J-A25010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

PAMELA W. McKINNEY,                      : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
KEARY H. WILLIS,                         :
                                         :
                   Appellant             : No. 3287 EDA 2014

              Appeal from the Order entered October 28, 2014,
                 Court of Common Pleas, Montgomery County,
          Domestic Relations at No. 2008-22116 – PACSES: 759110222

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 20, 2015

      Keary H. Willis (“Father”) appeals pro se from the order of court

denying his petitions for modification of his child support obligation.   We

affirm.

      Father and Pamela W. McKinney (“Mother”) are the parents of one

child who was born in 2006. The parties separated in July 2007. In August

2008, Mother filed a complaint for child support.    Following a conference

before the support conference officer, Father was required to pay $1,316.08

per month from January 2009 forward. Trial Court Order, 12/29/08, at 1-2.

      In August 2009, Father filed a petition seeking to reduce his child

support obligation.   This resulted in a decrease in Father’s obligation to

$1,127.59 per month.     Trial Court Order, 11/10/09.   In September 2012,

Father again sought to reduce the amount of child support and it was further




*Former Justice specially assigned to the Superior Court.
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reduced to $923.58 per month.       Trial Court Order, 12/12/12.     In March

2013, Father filed his third petition for modification, which the trial court

dismissed   upon   finding   no   change   in   circumstances   warranting   a

modification. Trial Court Order, 5/13/13. In August 2013, Father filed his

fourth petition to modify, which the trial court dismissed because Father

failed to appear for the support conference. Trial Court Order, 9/19/13.

     Father filed yet another modification petition on April 22, 2014.       In

response, Mother filed a petition seeking to increase Father’s support

obligation on June 20, 2014.      After a conference addressing these two

petitions, Father’s support obligation was reduced to $596.45 per month.

Trial Court Order, 7/9/14.    While Mother’s exceptions to this order were

pending, Father filed another petition to modify.        The trial court set a

hearing for October 27, 2014 to address Mother’s exceptions and Father’s

intervening modification petition. The order setting this hearing date stated

“see accompanying Order relating to: discovery (and read carefully).” Trial

Court Order, 8/27/14 (emphasis in the original). The discovery order, which

was issued on the same date, instructed the parties to

            bring to the hearing, and supply to the other side
            [ten] days in advance of the hearing … 2013 tax
            return including all supporting documents. … Year-
            to-date pay stub and/or any other statements
            showing total year-to-date income, for all jobs
            and/or all sources, for 2014. If self-employed, profit
            and loss statement through [September 30, 2014].




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           THESE DOCUMENTS MUST BE PRODUCED AT
           HEARING WHETHER OR NOT THEY WERE
           SUBMITTED AT ANY PRIOR PROCEEDING.
                              ***
           FAILURE TO COMPLY WITH ANY PART OF THIS
           ORDER    MAY   RESULT  IN   AN   ADVERSE
           INFERENCE BEING DRAWN AGAINST THE
           PARTY    FAILING   TO  COMPLY,    AND/OR
           DISMISSAL OF THE PETITION/EXCEPTIONS, IF
           FILED BY THE PARTY WHO FAILS TO COMPLY.

Trial Court Discovery Order, 8/27/14 (emphasis in the original).

     At the outset of the October 27, 2014 hearing, the trial court

requested the parties hand up the items they were instructed to bring.

Mother complied, but Father indicated that he did not bring his documents.

The trial court then said, “Okay. Then you will not be permitted to produce

any evidence, and the case will be decided only on that which is presented

by [Mother].” N.T., 10/27/15, at 3. Shortly thereafter, the trial court asked

Father directly whether he received the scheduling and discovery orders, and

Father admitted that he had. Id. at 4-5.

     At the conclusion of the October 27, 2014 hearing, the trial court

dismissed all three petitions and reinstated the December 2012 support

order setting Father’s obligation at $923.58 per month and added an

additional $500 to address Father’s substantial arrears. Trial Court Order,

10/28/14.1 Father then filed this timely appeal.



1
  This amount was later reduced to $648.47 plus $500 on arrears. This
reduction was made to reflect the end of Father’s obligation to contribute to
the child’s tuition expense. Trial Court Opinion, 1/28/15, at 3.


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J-A25010-15


      Father presents the following issue for our review: “Whether the

[trial] court may ignore evidence submitted by [Father] who is [p]ro [s]e

and foreclose on a substantive issue of earning capacity, creating an effect

of [c]ontempt and thereby jeopardize civil liberties[?]” Father’s Brief at 1.2

Specifically, Father complains that the trial court erroneously refused to

accept the evidence he brought to the hearing (a physician’s form regarding

a temporary physical disability) because he failed to comply with its

discovery order. See Father’s Brief at 7.3

            Generally, imposition of sanctions for a party's
            failure to comply with discovery is subject to the
            discretion of the trial court, as is the severity of the
            sanctions imposed. The trial court's discretion,
            however, is not unfettered. When a discovery
            sanction is imposed, the sanction must be
            appropriate when compared to the violation of the
            discovery rules.

Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d

916, 926 (Pa. Super. 2011) (internal citations omitted).


2
  Father did not include page numbers of his appellate brief.          We have
numbered the pages for ease of reference.
3
  Father’s argument does not include citation to a single authority in support
of his position. This is in direct contravention of our Rules of Appellate
Procedure. See Pa.R.A.P. 2119. We recognize that Father is representing
himself. “Although this Court is willing to liberally construe materials filed by
a pro se litigant, pro se status confers no special benefit upon the appellant.
Wilkins v. Marsico, 903 A.2d 1281, 1284-85 (Pa. Super. 2006). As such,
Father was bound to follow the briefing requirements promulgated in the
Rules of Appellate Procedure. Although we are empowered to find an issue
waived for failure to properly develop it with discussion of relevant authority,
id., we will not do so in this instance. We urge Father to conform to the
Rules if he files a brief in this Court in the future.


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J-A25010-15


      “Mindful … that each factor represents a necessary consideration and

not a necessary prerequisite, this Court has outlined the following factors”

for trial courts to contemplate when imposing a sanction for violating a

discovery order: “(1) the nature and severity of the discovery violation; (2)

the defaulting party's willfulness or bad faith; (3) prejudice to the opposing

party; (4) the ability to cure the prejudice; and (5) the importance of the

precluded evidence in light of the failure to comply.” Id.

      In consideration of these factors, we can find no abuse of discretion in

the trial court’s sanction against Father for failing to adhere to its discovery

order. Father’s discovery violation was severe. The trial court’s discovery

order specifically delineated the documents Father was required to bring.

Father admitted that he had filed his 2013 taxes and that he was employed

in the past year. N.T., 10/27/14, at 5. However, not only did Father not

bring the documents the trial court ordered him to bring, but the only

document he brought provided no information about his income.             Thus,

Father’s failure to provide the requested information complicated the

resolution of the matters before the trial court. Father’s discovery violation

was also highly prejudicial to Mother. Mother was seeking to establish that

Father’s income had increased. N.T., 8/27/14, at 6-8, 13. Father was the

only one in possession of information regarding his income, and not adhering

to the trial court’s order hampered her ability to establish such an increase.




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J-A25010-15


      Further, there is evidence that would support a conclusion that

Father’s discovery violation was willful.   When answering the trial court’s

questions about the income he receives as a self-employed private

detective, Father stated a precise amount that he was owed in outstanding

invoices ($758). Father explained that he knew this exact figure because he

had just “put everything on an account program, QuickBooks, last night[,]”

though he immediately admitted that he did not bring any such information

with him. Id. at 18. At the time of this hearing, Father had been subject to

a child support obligation for six years and had filed multiple petitions to

reduce his obligation. As such, Father was well aware of what information

the trial court required to dispose of the parties’ competing modification

petitions.   Father’s extensive experience with child support proceedings

nullifies any inkling that he was unaware how vital the documents at issue

were to the resolution of the cross-petitions to modify.

      Finally, we note that the evidence Father was precluded from offering,

a physician’s form, was of minimal importance compared to the documents

outlined in the trial court’s discovery order. The information required by the

trial court would have established Father’s income for 2013 and his income

at the time of the hearing.     The information Father sought to introduce

would have substantiated Father’s claim that a temporary disability caused

his income to be reduced, but it would not provide substantive information




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J-A25010-15


as to Father’s income or income history, which was the crucial inquiry of the

proceeding.

      In light of the relevant considerations, we find no abuse of discretion

in the trial court’s sanction. Accordingly, we affirm the trial court’s order.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




4
  In his “summary of the argument,” Father complains that the trial court
erred by reinstating the December 2012 support order rather than the
January 7, 2014 order. Father’s Brief at 5. Not only did Father not include a
discussion of this issue in the argument portion of his brief (which is a
sufficient basis to find this issue waived, see Bolick v. Commonwealth, 69
A.3d 1267, 1269 (Pa. Super. 2013)), Father did not include this issue in his
statement of questions involved, and so it has been waived. Southcentral
Employment Corp. v. Birmingham Fire Ins. Co. of Pennsylvania, 926
A.2d 977, 983 n.5 (Pa. Super. 2007) (holding that issue not explicitly raised
in statement of questions presented is waived) Pa.R.A.P. 2116(a) (“No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”).


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