J-S18003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.E.U.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

G.W.U., JR.,

                          Appellant                 No. 1536 MDA 2015


                Appeal from the Order Entered August 18, 2015
               In the Court of Common Pleas of Lancaster County
                    Domestic Relations at No(s): 2010-01855


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 18, 2016

       G.W.U. Jr. appeals from the August 18, 2015 order denying his

petition to modify a support order. We affirm.

       On June 28, 2010, S.E.U., who has not filed a brief in this appeal,

instituted this action by filing a complaint seeking child support against

Appellant for the parties’ three minor children, who were then fourteen,

twelve, and nine years old.     She amended the complaint to seek spousal

support.     On August 4, 2010, an interim support order was entered

retroactive to June 28, 2010; arrearages were $3,854.14.          Appellant’s

monthly income was computed as $4,557.38, Appellee had no income

imputed to her, and Appellant was ordered to pay $1,822.95 in monthly

spousal and child support.

*
    Retired Senior Judge assigned to the Superior Court.
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      The August 4, 2010 interim support order reflected “a downward

deviation of $455.75/month” from the applicable support guidelines “in the

consideration of [Appellant’s] fixed monthly obligations.”      Interim Order,

8/4/10, at 3. Specifically, Appellant was paying the mortgage, a car loan,

and a loan secured during the marriage.        Appellant was also ordered to

provide health insurance coverage, which was paid by his employer, for his

wife and children.    At the time this order was entered, Appellee was

unemployed, having been terminated from her last job. She was attending

Consolidated School of Business, with an anticipated graduation date in

2011, and seeking employment.       No appeal was filed from the August 4,

2010 order.

      The record reflects that Appellant failed to comply with the support

order.   As of March 7, 2012, he was $35,681.55 in arrears and his last

payment, $905.80, had been made on October 20, 2010. As a result, his

driver’s license was suspended. On March 25, 2013, for reasons that do not

appear of record, the court restored Appellant’s driving privileges.

      On July 11, 2013, the Domestic Relations Section of the Court of

Common Pleas of Lancaster County sent a notice of proposed modification to

the child and spousal support based upon the following.         Appellant was

incarcerated in a state correctional institution on charges of corruption of a

minor, incest, and indecent assault. One of his children was the victim of

those offenses.   His earliest date of release was August 28, 2044.         In

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addition, the parties had divorced, and the oldest child was emancipated. At

that time, Appellant had $64,759.40 in arrearages. The Domestic Relations

Section proposed to modify the support order “to a non-financial obligation

[for further support] as Defendant is incarcerated with no known income or

assets on which to base a financial obligation.” Notice of Proposed

Modification, 7/11/13, at 3. However, the Domestic Relations Section asked

that Appellant be required to pay $20.00 per month on arrears and $5.00

per month in fees. Id.   On August 16, 2013, the court entered an order,

effective July 10, 2013, requiring Appellant to pay the requested amount on

arrearages and fees.

     Appellant contested that order, claiming that he had no arrears when

he was incarcerated on September 17, 2010, and asking that he not be

ordered to pay the $25 a month.     On October 28, 2013, the court denied

that request and modified the arrearages payment upward to $100 per

month. No appeal was filed from the October 28, 2013 order.

     On June 4, 2015, Appellant filed a petition to terminate the $100 per

month that he had been ordered to pay on arrearages. Appellant claimed to

have no income since his incarceration and that arrearages should not have

been imposed for any time after September 17, 2010, when he was first

imprisoned. He also averred that his prison wages were being attached to

satisfy the monthly obligation imposed on October 28, 2013. That petition

was denied on July 7, 2015.

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      On July 15, 2015, Appellant filed a “Motion for the Court to Terminate

Child Support order or Schedule a Timely Hearing Thereon.” That request

was treated as an appeal, and, on July 16, 2015, the court scheduled a

hearing for August 18, 2015. It thereafter reaffirmed its July 7, 2015 order

denying Appellant’s June 4, 2015 petition to terminate the $100 monthly

obligation on support arrearages.      This appeal followed.     The question

presented on appeal is: “Did the lower court commit an abuse of discretion

or an error of law in refusing to modify defendant’s support order?”

Appellant’s brief at 6.

      Our standard of review in this context is 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.”        Summers v.

Summers, 35 A.3d 786, 788 (Pa.Super. 2012). The trial court has broad

discretion in this area, and we do not override that discretion “absent an

abuse of the discretion or insufficient evidence to sustain the support order.”

Id. Discretion is abused only when “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[.]” Id.

      In accordance with Pa.R.C.P. 1910.19, child support may be modified

only upon a change of circumstances.        Id.   Specifically, Rule 1910.19,




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Support. Modification. Termination. Guidelines as Substantial Change in

Circumstances. Overpayments, states in pertinent part:

            (a) A petition for modification or termination of an existing
      support order shall specifically aver the material and
      substantial change in circumstances upon which the
      petition is based. A new guideline amount resulting from new
      or revised support guidelines may constitute a material and
      substantial change in circumstances. The existence of additional
      income, income sources or assets identified through automated
      methods or otherwise may also constitute a material and
      substantial change in circumstances.

Pa.R.C.P. 1910.19(a) (emphasis added). As we noted in Summers, supra

at 789, “The burden of demonstrating a ‘material and substantial change’

rests with the moving party, and the determination of whether such change

has occurred in the circumstances of the moving party rests within the trial

court's discretion.” Id.

      In this case, Appellant asserts that his incarceration constitutes a

change in circumstances. While the incarceration of a child-support obligor

can be considered a change in circumstances, Plunkard v. McConnell, 962

A.2d 1227 (Pa.Super. 2008), Appellant fails to appreciate that he was

incarcerated when the child support order that he seeks to modify was

entered. Appellant was incarcerated in September 2010, and never sought

modification of his support. Instead, in July 2013, the Domestic Relations

Section, of its own accord, proceeded pursuant to Pa.R.C.P. 1910.19(f), so

as to eliminate Appellant’s ongoing monthly obligation. That rule states:




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      (f) Upon notice to the obligee, with a copy to the obligor,
      explaining the basis for the proposed modification or
      termination, the court may modify or terminate a charging order
      for support and remit any arrears, all without prejudice, when it
      appears to the court that:

      (1) the order is no longer able to be enforced under state law; or

      (2) the obligor is unable to pay, has no known income or assets
      and there is no reasonable prospect that the obligor will be able
      to pay in the foreseeable future.

Pa.R.C.P. 1910-19(f). In Plunkard, we concluded that this subsection,

which was added in 2006, was designed to aid incarcerated defendants who

do not have the ability to pay child support.

      Herein, in 2013, when Appellant already was incarcerated, his ongoing

monthly support obligation was extinguished.       On October 28, 2013, a

support order was entered mandating that Appellant pay $100 per month on

the outstanding arrearages. Appellant did not file an appeal from the order.

In 2013, Pa.R.C.P. 1910.19(f) was in effect, and Appellant could have

appealed at that time and asked this Court to overrule the trial court’s

decision and erase any arrearages accruing during his incarceration.       He

failed to do so. Thus, Appellant’s continuing incarceration did not constitute

a change in circumstances as of June 4, 2015, when the present petition for

modification of the October 28, 2013 order was filed. The trial court did not

abuse its discretion in so concluding. See Trial Court Opinion, 10/28/15, at

5 (“The Court therefore dismisses the Appellant’s [June 4, 2015] petition for

failure of changing circumstances”).

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      On appeal, Appellant invokes Plunkard.      Therein, the child support

obligor was in jail and asked for a retroactive modification of his support

arrears for the period that he had been imprisoned.         His request was

premised upon a change in the law.        Specifically, when the obligor was

placed in jail in 2003, a parent’s incarceration was not considered a material

and substantial change in circumstances that justified modification or

termination of a support obligation.   In 2006, the law was altered by the

enactment of Pa.R.C.P. 1910.19(f). The trial court permitted the obligor to

invoke that rule and erased his arrears based upon that change in the law.

We affirmed on appeal.

      Herein, Appellant’s attempt to apply Plunkard fails.           He was

incarcerated in 2010, after the 2006 enactment of Pa.R.C.P. 1910.19(f). On

October 28, 2013, the court entered an order requiring him to pay $100 on

arrearages that had accrued while Appellant was in jail.      Appellant could

have appealed the order refusing to release him from his arrearages

obligation at that time.   When Appellant filed the present petition June 5,

2015, the law was no different than it was in 2013, and Appellant’s

circumstances, imprisonment, were the same. Hence, there was no material

and substantial change in circumstances permitting modification of the

October 28, 2013 order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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