M.A. v. F.W.A.

J-A14006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 M.A.                                     :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 F.W.A.                                   :
                                          :
                    Appellant             :   No. 762 WDA 2019

                Appeal from the Order Entered May 1, 2019
  In the Court of Common Pleas of Washington County Domestic Relations
                       at No(s): No. 361 DR 2008,
                          PASCES No. 100109958



BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 28, 2020

       This appeal by F.W.A. (“Father”) is from a May 1, 2019 order of support

for the parties’ three children. We affirm.

       Appellee, M.A., also known as M.M. (“Mother”), and Father married in

2003, separated in 2008, and divorced in December of 2009. N.T., 2/20/18,

at 6–7.    Three children were born of the marriage: A.A., presently age

eighteen, R.A., presently age fifteen, and T.A., presently age fourteen.

Id. at 5–6.

       The original monthly support order of $2,200 was entered in 2008.

Order, 10/16/08. A divorce stipulation in 2010 set child support and alimony

on a specific schedule until July 1, 2011, when alimony terminated and support

was converted solely into child support at $1,500 per month. Order, 1/7/11.
J-A14006-20


Mother filed a petition to modify support on September 8, 2017, and following

a de novo hearing before a Hearing Officer on February 20, 2018, the Hearing

Officer filed findings of fact and conclusions of law on March 8, 2018. Petition

to Modify Support, 9/8/17; Findings of Hearing Officer, 3/8/18. Both parties

filed exceptions: Father, on March 14, 2018, and Mother, on April 2, 2018.

On May 16, 2018, the trial court entered an order remanding three of Father’s

exceptions and two of Mother’s exceptions to the Hearing Officer.        Order,

5/16/18. For reasons unexplained by the parties and the trial court, the trial

court entered an amended order on May 24, 2018, that appears to be identical

to the May 16, 2018 order.

        The Hearing Officer entered new findings on December 11, 2018.

Findings of Hearing Officer, 12/11/18.     Both parties excepted to the new

findings; Father filed nineteen exceptions on December 28, 2018, consisting

of his original twelve exceptions to the March 14, 2018 Findings as well as

seven new exceptions not previously discussed at the original February 20,

2018 de novo hearing.     Mother filed one exception on January 17, 2019.

Following a hearing on March 18, 2019, the trial court entered an order on

April 8, 2019, and an amended order on May 1, 2019, denying all of Father’s

exceptions and granting Mother’s one cross-exception. Father filed this appeal

on May 20, 2019. Both Father and the trial court complied with Pa.R.A.P.

1925.




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        In its Pa.R.A.P. 1925(a) opinion, the trial court assailed the large

number of issues Father raised in his Pa.R.A.P. 1925(b) statement and

observed, “While attorneys have a duty to advocate on behalf of their clients,

there is a point where a line must be drawn and zealousness must be

restrained.” Trial Court Opinion, 11/5/19, at 3. In addition, the trial court

determined that Father’s Rule 1925(b) statement was not concise or clear and

erroneously required the court to attempt to guess what issues were appealed.

Id. at 4.

In holding some issues waived, the trial court stated:

        [F]ive (5) Exceptions were remanded to the Hearing Officer. The
        Hearing Officer was instructed to adhere to the remanded
        issues[,] and no other issue could be presented in front of the
        Hearing Officer other than the specific issues remanded. The
        remand was explicit and was not another opportunity for either
        party to re-litigate the entire case. Any issues not related to these
        five (5) issues remanded to the Hearing Officer have been
        improperly brought as they were waived when [Father] and
        [Mother] failed to Except to the issues in their March 14, 2018 and
        April 2, 2018 Exceptions and then failed to appeal this [c]ourt’s
        May 16, 2018 order. Therefore, the rulings made by this [c]ourt
        are no longer appealable and [Father’s] only basis for appeal can
        be based upon the Findings. Pursuant to Pa.R.A.P. 302(a), “issues
        not raised in the lower court are waived and cannot be raised for
        the first time on appeal.” (Current with amendments received
        through September 15, 2019). Therefore, this [c]ourt should not
        have to address issues untimely brought and outside the scope of
        the remand.

Id. at 4–5

(footnote omitted). Thus, the trial court addressed only the issues

that related to the five claims remanded to the Hearing Officer on May 16,

2018.

        On appeal, Father raises the following issues:




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      [A.] Did [Father] waive his issues on appeal by failing to raise
      concise statements of error or by failing to otherwise preserve his
      issues for appeal?

      [B.] Did the trial court err in permitting the inclusion of retroactive
      support for over six (6) years preceding the filing of the Petition
      for Modification of Support?

      [C.] In including and calculating retroactive support, did the trial
      court err in failing to include substantial retroactive income of
      [Mother] while simultaneously including the retroactive income of
      [Father]? Restated; did the trial court err in failing to calculate
      both parties’ incomes for the Basic Support Obligation as required
      under the Support Code?

Father’s Brief at 7.

      Father first issue assails the trial court’s determination that any claims

made in Father’s first round of exceptions are now waived. Contrary to the

trial court, Father maintains that he could not have appealed the trial court’s

May 16, 2018 order remanding those exceptions because it was not a final

order “dispos[ing] of all claims as a related to child support.” Father’s Brief

at 26–27. In support, Father cites Deasy v Deasy, 

730 A.2d 500

(Pa. Super.

1999), wherein this Court stated, “The Superior Court has ruled that an order

that remands some claims for hearing before a hearing officer is by definition

an interlocutory order because it does not resolve all issues related to an

award of child support.”

Id. at 503.

      Father also takes issue with the trial court’s position that Father’s appeal

concerns matters that are outside the scope of the remand hearing, asserting

that such fact is irrelevant because the trial court’s denial of his March 14,

2018 exceptions and December 28, 2018 exceptions are reviewable in this


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appeal. Father’s Brief at 28. He posits that while the remand hearing was to

be limited in scope, the effect of the trial court’s remand order was to reject

the existing findings of the Hearing Officer.

Id. at 29.

Thus, Father contends

the Hearing Officer “returned to the trial court a significantly different set of

findings, to which Father also excepted.

Id. Finally, in his

first issue, Father maintains that he did not raise an

“outrageous” number of issues in his Pa.R.A.P. 1925(b) statement, thereby

challenging the trial court’s reliance on case law finding such statements to be

waived for failing to be identified in a concise manner. Father’s Brief at 30–

31.

      We conclude that we need not determine whether Father failed to

preserve issues during the exception process because he otherwise waived

the majority of his errors complained of on appeal by failing to include a

concise statement of each matter in his Statement of Questions Involved in

his appellate brief. Pa.R.A.P. 2116 (“The statement of the questions involved

must state concisely the issues to be resolved. . . . No question will be

considered unless it is stated in the statement of questions involved or is fairly

suggested thereby.”). Moreover, we must ensure that both substantive issues

raised on appeal likewise were included in Father’s Pa.R.A.P. 1925(b)

statement.    See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).


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      As Mother avers, we are able to categorize Father’s issues into two

succinct topics: “namely, (1) retroactivity; and (2) [Mother’s] 2014 income

and earning capacity.”         Mother’s Brief at 10; Father’s Brief at 7.      Because

Father has included only two substantive issues in his Statement of Questions

Involved   in   his   brief,    they   are    the   only   issues   before   the   court.

Commonwealth v. Dunphy, 

20 A.3d 1215

, 1218 (Pa. Super. 2011) (Issues

raised in Pa.R.A.P. 1925(b) statement that are not included in appellate brief

are abandoned).

      The standard of review for modifications to a child support award 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.

Rich v. Rich, 

967 A.2d 400

, 405 (Pa. Super. 2009) (citations omitted).

Further, “with regard to 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.” Hogrelius v. Martin, 

950 A.2d 345

,

348 (Pa. Super. 2008) (citation omitted).




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       Thus, we examine the second and third issues in Father’s brief. Father

argues the trial court erred in permitting the inclusion of retroactive support

for over six years preceding the filing of Mother’s Petition for Modification of

Support. Father’s Brief at 33. Father asserts that the trial court’s order to

the Hearing Officer to take into consideration Father’s earnings since October

10, 2008, effectively resulted in a determination that support should be

retroactive to a time preceding the filing of Mother’s petition to modify.1

Father’s Brief at 33–34. Father contends this was error because child support

should be retroactive to the date of filing unless specific and appropriate

justification is shown.

Id. at 33

(citing Christianson v. Ely, 

838 A.2d 630

(Pa. 2003)). We assume that Father is referring to the trial court’s disposition

of Mother’s exceptions in its May 24, 2018 order, as follows:

       14. [Mother’s] Second Cross-Exception is hereby granted. This
       matter shall be remanded to the Master to clarify if [Father’s]
       change in earnings since the entry of the October 10, 2008
       Support Order were taken into consideration, and if not[,] the
       Master shall take the change in earnings into consideration.

       15. [Mother’s] Third Cross-Exception is hereby granted. This
       matter shall be remanded to the Master to clarify if [Father’s] two
       (2) lump sum payments received after the entry of the October
       10, 2008 Support Order were taken into consideration, and if
       not[,] the Master shall take the change in earnings into
       consideration.



____________________________________________


1  Father does not clarify to what he is referring in making these broad
statements, which apparently led to the trial court’s frustration in crafting its
Pa.R.A.P. 1925(a) opinion and compels that we, too, must make assumptions
concerning Father’s argument.

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Amended Order, 5/24/18, at ¶¶ 14–15.

       Of the nineteen claims of error listed in Father’s Pa.R.A.P. 1925(b)

statement, only one contention relates to retroactivity:         that is, issue six,

which states, “The trial court violated 23 Pa C.S. §4352(e) when it awarded

retroactive modification when there was no misrepresentation by [Father] or

any other compelling reason to preclude the petitioner from filing a Petition

for Modification, and no record existed to make a finding that such a reason

existed.”    As this is the only preserved claim related to retroactivity, we

confine our consideration of issue (B) to its identification in paragraph six of

Father’s concise statement.          See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the provisions

of this paragraph (b)(4) are waived.”). Nexus Real Estate, LLC v. Erickson,

174 A.3d 1

, 4 (Pa. Super. 2017). All other arguments Father makes in his

brief related to retroactivity are waived.

Id. In this regard,

Father cites 23 Pa.C.S. § 4352(e),2 which governs

retroactivity of a support order.        He contends that the trial court failed to

____________________________________________


2   § 4352. Continuing jurisdiction over support orders

                                      * * *

       (e) Retroactive modification of arrears.--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



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provide any analysis concerning whether Mother was precluded from filing for

support earlier as a result of misrepresentation, disability, or other compelling

factor as required by Section 4352. Father’s Brief at 35–36. Father also avers

that the Hearing Officer and trial court erred in failing to determine at what

point Mother no longer was precluded from filing a petition for modification,

also as required by Section 4352.

Id. at 36, 37.

       Father posits that the Hearing Officer failed to find that Father had

violated his duty to notify the domestic relations office within seven days of

any material change in circumstances relevant to a support order, pursuant

to 23 Pa.C.S. § 4353.3 Father’s Brief at 38. He therefore suggests that the


____________________________________________


       the date that notice of such petition 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. § 4352.

3   § 4353. Duty to report

       (a) Notice of changes affecting support.--An individual who
       is a party to a support proceeding shall notify the domestic
       relations section, the department and the other parties in writing
       or by personal appearance within seven days of any material



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sanction for a failure to give notice is a finding of contempt of court, not

consideration of retroactive support as the trial court did herein.

Id. at 38.

       The trial court did not address Father’s claim that it awarded retroactive

modification of support to a time preceding the filing of Mother’s petition to

modify. Trial Court Opinion, 11/5/19, at 8. Rather, the trial court held that

the issue was “outside the scope of the remand to the Hearing Officer.”

Id. Father responds that

after the first remand, the Hearing Officer “returned to

the trial court a significantly different set of findings and recommendations

than it previously delivered, which included years of retroactive support

obligations.” Father’s Brief at 29. Therefore, Father posits that he could not

have excepted to findings that had not yet been made.

Id. at 29.

       Father’s issue lacks merit. The trial court properly calculated Father’s

net disposable income and corresponding support obligation retroactive to

January 1, 2012.           While Father admittedly cites the law concerning

retroactivity, 23 Pa. C.S. § 4352(e), and Pa.R.C.P. 1910.17(a)4, we agree with

____________________________________________


       change in circumstances relevant to the level of support or the
       administration of the support order . . . .

23 Pa.C.S. § 4353.

4   Pa.R.C.P. 1910.17(a) provides, in pertinent part:

       An order of support shall be effective from the date of the filing of
       the complaint or petition for modification unless the order specifies
       otherwise. . . . [A] modification of an existing support order may
       be retroactive to a date preceding the date of filing if the petitioner



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Mother that Father inappropriately attempts “to make the trial court’s ability

to retroactively set the effective date of a support order dependent on whether

the trial court finds an obligor in contempt of his duty to report pursuant to 23

Pa.C.S.A. § 4353(a).”        Mother’s Brief at 14–15.   Such a claim is directly

defeated by well settled case law. See, e.g., Albert v. Albert, 

707 A.2d 234

(Pa. Super. 1998) (retroactive modification of support justified where opposing

party misrepresented income for child support purposes), and Krebs v. Krebs,

944 A.2d 768

(Pa. Super. 2008) (increased retroactive child support owed from

date the appellant first failed to report increased income).

       Thus, Father’s failure to report a substantial and continuing change in

circumstances satisfied the misrepresentation or compelling-reason burden

necessary to warrant retroactive modification. Father admitted that he failed

to inform Mother of any increase in his pay between the years 2008 until 2017,

as follows:

       Q [By Mother’s counsel]: With regard to the increase in pay that
       you received between 2008 and 2017, did you ever report any of
       those to Domestic Relations?

       A [By Father]: Did I report them? No. I sent a letter out once
       in a while if you want to go back and review them.

       Q You never took them up on that or supplied additional
       information to Domestic Relations from 2008 until 2017?


____________________________________________


       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.

                                          - 11 -
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      A No.

N.T., 2/20/18, at 98.

      Moreover, while the trial court declined to address the issue of

retroactivity, it pointed out that:

      [Father] received a lump sum payment in the amount of $68,000
      that he never reported to [Mother]. There was a purposeful
      omission on behalf of [Father] about receiving these payments. It
      is unknown why [Father] believes he should receive some sort of
      preferential treatment and why his lack of disclosure of this
      amount of money should be ignored.

Trial Court Opinion, 11/5/19, at 8.

      Father’s own admission is evidence of misrepresentation and therefore,

is a basis for retroactivity as explained in Pa.R.C.P. 1920.17(a) and 23 Pa C.S.

§ 4352(e). We do not find an abuse of discretion.

      In his final issue, Father argues in the alternative, that even if the trial

court did not err in ordering retroactive support, the trial court erred in failing

to include substantial retroactive income of Mother, while simultaneously

including the retroactive income of Father. Restated, he suggests this question

asks whether the trial court erred “in failing to calculate both parties’ incomes

for the Basic Support Obligation as required under the Support Code.” Father’s

Brief at 7. Father suggests this claim assumes, for purposes of argument, that

the trial court did not err in ordering retroactive support, but rather, posits that

the trial court did not include Mother’s income for the year 2014, which

allegedly amounted to $137,000.       Father’s Brief at 41.    In addition, Father




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maintains that the trial court failed to assess Mother an actual earning capacity

for the years 2012 through 2017.

Id. Father cites Pa.R.C.P.

1910.16-2 and asserts that Mother testified to

receiving “lump sum payments totaling over $137,000.00 in 2014” resulting

from an oil and gas lease. Father’s Brief at 44 (citing [N.T., 2/20/18, at 35,

65]). Father argues that these payments should have been included when

calculating Mother’s gross monthly income. Father’s Brief at 44–45 (citing

Darby v. Darby, 

686 A.2d 1346

(Pa. Super. 1996)). Father contends that

the Hearing Officer interpreted the trial court’s remand order as a directive

not to consider additional income from Mother, and the trial court failed to

correct this when exceptions were filed. Father’s Brief at 45.

      We initially note that any allegation that the trial court failed to assess

Mother an earning capacity is waived. Not only is that issue omitted from the

Statement of Questions Involved in Father’s appellate brief, it also was not

included in Father’s Pa.R.A.P. 1925(b) statement. We have stated:

      [I]t is well-settled that issues not included in an appellant’s
      statement of questions involved and concise statement of errors
      complained of on appeal are waived. Krebs v. United Refining
      Co. of Pa., 

893 A.2d 776

, 797 (Pa. Super. 2006) (citations
      omitted) (“We will not ordinarily consider any issue if it has not
      been set forth in or suggested by an appellate brief’s statement of
      questions involved, and any issue not raised in a statement of
      matters complained of on appeal is deemed waived.”). With
      respect to issues not included in a concise statement, our
      Supreme Court has instructed that this Court has no discretion in
      choosing whether to find waiver. Waiver is mandatory, and this
      Court may not craft ad hoc exceptions or engage in selective
      enforcement. City of Philadelphia v. Lerner, 

151 A.3d 1020

,


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      1024 (Pa. 2016) (quoting Commonwealth v. Hill, 

609 Pa. 410

,
      

16 A.3d 484

, 494 (2011)).

In re M.Z.T.M.W., 

163 A.3d 462

, 466 (Pa. Super. 2017). Because Father

failed to include a challenge to Mother’s earning capacity in his statement of

questions involved and concise statement, that aspect of the issue is waived.

      Our review of the record further compels the conclusion that Father also

has waived any claim regarding Mother’s 2014 income. The trial court found

this issue waived on a number of bases, including the fact that following the

Hearing Officer’s issuance of her Findings of Fact on March 8, 2018, “this issue

was never [e]xcepted to from the beginning[,] and so it was waived when

[Father] did not [e]xcept to it in his March 14, 2018 Exceptions.” Trial Court

Opinion, 11/5/19, at 10.

      Father attempts to counter this by suggesting he raised the issue in

Paragraphs one and seven of his March 14, 2018 exceptions. However, those

paragraphs relate, instead, to Mother’s photography income in 2017 in

paragraph one, and impliedly, 2018 income in paragraph seven.          Father’s

Exceptions, 3/14/18. They do not reference Mother’s 2014 income.

      Our review of the record makes clear that despite knowing that Mother

had received $137,000 from Range Resources in 2014 for an oil and gas

pipeline payment, Father did not file an exception regarding this omission from

Mother’s income in his March 14, 2018 exceptions. Indeed, at the February

20, 2018 hearing de novo, Father testified at great length that he was aware

of Mother’s receipt of a lump-sum payment in 2014. N.T., 2/20/18, at 95–

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96. During cross-examination, Father admitted that he not only knew of the

amount Mother received in 2014, he actually negotiated “on her behalf to get

her the additional funds.”

Id. at 96.

The trial court’s finding of waiver for

Father’s failure to include the issue in his March 14, 2018 Exceptions is

justified, and we do not find that the trial court abused its discretion in so

concluding. MacAleer v. MacAleer, 

725 A.2d 829

, 835 (Pa. Super. 1999)

(Husband waived his right to appellate review of issue because he failed to

first present it to the trial court by filing exceptions to master’s calculations);

Pa.R.C.P. 1920.55-2(b) (“Matters not covered by exceptions are deemed

waived unless . . . leave is granted to file exceptions raising those matters.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2020




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