Lewis v. Lewis. 2. An untimely appeal presents a jurisdictional issue and must be quashed. (Appealed to Superior Court October 17, 2005.

Transcription

1 2006 MBA 14 MONTGOMERY COUNTY LAW REPORTER [143 M.C.L.R., Part II DOMESTIC RELATIONS Child Support Material Change in Circumstances APPEAL AND ERROR Concise Statement of Matters Complained Timeliness Appeal taken from Order denying Father s Petition to Modify Support Award. The trial court concluded that appeal should be quashed, as it was untimely filed. However, with regard to the issue of the father s Petition, the trial court concluded that, after carefully considering all of Father s testimony and evidence, Father failed to meet his burden of proving by competent evidence a material and substantial change in circumstances. As to the other issues raised on appeal, the trial court also held that any other issues raised on appeal were waived given the Father s verbose Pa.R.A.P. 1925(b) statement. 1. A notice of appeal that is filed more than 30 days after notice of entry of a support Order is untimely. 2. An untimely appeal presents a jurisdictional issue and must be quashed. 3. Pursuant to Pa.R.A.P. 903(a), a notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken. 4. A provision of an agreement regarding child support, visitation and custody shall be subject to modification by the court upon a showing of changed circumstances. 5. Once a support order is in effect, a petition for modification may be filed at any time and shall be granted if the requesting party demonstrates a substantial change in circumstances. 6. It is the petitioning parent s burden to specifically aver the material and substantial change in circumstances upon which the petition is based. 7. The moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified order. 8. The trial court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed circumstances. 9. A finding of either a material and substantial change in circumstances or no such change is reviewed on appeal for an abuse of discretion. 10. An abuse of discretion occurs where there is an error in judgment, a manifestly unreasonable decision, or a misapplication of law. 11. For purposes of determining child support, the fact-finder is entitled to weigh the evidence presented and assess its credibility. 12. It is axiomatic that the fact-finder is free to accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence. 13. Where an appellant files a lengthy and verbose 1925(b) statement, the issues raised therein are waived on appeal. (Appealed to Superior Court October 17, 2005.) C. P. Montgomery County, Family Division. No and No Pacses No Jean Lewis v. Stephen Lewis. Sean E. Cullen, of Mullaney & Mullaney in Skippack, for Jean Lewis. Stephen Lewis, Pro Se. DANIELE, J., November 29, 2005

2 MONTGOMERY COUNTY LAW REPORTER ] 2006 MBA Defendant, Stephen Lewis, has appealed to the Superior Court of Pennsylvania from our Order dated August 12, 2005, that: 1) recalculated a child support Order to take into account the emancipation of the parties minor children; but 2) otherwise denied defendant/father s petition to modify the support order based on an alleged change of circumstances. For the following reasons, we believe our Order was proper and should be affirmed. This is a child support case. FACTS AND PROCEDURAL HISTORY Plaintiff Jean Lewis ( Mother ) and defendant Stephen D. Lewis ( Father ) were married on December 31, Five children were born during the marriage. The parties separated on October 22, The parties entered into a marital settlement agreement on June 9, 1993 that states in pertinent part: Section 12. Child Support. 1.1 Husband shall pay to Wife as and for the support of the minor children, namely, Juliette Elizabeth Lewis, born August 26, 1982, age ten years; Crystal Michelle Lewis, born May 1, 1988, age four years; Laura Jean Lewis, born May 2, 1987, age five years; Stephen Dudreck Lewis, Jr., born November 14, 1985, age seven years; Jonathan George Lewis, born January 11, 1993, age two months the sum of $1, per child, per month, payable one-half on the first and one-half on the fifteenth day of each month, for an aggregate total of $7, per month, commencing July 1, Said amount shall continue until August 1, 1993, whereupon at such time said child support payments shall increase to $1, per child, per month, for an aggregate total of $7, per month. Said sum of $7, shall be payable one-half on the first and one-half on the fifteenth day of each month, commencing August 1, 1993, and continuing on the first and fifteenth day of each consecutive month thereafter until October 1, Commencing October 1, 1997, Husband shall pay to Wife said child support payments shall decrease to $1, per child, per month, for an aggregate total of $5, per month. Commencing August 1, 1998, Husband shall pay to Wife and for the support of the minor children the sum of $1, per month, per child, for an aggregate total of $5, per month, payable one-half on the first and one-half on the fifteenth day of each consecutive month thereafter, until Husband s child support obligations are terminated pursuant to subparagraph 12.7 below or further Order of a Court of competent jurisdiction or whichever occurs earliest. 1.2 As and for additional child support Husband shall pay to Wife $3, per year so long as he is making any child support payments. Said payments shall be paid by wage assignment. Husband agrees to make said payment on October 1 st, the year it is due. (The same exceptions as stated in paragraph 12.1 shall apply). 1.3 As and for additional child support Husband shall pay 75% of all uncovered medical payments on behalf of Wife and the minor children. Uncovered medical payments shall include prescription drugs. Husband shall maintain and pay the monthly medical insurance premium payments on behalf of Wife and the minor children. Husband shall provide dental insurance for Wife and the minor children. Wife agrees to pay 25% of all uncovered medical payments of the minor children.

3 2006 MBA 14 MONTGOMERY COUNTY LAW REPORTER [143 M.C.L.R., Part II 1.4 As and for additional child support Husband and Wife shall split all uncovered dental costs 50/ Husband s obligation to pay child support to Wife with respect to each minor child shall terminate with respect to each minor child of the parties upon the occurrence of the earliest of the following events: The death of the child; The marriage of the child; The child becomes emancipated; The duty of support is terminated pursuant to Civil Code Section (a child has attained the age of 18, is a full-time high school student, and resides with a parent, until such time as he or she completes the 12 th grade or attains the age of 19, whichever occurs first) As each child turns 18, child support (as stated in paragraph 12.1) shall be reduced pursuant to the California guidelines in existence at the date this agreement is received. (Marital Settlement Agreement dated June 9, 1993). On February 22, 1994, May 11, 1995, and August 26, 1996, several support Orders were entered in Kern County, California (all of which were based on stipulations and/or agreements of the parties). The stipulated Order dated May 11, 1995, states in pertinent part: The parties agree that the Marital Settlement Agreement ( MSA ) previously entered into between the parties and made an order of this court in the Stipulated Judgment on Remaining Issues entered March 8, 1994, shall be modified as follows and all modified provisions shall become the order of the court. 1. Paragraph 12.1 shall be modified to provide that commencing May 1, 1995, child support shall be payable to the Petitioner by the Respondent in the sum of $5, per month for the support and maintenance of the parties minor children and said sum shall continue until Respondent s child support obligation is terminated pursuant to subparagraph 12.7 of the MSA or further order of a court of competent jurisdiction, whichever first occurs. Said child support shall be paid one-half on the first and one-half on the fifteenth day of each month. All other child support provisions of the MSA shall remain in full force and effect, including the provision for an annual payment of $3, (Stipulation and Order dated May 11, 1995 entered in Kern County, California). Following a conference with the undersigned on February 17, 1999, this Court entered the following Order: AND NOW, this 17 th day of February, 1999, it is hereby ORDERED that the Foreign Support Orders at Number entered on March 8, 1994, May 11, 1995, and August 28, 1996, issued by the Superior Court of the State of California in and for the County of Kern, whereby the Defendant, Stephen D. Lewis, has certain obligations pursuant to said California Orders for the support of the parties five (5) children, Juliette Elizabeth (DOB: August 26, 1982), Crystal Michelle (DOB: May 1, 1988), Laura Jean (DOB: May 2, 1987), Stephen Dudreck (DOB: November 14, 1985) and Jonathan George (DOB: January 11, 1993), are hereby registered and confirmed by the Court of Common Pleas of Montgomery County, Pennsylvania.

4 MONTGOMERY COUNTY LAW REPORTER ] 2006 MBA IT IS FURTHER ORDERED that the status and determination of any arrears owed by Defendant, Stephen D. Lewis, pursuant to said California Orders shall be reserved and determined upon the filing of the appropriate petition by either party. IT IS FURTHER ORDERED that pursuant to the Orders registered in this matter, and in addition to all other obligations contained in the above-listed Orders, Defendant, Stephen D. Lewis, shall pay child support for the support of the parties five (5) children in the amount of $5,700 per month through the Domestic Relations Section of Montgomery County, Pennsylvania. IT IS FURTHER ORDERED that all other conditions contained in the California Orders shall remain in full force and effect, and shall be enforceable in the Court of Common Pleas of Montgomery County, Pennsylvania. (Order dated February 17, 1999). On February 17, 1999, Father also filed a petition to modify support on the basis of a reduction in income, which was subsequently denied by this Court on January 28, 2000, after hearing. Throughout the years since January 28, 2000, various proceedings have been held on petitions for contempt filed by Mother and/or modification filed by Father. On June 27, 2000, at a contempt hearing, Father was found in contempt of Court and directed to pay the full balance of his arrears (which, as of June 27, 2000 was $26, plus $840 in attorney s fees, for a total of $27, ) or be remanded to Montgomery County Correctional Facility. On August 9, 2000, Father filed a Petition to Modify/Vacate Order of Support in the Domestic Relations Office which merely requested removal of an emancipated child, Juliette, from the Order. At the time of filing, Father was incarcerated at Montgomery County Correctional Facility, but had been released prior to any conciliation conferences and/or Master s hearings. Father failed to appear at any of the proceedings on his petition, and as a result of said proceedings, an Order was entered by the Honorable William J. Furber of this Court providing, inter alia, although child, Juliette (DOB 8/26/82) may be emancipated, child support must be recalculated for the remaining four children per parties marital settlement agreement. The parties Marital Settlement Agreement provides under paragraph 12.8 that As each child turns 18, child support (as stated in paragraph 12.1) shall be reduced pursuant to the California Guidelines in existence at the date this agreement is received. The date on which this Agreement was entered by the Court in Kern County, California was February 22, Contempt hearings were held on October 7, 28, 30, and 31, 2003, January 9, 2004, concluding February 13, On February 10, 2004, Father filed a petition to modify the support Order. On March 5, 2004, the Court issued Findings of Fact, stating that Father had deliberately and willfully failed to make regular support payments through PASCDU. Consequently, the Court issued the following Order: AND NOW, this 5 th day of March, 2004, Defendant having been found in contempt, he is directed to pay the sum of $135,000 to PASCDU on account of support in the above captioned matter, or remain incarcerated at the Montgomery County Correctional Facility of a period of six months from the date of entry to that facility.

5 2006 MBA 14 MONTGOMERY COUNTY LAW REPORTER [143 M.C.L.R., Part II The Domestic Relations Office of Montgomery County, Pennsylvania, is directed to schedule a conciliation conference to be held within the next 30 days, to calculate the credits to which Defendant is entitled by virtue of emancipation of Juliette in June of Said calculation is to be made pursuant to applicable California law referenced in the parties separation agreement, and is to take into consideration only the removal of one child (of five) from the Order. In light of prior denials of Defendant s Petition to Modify Support, the calculations will be based on the income of the Defendant at the time the Order was entered. Pursuant to the Marital Settlement Agreement, the calculations will be made attributing to Plaintiff no income or earning capacity. Also, the Domestic Relations Section is directed to consider at the conciliation conference Defendant s recently filed February 10, 2004 Petition to Modify Order of Support and separately consider the merits of that Petition as it would pertain to the four remaining children on the Support Order, retroactive to the filing date of that Petition. Further, the Domestic Relations Office is to consider, at the aforementioned conciliation conference, the emancipation of Stephen, Jr., and in its prospective order, provide for a reduced amount of support as of his anticipated emancipation date. The Domestic Relations Office is directed to add $14,400 to the arrears which represents $3,600 (to be paid by October 1 st each year) for the years 2000, 2001, 2002, [and] 2003, if not already added. In addition, $1, is to be added to arrears for phone bills. The Domestic Relations Office is directed to credit $7,000 for direct payment in Spring of 2002 if this credit has not already been given. The Domestic Relations Office is directed to add to the arrears all medical expenses actually paid by Plaintiff for which there has been no medical insurance coverage or reimbursement. Attorney for Plaintiff is DIRECTED to redact from his bill charges for a second attorney s appearance at conferences, hearings, etc., and to resubmit the redacted bill at the DRO conciliation conference scheduled on Defendant s February 10, 2004 Petition to Modify. DRO is DIRECTED to add to the arrears the corrected amount of Plaintiff s attorneys fees to enforce the parties Marital Settlement Agreement. In the absence of any emergencies for which the undersigned is unavailable, all further Orders submitted to the Court for signature in this case, shall be submitted directly to the undersigned, and not to any other judge of this Court including a routine signing judge. (Contempt Order dated March 5, 2004). On September 8, 2004, a support conciliation conference was held to recalculate the child support Order pursuant to the California guidelines, including any credits to which Father was entitled by virtue of the emancipation of Juliette in June of Subsequently, both parties filed timely exceptions to the conference officer s recommendation.

6 MONTGOMERY COUNTY LAW REPORTER ] 2006 MBA A hearing de novo was held before the undersigned on August 11-12, 2005 to address all of the issues raised in the March 5, 2004 Order and to determine a reasonable payment on the arrearages based on Father s income. At the conclusion of the hearing, the Court entered the following Order on the record in open court: 1. Father s petition to modify the support order based on a change of circumstances was denied; 2. Father was to pay $3,648 per month in support and $2,052 per month toward arrears; 3. beginning June 5, 2006, when Crystal will be emancipated, Father s support obligation will be reduced to $2,280 per month, and the payment towards arrears will be raised to $3,420 per month; 4. when Jonathan becomes emancipated, the arrears payment will continue in an amount of $5,700 per month until paid in full; 5. the sum of $6, was to be added to the support Order for unreimbursed medical expenses; 6. the sum of $580 was to be added to the arrears for services rendered by Tri-County eye doctors; 7. the sum of $27, was to be added to the arrears on account of Charles J. Meyer s legal fees; 8. the sum of $7, was to be added to the arrears on account of attorney s fees for Sean Cullen, Esquire; and 9. Father was directed to make a lump sum payment of $50,000 by September 30, On October 17, 2005, Father filed notice of appeal to the Superior Court of Pennsylvania from our Order dated August 12, On October 27, 2005, the trial court directed Father to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, Father filed a six-page 1925(b) statement. DISCUSSION The primary issue in this case is whether Father met his burden of proving by competent evidence that there had been a substantial and material change in circumstances serving as grounds for modification of the child support Order. We believe Father failed to present sufficient evidence to prove such a change in circumstances. Before addressing Father s appeal on the merits, we respectfully suggest that the instant appeal should be quashed on the basis that the notice of appeal was untimely. [1], [2] A notice of appeal that is filed more than 30 days after notice of entry of a support Order is untimely. Lyday v. Lyday, 519 A.2d 967, (Pa.Super. 1986). An untimely appeal presents a jurisdictional issue and must be quashed. Id. [3] Pursuant to Pa.R.A.P. 903(a), a notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken. Clearly, defendant s notice of appeal from the August 12, 2005 order is well beyond the thirty day period provided by Rule 903(a) and is, therefore, untimely. Consequently, the instant appeal should be quashed.

7 2006 MBA 14 MONTGOMERY COUNTY LAW REPORTER [143 M.C.L.R., Part II We turn now to the merits of Father s appeal. [4], [5], [6] We begin our analysis with 23 Pa.C.S. 3105(b), effect of agreement between parties, which provides that: A provision of an agreement regarding child support, visitation and custody shall be subject to modification by the court upon a showing of changed circumstances. Once a support order is in effect, [a] petition for modification may be filed at any time and shall be granted if the requesting party demonstrates a substantial change in circumstances. 23 Pa.C.S. 4352(a); see also Pa.R.C.P (stating standard for modification). Accordingly, it is the petitioning parent s burden to specifically aver the material and substantial change in circumstances upon which the petition is based. Pa.R.C.P (a); see also Yerkes v. Yerkes, 824 A.2d 1169, 1171 (Pa. 2003). [7], [8] The moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified order. Samii v. Samii, 847 A.2d 691 (Pa.Super. 2004). The trial court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed circumstances. Id. [9], [10] A finding of either a material and substantial change in circumstances or no such change is reviewed on appeal for an abuse of discretion. Yerkes, 824 A.2d at An abuse of discretion occurs where there is an error in judgment, a manifestly unreasonable decision, or a misapplication of law. Id. As we noted above, the trial court denied a previous petition to modify on January 28, Consequently, we looked at the time period from January 28, 2000 to February of 2004 (when Husband filed the petition that is the subject of the present appeal) to determine whether a change in circumstances has occurred. Father contends that, from 2000 to 2004, his circumstances changed because he is no longer in the business that he was previously in. Father contends that he has lost his previous business contacts because he is entering the legal profession. He contends further that he is in the process of starting and building a mediation business, and that he is presently working as a law clerk for an attorney until he can re-take the California bar exam (N.T., 8/12/05, pp. 40-1). At the hearing, counsel for Father summarized the change of circumstances as follows: (N.T., 8/12/05, p. 42). I think the fact that he now has a permanent regular job and that I mean, I think that is a true change of circumstances. He no longer is just running his own business. He s actually an employee for another company. And I think at this time with his J.D. that he has, without having his license, that he s doing the best he can to generate the income in Bakersfield. That s about what a law clerk goes for, is between $2,600 and $3,000 a month. He has plans to take the California bar exam when it s next offered. If he passes that, my client s hope is that we can work with Montgomery County, work with Ms. Lewis so that my client can obtain his license and generate better income. After carefully considering all of Father s testimony and evidence, the trial court found that Father failed to meet his burden of proving by competent evidence a material and substantial change in circumstances. In reaching our decision, we reviewed documentary evidence submitted by Father, including his 2004 income tax return, cancelled checks, and a ledger he prepared. The record reflects, however, that Father s evidence was inconsistent, unreliable and even incomprehensible.

8 MONTGOMERY COUNTY LAW REPORTER ] 2006 MBA For example, Father contended that he earned only $29,090 in 2003, yet Schedule C of his 2004 federal income tax return listed business expenses amounting to $42,110. (N.T., Order of Court, 8/12/05, pp. 8-11). Furthermore, Father submitted ledgers that supposedly presented an accurate picture of his finances. However, the ledgers were confusing, and Father could not answer many of the Court s questions about his haphazard recordkeeping. (N.T., Order of Court, 8/12/05, p ). Because Father failed to offer a satisfactory explanation of the discrepancies in his financial records, the Court found Father s evidence unreliable. In addition, the Court denied Father s petition for modification because Father s testimony was not credible. Throughout the hearing, Father was not sure how to answer many of the Court s questions about his finances, and he frequently claimed that he could not remember significant details. In addition, Father stated that he was not sure what certain expenses were for. [11], [12] For purposes of determining child support, the fact-finder is entitled to weigh the evidence presented and assess its credibility. McClain v. McClain, 872 A.2d 856, 863 (Pa.Super. 2005). It is axiomatic that the fact-finder is free to accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence. Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa.Super. 2001). Coupled with all of the discrepancies in Father s records, the Court found Father s testimony to be completely incredible. Because Father failed to present reliable testimonial or documentary evidence, we found that Father failed to meet his burden of proving by competent evidence that a material and substantial change of circumstances had occurred. The undersigned explained the Court s rationale as follows: THE COURT: There s no way I believe that Mr. Lewis lives in the lifestyle that he would like to have me believe he lives in, nor is there any way that I would believe that he is not capable of earning as much, if not more, than he earned in It s just that it s a little more difficult for Mrs. Lewis to prove it, but she doesn t have to because the burden is on him to prove that his circumstances changed significantly enough to justify a modification from the original order. Accordingly, his petition to modify the support order is denied except to the extent that I ve already done the calculations on the children who have been emancipated. (N.T., Order of Court, 8/12/05, pp. 17-8). Having explained the reasons for denying Father s petition to modify the support Order, we would ordinarily address at this point of our Opinion the specific allegations of error raised in appellant s concise statement. Unfortunately, Father filed a six-page 1925(b) statement written in narrative form that included approximately twenty-four issues. [13] In Jones v. Jones, 878 A.2d 86 (Pa.Super. 2005) and Kanter v. Espstein, 866 A.2d 394 (Pa.Super. 2004), alloc. denied, 880 A.2d 1239, our Superior Court suggested that where, as here, an appellant files a lengthy and verbose 1925(b) statement, the issues raised therein are waived on appeal. For all of the above reasons, we believe our Order dated August 12, 2005 was proper and should be affirmed. (Appealed to Superior Court October 17, 2005.)