J-A23018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 S.B.                                        :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
                v.                           :
                                             :
                                             :
 S.S.                                        :
                                             :
                      Appellant              :   No. 273 WDA 2018

              Appeal from the Order Entered January 22, 2018
     In the Court of Common Pleas of Allegheny County Family Court at
                           No(s): FD-15-008183


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                            FILED JANUARY 18, 2019

        Mother, S.S., purports to appeal from the order filed on January 22,

2018, which addressed the petition for contempt filed by Father, S.B., in this

support matter pertaining to the parties’ son (“Child”), who was adopted by

Father and his late wife in 2007. We quash.

        The trial court set forth the history of this case as follows:

               Father and Mother are married and have one Child. In
        December of 2016, after a contentious, 23-day custody trial, [the
        trial court] awarded sole physical and legal custody of the Child to
        Father. See orders entered on December 12 and 14, 2016.
        Mother appealed, and [the] order was affirmed by the Superior
        Court. Mother filed for allowance of appeal in the Pennsylvania
        Supreme Court, which was denied.

              On March 16, 2017, the parties were before this [c]ourt for
        a status conference to discuss the implementation of an “aftercare
        plan” to restore Mother’s custodial rights. After the conclusion of
        the status conference [the trial court] appointed Mark Gubinsky,
        Esquire as the Aftercare Professional in this case and ordered the
        parties to cooperate with Mr. Gubinsky and the aftercare plan with
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     a goal towards restoring [Mother’s] custodial rights. [The trial
     court] ordered that the fees for the Aftercare Professional be
     shared equally by the parties. The appointment of an Aftercare
     Professional was part of the original custody order by this court,
     entered on December 14, 2016. Mother appealed this order.1
     Mother failed to comply with the order to work with the Aftercare
     Professional.

           1  The order for appointment of the aftercare
           professional was affirmed by Superior Court. See
           appeal at 74 WDA 2017.

           Father filed a claim for child support against Mother.
     Hearing Officer Chester Beattie presided over the support matter.
     On September 7, 2017, Hearing Officer Beattie issued a summary
     and recommendation for Mother to pay $3,273.70 per month for
     the support of the Child, which subsequently became a final order
     of court.

           Mother did not file exceptions to the recommendation of the
     hearing officer. Mother did not file an appeal of the final order of
     court. Mother has also paid NO child support and is now in arrears
     for more than $30,000.2 A Petition for Contempt was filed on
     November 17, 2017.

           2 At the January 18 hearing, Mother stated that she
           made three (3) payments of $1,500 each, which were
           returned. Mother made out the checks in the name of
           the child, which is contrary to the instructions
           provided to her which state that all checks should be
           made payable to PA. SCDU. It should be noted, that
           none of these checks was for the court-ordered
           amount of $3,273.70. Accordingly, [the trial court]
           found that Mother’s conduct was both obdurate and
           vexatious. Mother is a highly educated, intelligent
           woman who can certainly follow simple instructions as
           to whom the checks for child support should be made
           payable.

          On January 18, 2018[,] Father presented a Petition for
     Contempt and Special Relief. On the same date, Mother presented
     an Answer (to Father’s Petition), a New Matter, and a Motion for
     Recusal. In the New Matter, Mother asked [the trial court] to


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      vacate the order for support and to deem Rule 1910.12
      unconstitutional.

Trial Court Opinion, 4/30/18, at 3-4. This appeal followed the entry of an

order addressing the contempt petition. Both Mother and the trial court have

complied with Pa.R.A.P. 1925.

      Mother presents the following issues for our review:

             1) Did the trial court legally err and abuse its discretion in
      denying [Mother’s] New Matter seeking dismissal of the Order for
      Child Support because the September 7, 2017, purported order
      upon which it is premised is void and invalid as it was not properly
      signed and entered by the court; instead it was rubber-stamped
      [with the judge’s name] by someone other than Judge Clark, in
      violation of the Pennsylvania Rules of Civil Procedure?

            2) Did the trial court legally err and abuse its discretion in
      denying [Mother’s] New Matter, seeking to declare Pennsylvania
      Rules of Civil Procedure 1910.12 and 1910.25 unconstitutional,
      where these provisions allow the Domestic Relations Section to
      function as prosecutor, factfinder, and adjudicator, creating the
      appearance of and allowing for potential bias by permitting the
      impermissible commingling of prosecutorial and adjudicatory
      functions within the Domestic Relations Section to investigate
      alleged support arrears and violations and thus creating a fatal
      defect under the Pennsylvania Constitution?

Mother’s Brief at 3.

      Before we review the issues presented by Mother, we must address the

timeliness of this appeal, as it appears that Mother’s issues on appeal actually

concern the underlying support order dated September 7, 2017, and are

essentially an appeal from that order beyond the time period permitted by

law. Because the timeliness of an appeal implicates our jurisdiction, we cannot

address the merits of Mother’s issues before determining whether such an


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appeal was timely filed.    Krankowski v. O’Neil, 928 A.2d 284, 285 (Pa.

Super. 2007).

      It is undisputed that a notice of appeal must be filed within thirty days

of the disputed order. Pa.R.A.P. 903(a). Regarding late attempts to challenge

a support order, we have held that a party may not use a modification petition

as a substitute for an appeal by attempting to relitigate matters adjudicated

by the support order. Florian v. Florian, 689 A.2d 968, 971-972 (Pa. Super.

1997).   See Boullianne v. Russo, 819 A.2d 577, 580 (Pa. Super. 2003)

(explaining that a petition to modify an order of support cannot be a substitute

for an appeal). Likewise, a party may not use an appeal from the disposition

of a contempt petition as a substitute for an appeal from the underlying

support order to relitigate matters pertaining to the support. Therefore, in

order to challenge a support order, the party must take a timely appeal from

the order.

      Our review of the certified record reflects that Father filed a claim for child

support and the matter was referred to a hearing officer. The hearing officer

issued a summary and recommendation for Mother to pay child support to

Father. The recommendation was reduced to an order dated September 7, 2017.

Order, 9/7/17, at 1. Pursuant to Pa.R.A.P. 1910.12(f), Mother had twenty days

in which to file exceptions to the order. It is undisputed that Mother did not file

exceptions.   Accordingly, pursuant to Pa.R.C.P. 1910.12(g), the order dated

September 7, 2017, became final on September 27, 2017.               Consequently,


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Mother had until October 27, 2017, to file a timely appeal from the order dated

September 7, 2017. Again, it is undisputed that Mother did not file an appeal

from that order.

      Subsequently, on November 21, 2017, the Allegheny County Domestic

Relations Office brought a petition for contempt against Mother due to her failure

to pay child support as directed by the September 7, 2017 order. Petition for

Contempt, 11/21/17, at 1. Also, Father filed a Petition for Contempt and Special

Relief on December 1, 2017. On January 22, 2018, the trial court entered an

order addressing the contempt petitions. On February 16, 2018, Mother filed

this appeal from the January 22, 2018 order. Notwithstanding the fact that the

appeal period for the order dated September 7, 2017, expired on October 27,

2017, Mother filed with the trial court a response on March 7, 2018, in which she

challenged the validity of the support order dated September 7, 2017, and the

constitutional authority of the Allegheny County Domestic Relations Office to

handle such matters. Exceptions to Hearing Officer’s Recommendations, 3/7/18,

at 1-11.

      Pa.R.A.P. 903(a) requires a notice of appeal to be filed within thirty days

after the order dated September 7, 2017, became final. Because Mother did not

pursue a timely appeal from the trial court’s support order dated September 7,

2017, she may not do so now. Therefore, this Court is without jurisdiction to

hear the issues because they relate to the support order dated September 7,




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2017, which Mother failed to challenge or appeal. Hence, we are constrained to

quash Mother’s appeal because it pertains to the order dated September 7, 2017.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2019




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