the effective date of our support order any date other than the date of

filing of the Petition for Modification. We respectfully submit that

Defendant's first issue on appeal is without merit.

B. Defendant's Income

Defendant argues that we erred in assessing Defendant three separate

incomes any one of which, he argues, constitutes a full-time job. Defendant

contends this violates his constitutional guarantee of equal protection under

the law. See Concise Statement ,i 4(B).

By statute, income "[i]ncludes compensation for services, including,

but not limited to, wages, salaries ... ; all forms of retirement; pensions ..

. ; [and] workers' compensation." 23 Pa.C.S.A. § 4302. "When determining

income available for child support, the court must consider all forms of

income." MacKinley v. Messerschmidt, 814 A.2d 680, 681 (Pa. Super. 2002)

(citing Blaisure v. Blaisure, 577 A.2d 640, 642 (Pa. Super. 1990)).

"Generally, the amount of support to be awarded is based upon the

parties' monthly net income." Pa.R.C. P. 1910.16-2. Rule 1910.16-2(a)

defines "Monthly Gross Income" as follows:

(a) Monthly Gross Income. Monthly gross income is
ordinarily based upon at least a six-month
average of all of a party's income. The term
"income" is defined by the support law, 23
Pa.C.S.A. § 4302, and includes income from any
source. The statute lists many types of income
including, but not limited to:

16
 ( 1) wages, salaries, bonuses, fees and
commissions;
(2) net income from business or dealings in
property;
(3) interest, rents, royalties, and dividends;
( 4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust;
(6) Social Security disability benefits, Social
Security retirement benefits, temporary and
permanent disability benefits, workers'
compensation and unemployment
compensation;
(7) alimony if, in the discretion of the trier of
fact, inclusion of part or all of it is
appropriate; and
(8) other entitlements to money or lump sum
awards, without regard to source, including
lottery winnings, income tax refunds,
insurance compensation or settlements;
awards and verdicts; and any form of
payment due to and collectible by an
individual regardless of source.

Pa.R.C. P. 1910.16-2(a). The "Official Note" to Rule 1910-16.2(a) states:

[t]he trial court has discretion to determine the most
appropriate method for imputing lump-sum awards
as income for purposes of establishing or modifying
the party's support obligation. These awards may be
annualized or they may be averaged over a shorter
or longer period of time depending on the
circumstances of the case. They may also be
escrowed in an amount sufficient to secure the
support obligation during that period of time.

Pa.R.C.P. 1910-16.2(a), Official Note.

Defendant has three sources of monthly income, all of which were

properly utilized in calculating Defendant's child support obligation. See 23

Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-2(a). At the October 26, 2016

conference on Defendant's petition for modification, Defendant reported that

17
he had been hired full-time by Amazon. See Conference Notes Oct. 26.

Defendant subsequently provided a wage certification from Amazon. See

Follow up Conference Notes, DR-0036710 (C.P.

Northampton Co. Nov. 10, 2016). Defendant's Amazon income constitutes

"income" within the meaning of Section 4302 and Rule 1910. 16-2(a)( 1).

See 23 Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-2(a)(1).

The amount of income assessed to Defendant from both his pension

and his Worker's Compensation compromise were previously litigated. See

1450 EDA 2015 (Pa. Super. 2015) (dismissing

Defendant's appeal related to Worker's Compensation income for failure to

file brief); , 1471 EDA 2015 (Pa. Super. 2015) (dismissing

Defendant's appeal regarding his pension for failure to file brief). These

funds are "income" within the meaning of Section 4302 and Rule 1910.16-

2(a)( 4) and (6), respectively. See 23 Pa.C.S.A. § 4302; Pa.R.C.P. 1910.16-

2(a)(4), (6).

There is no basis for Defendant's assertion that we violated his equal

protection rights by properly applying Section 4302 and Rule 1910.16-2(a)

in calculating Defendant's monthly gross income. Therefore, we respectfully

suggest that Defendant's second issue on appeal is without merit and should

be dismissed.

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 c. Bifurcation

Finally, Defendant argues that we erred in not 'bifurcating' the

November 16, 2016 Order to reflect the fact that he did not begin his

position at Amazon until October 21, 2016.8 See Concise Statement f 4(C).

Defendant argues that the Order should have reflected a reduced income

between September 12, 2016 and October 21, 2016. Only thereafter,

Defendant contends, should the court have attributed additional income to

him from his employment at Amazon. See id. The November 16, 2016

Order was effective retroactively to September 12, 2016, the filing date of

Defendant's petition for modification. See Order of Court dated Nov. 16,

2016; Order of Court dated Feb. 14, 2017.

Following a hearing on Defendant's petition, Conference Officer

Greaves determined there was no basis for Defendant's requested

modification. See Follow Up Conference Notes Nov. 10. Rather, there was a

basis to increase Defendant's support obligation. See id. Ultimately,

Greaves did not recommend an increase in Defendant's support obligation

because she determined that such an adjustment would create an undue

hardship for the Defendant. See id. Given this finding, bifurcation was not

warranted. Thus, we respectfully suggest that Defendant's third issue on

appeal is without merit.

8
Defendant initially claimed that he began working for Amazon on October 14,
2016. See Conference Notes Oct. 26. Defendant eventually provided a wage
certification, which showed that he actually started working for Amazon on October
21, 2016. See Follow Up Conference Notes Nov. 10, 2016.

19
 CONCLUSION

Based on foregoing, we respectfully suggest that Defendant's appeal is

without merit and should be dismissed.

BY THE COURT

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