J-A05006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MARGARET RICE                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES RICE                                 :   No. 1564 WDA 2018

                Appeal from the Order Entered October 31, 2018
       In the Court of Common Pleas of Allegheny County Family Court at
                          No(s): FD - 12-006400-005


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 02, 2020

        Margaret Rice (Mother) appeals from the order dated September 24,

2018, and entered on October 31, 2018, dismissing Mother’s exceptions to

the support master’s report and recommendation, which dealt with James

Rice’s (Father) petition to modify an existing child support order for the benefit

of Mother’s and Father’s son, who is a special-needs twenty-year-old

individual (Child). We vacate and remand.

        Mother and Father were previously married and were divorced in August

of 2013. In May of 2015, the parties entered into a consent order, which

provided for Father’s support obligation plus additional expenses required by

Child that would be equally split between the parties. Father filed his petition

to modify the support obligation on August 17, 2017, requesting a lowering of
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*   Retired Senior Judge assigned to the Superior Court.
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the existing child support order. A complex support hearing was held on March

28, 2018, before a support master. In the order that assigned the support

master, dated February 16, 2018, “the parties were reminded … that ‘[p]retrial

[s]tatements [were] to be filed on or before 7 days prior to trial….’” Trial

Court Opinion (TCO), 7/19/19, at 1. In its opinion, the trial court explained

that Mother “failed to file a full and complete [p]retrial [s]tatement, [and] as

a result of which the [m]aster, in accordance with Local Rules 212.2 and

212.3(5), declined to allow [Mother] to introduce exhibits and third[-]party

testimony at the support hearing.”             Id. at 2-3.1   Essentially, Mother was

prohibited from testifying herself. Additionally, because Mother had brought

Child to the hearing without an aid to tend to Child, she was asked to sit in

the hallway with Child because his actions were interrupting the proceedings.

As a result, Mother was unable to participate at all in the hearing.

       The master issued her decision on May 8, 2018, determining the parties’

incomes based on exhibits submitted by Father and setting forth the amount

that Father was required to pay in support of Child. The master’s hearing

summary provides the following in its entirety:

       RECOMMENDATION: Effective 08/17/17 Deft [Father] to pay Pltf
       [Mother] $518/mo. suppt. for [Child]. There is an overpayment
       of [$]12,552.56 as of 05/07/18. Due to the payment schedule
       herein, the overpayment of $12,552.56 is set to zero as of
       05/07/18 and no more money will be sent to Plaintiff this month.
____________________________________________


1Mother’s pretrial statement includes a narrative statement, a list of witnesses
and a list of exhibits that Mother reserves the right to call and/or enter into
evidence, and a statement of reservations. However, the portion entitled
“Child Support Recommendation/Proposed Order” is entirely blank.

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      Deft’s actual support obligation remains at $518/mo. However,
      effective 06/01/18 the obligation is charging at $388.50/mo.
      through the refund period to recoup the overpayment of
      $12,552.56. On 07/01/26, the monthly suppt obligation will
      return to $518/mo, unless the [c]ourt determines that the
      overpayment has been recouped prior to 07/01/26, in which case
      the court will return the order to $518/mo. If the overpayment is
      not recouped by 07/01/26, the court will extend the period to fully
      recoup the overpayment. Any future arrears thereafter will be
      payable at $5.00/mo. until paid in full.        Pltf shall submit
      documentation to Deft on a monthly basis for reimbursement of
      his 36% share. Deft shall pay Pltf within 10 days. Any disputed
      charges shall be submitted to the [c]ourt annually for
      determination. Parties agreed to reduce the monthly support by
      25% to allow Deft to recoup his overpayment more quickly.

      EXPLANATION: Parties appeared with counsel for the 3/28/18
      hearing. H.O. found Deft/Father’s net income to be significantly
      less than it had been in 2016 when the last Order went into effect.
      [Child] is 20 yrs old but is unable to support himself for undisputed
      reasons. [Child] lives with Mother. The parties’ older son resides
      with Father when not at college. Father argued that he assists
      [older son] with college expenses. However, the H.O. advised
      Father that under current PA law, he has no obligation to do so
      and that his first obligation is to provide the necessary child
      support for [Child].

Master’s Hearing Summary, 5/8/18.

      Mother filed exceptions to the master’s report and recommendation and

on August 17, 2018, a hearing was held before the trial court. The resulting

court order, dismissing Mother’s exceptions and adopting the master’s report

and recommendation, was dated September 24, 2018. However, the order

was not entered on the trial court docket until October 31, 2018. Thereafter,

Mother filed her timely appeal to this Court.

      Unfortunately, the delays in this matter did not end at that point. The

record and the trial court’s opinion were due in this Court by December 31,


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2018. This Court sent two letters to the trial court, one dated January 31,

2019, and one dated May 3, 2019, indicating that pursuant to Pa.R.A.P.

1935(a), the record was overdue. In the second letter, the trial court was

informed that, “upon receipt of the record, a briefing schedule [would] be

established, and [that] the appeal process, which [was] currently languishing,

[could] go forward.” Letter, 5/3/19. The record was finally docketed in this

Court on August 1, 2019. Argument was held on February 18, 2020. The

case is now finally ready for disposition.

      In her appeal to this Court, Mother lists the following issues for our

review:

      1. Did the [t]rial [c]ourt abuse its discretion/err as a matter of law
      in affirming the [m]aster’s decision to preclude Mother’s testimony
      and evidence because of a minor error in her [p]retrial
      [s]tatement?

      2. Did the [t]rial [c]ourt abuse its discretion/err as a matter of law
      by not correcting the [m]aster’s discrimination of not allowing the
      parties’ handicap [C]hild in the room during the [h]earing due to
      his special needs, thereby forcing Mother [to] sit in the hallway
      with the [C]hild and depriving Mother of the opportunity to
      participate in the hearing?

      3. Did the [t]rial [c]ourt abuse its discretion/err as a matter of law
      by not correcting the [m]aster’s improper calculations of each
      party’s income?

      4. Did the [t]rial [c]ourt abuse its discretion/err as a matter of law
      by not correcting the [m]aster’s error in calculating child support
      amount and improper calculation of overpayment amount?

      5. Did the [t]rial [c]ourt abuse its discretion/err as a matter of law
      in affirming the [m]aster’s decision regarding additional expenses
      despite the fact that Father’s share was not properly defined and
      only annual reviews were provided, which thus require[s] Mother


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      to advance the costs associated with raising a child with special
      needs?

      6. Did the [t]rial [c]ourt abuse its discretion/err as a matter of law
      in affirming the [m]aster’s decision that the parties agreed to
      reduce the support by twenty-five percent (25%) despite the fact
      that no such agreement was reached?

Mother’s brief at 5-6.

      Our review is guided by the following:

      In reviewing an order entered in a support proceeding, an
      appellate court has a limited scope of review. The trial court
      possesses wide discretion as to the proper amount of child support
      and a reviewing court will not interfere with the determination of
      the court below unless there has been a clear abuse of discretion.
      The function of the appellate court is to determine whether there
      is sufficient evidence to sustain the order of the hearing judge. An
      abuse of discretion is not merely an error of judgment; rather, it
      occurs when the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable or the result of partiality,
      bias or ill-will.

Johnson v. Johnson, 153 A.3d 318, 321 (Pa. Super. 2016).

      We begin by noting that the trial court’s opinion addresses the exclusion

of evidence and testimony by Mother, concluding that it was proper for the

master to so order. To support this conclusion, the trial court’s opinion states:

             This [c]ourt was not persuaded by any of the evidence or
      testimony in the record or at the [e]xceptions [a]rgument that the
      [m]aster committed any material error or omission or any abuse
      of discretion. On [e]xceptions, [Mother] challenged the [m]aster’s
      calculations of [Father’s] income, [Mother’s] income, [Father’s]
      child support obligation and overpayments, [Father’s] share of
      medical expenses; [Mother] also challenges the [m]aster’s
      enforcement of a purported agreement to reduce [Father’s]
      support obligation, the [m]aster’s establishment of reviews on an
      annual basis, the [m]aster’s failure to award [Mother] an upward
      deviation, the [m]aster’s requirement that Mother supervise the
      disabled son she brought with her to the complex support hearing,
      and the [m]aster's refusal to let [Mother] present evidence and/or

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J-A05006-20


       testimony because of her failure to submit a complete pretrial
       statement. This [c]ourt, however, discerned nothing in the record
       before it that substantiated [] any of these assignments of error,
       omission or abuse of discretion. Since [Mother] was properly
       excluded from providing evidence and third-party testimony
       pursuant to Local Rules 212.2 and 212.3(5), the record provides
       [Mother] scant evidence upon which to argue that the [m]aster’s
       handling of the admissible evidence and testimony was materially
       flawed.        Presumably,     the   [m]aster’s     [r]eport    and
       [r]ecommendations would have been more fully informed had
       [Mother] submitted a complete pretrial statement and therefore
       been able to introduce elucidating exhibits and testimony; it was
       not reversible error, however, either for the [m]aster to have
       proceeded with the evidence before her, or for this [c]ourt to have
       affirmed    and    adopted     the    [m]aster’s    [r]eport    and
       [r]ecommendations.

TCO at 2-3.2

       Additionally, the trial court distinguishes the opinion in In re Estate of

Ghaner, 779 A.2d 585 (Pa. Super. 2001), a case relied on by Mother, that

discusses the judicial discretion allowed when formulating an appropriate

sanction for failure to comply with a court order. In Ghaner, this Court held

that precluding a party “from introducing any exhibits or testimony was an

[in]appropriate sanction given the facts of record before [the court].” Id. at

590. Here, the trial court explained that unlike the Ghaner case, Mother



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2 The pretrial order issued by the court prior to the master’s hearing indicated
the information that was required to be included in the pretrial statement.
See Pretrial Order, 1/18/18, at (2)(a)–(e). The order also stated that “[a]
party who fails to comply with any requirements of paragraph 2(a) through
2(e) of this order of court may not offer any testimony in support of claims for
the matters covered in the paragraphs with which he has not complied, and
any testimony offered in support of a claim for the matters covered in
paragraphs 2(a) through 2(e) may not be inconsistent with or go beyond the
fair scope of the information set forth in the pretrial statement.” Id. at (4).

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J-A05006-20


      had been put on notice by numerous motions court arguments
      and orders of court that full and complete responses were required
      to resolve the parties[’] complex support dispute. [Mother] had
      been repeatedly ordered to provide full and complete answers to
      interrogatories and pretrial discovery requests, and this [c]ourt
      believes that [Mother’s] subsequent failure to submit a complete
      pretrial statement provided sufficient evidence of obduracy on the
      part of [Mother] to justify the [m]aster’s decision to exclude
      [Mother’s] evidence and testimony.

TCO at 3-4.

      Although the record supports this statement by the trial court, relating

to Mother’s failures to respond to some court orders and to submit a complete

pretrial statement, we are troubled by the court’s decision due to a lack of a

discussion that includes its factual findings and credibility determinations.

Rather than including a discussion about anything other than the sanction

imposed upon Mother based on her failure to include information in one part

of her pretrial statement (argued by Mother in her first issue), the court

identified Mother’s list of exceptions and stated its conclusion that nothing in

the record would support any of Mother’s alleged errors. Notably, the trial

court’s statement regarding Mother’s challenge, relating to the “enforcement

of a purported agreement to reduce [Father’s] support obligation,” id. at 3, is

not supported by any evidence in the record that the parties agreed to reduce

support.   Mother’s allegation relating to this omission is contained in her

argument pertaining to her sixth issue. Moreover, it is evident that the trial

court’s decision does not include a discussion about any of the other issues

raised by Mother.




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      Therefore, we conclude that under the circumstances here, we must

vacate the trial court’s order and remand the matter for further proceedings,

with the first determination to be directed at whether Mother should have been

allowed to testify about the items that she did include in her pretrial

statement. Moreover, if one of the parties appeals from the court’s new order

deciding the matter, the court should provide a discussion of the facts and its

credibility determinations in an opinion accompanying its order.       For the

reasons stated supra, we vacate the order on appeal and remand for further

proceedings.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2020




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