J-S03028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.D.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

D.G.M.

                            Appellee                 No. 1150 WDA 2016


                  Appeal from the Order Dated July 6, 2016
                In the Court of Common Pleas of Erie County
       Domestic Relations at No(s): NS200900847 / PASCES 543100845

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                                  FILED MAY 24, 2017

        Appellant, J.D. (“Mother”), appeals from the order dated July 6, 2016,

awarding support of her child, L.F.D. (“the Child”), born in 1999. 1 We affirm

in part, vacate in part, and remand.

        In 1999, the day after the Child’s birth, a support complaint was filed

in Montgomery County by Mother against D.G.M. (“Father”). On March 23,

2007, the Montgomery County court ordered Father to pay $421.00 per

month in child support.

        On April 30, 2009, the action was transferred to Erie County. At the

time of the transfer, Father was $10,432.02 in arrears. On May 28, 2009,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Child was seventeen years old at the time the support order was
entered and the appeal was filed.
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the domestic relations court of Erie County ordered Father to pay $79.00 per

month towards this arrearage.

        In 2014, Father filed a petition to modify child support. By that time,

Father had become “permanently disabled and [could not] work.” Domestic

Relations Ct. Op., 9/9/16, at 2.2 Father’s “net worker’s compensation lump

sum of $90,647.82 was intended to take the place of his entire future

earnings, as he is unable to work due to his disability.”        Id. (footnote

omitted).

        Following a hearing on June 28, 2016, the domestic relations court

found that Mother’s monthly net income is $2,384.19, that Father’s monthly

net income is $1,740, and that Father owes $7,659.70 in arrears. The court

calculated Father’s income by amortizing the benefits Father receives from

workers’ compensation and Social Security benefits over 328 months. Based

on this calculation, the domestic relations court ordered Father to pay $260

per month for current support and $40 per month for arrearage, totaling

$300 per month.

        On August 9, 2016, Mother filed a notice of appeal of this order. She

now raises three issues on appeal:

        I.    Did the learned trial judge err in amortizing [Father’s]
        worker’s compensation compromise and release and social
        security benefits of $90,647.82 over 328 months rather than
        over the . . . Child’s remaining minority?
____________________________________________


2
    Father did not file a brief with this Court.



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      II.   Did the learned trial judge err in fashioning a child support
      order of only $260.00 per month until the child reaches her
      majority or graduation of high school whichever is later as [the
      judge] failed to properly calculate the [Father]’s income for the
      Child’s remaining minority?

      III. Did the learned trial judge err in failing to order a lump
      sum payment of arrears?

Mother’s Brief at 3.

      Our standard of review is clear:

      In reviewing a child support order, our standard of review
      is narrow: we will not interfere with the trial court’s order
      absent a clear abuse of discretion, shown by clear and
      convincing evidence. “An abuse of discretion is more than
      an error of judgment. It must be a misapplication of the
      law or an unreasonable exercise of judgment.”

Darby v. Darby, 686 A.2d 1346, 1348 (Pa. Super. 1996) (quoting

Frankenfield v. Feeser, 672 A.2d 1347, 1349 (Pa. Super. 1996) (citations

omitted)), appeal denied, 698 A.2d 594 (Pa. 1997).

      In its opinion dated September 9, 2016, in response to Mother’s first

two issues, the domestic relations court stated:

      Upon review of the record, the [c]ourt concedes the amortization
      of the lump sum of $90,647.82 over 32[8] months to be in error.
      The [c]ourt intended for the $90,647.82 to be amortized over
      [Father]’s estimated working life, 181 months. . . . Thus,
      [Father]’s monthly support obligation should be calculated as
      $302.17 plus $40 for arrears, for a total of $342.17 per month.

Domestic Relations Ct. Op., 9/9/16, at 1-2 (footnote omitted) (citing N.T.,

7/6/16, at 7-8). We agree, vacate the support order in part, and remand in

order for the domestic relations court to correct its acknowledged error.


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     Mother’s final issue is that the domestic relations court “erred in failing

to order a lump sum payment of arrears.” Mother’ Brief at 13. Mother relies

on 23 Pa.C.S. § 4308.1(a), (f):

     (a) General rule.—Overdue support shall be a lien by operation
     of law against the net proceeds of any monetary award, as
     defined in subsection (i), owed to an obligor, and distribution of
     any such award shall be stayed in an amount equal to the child
     support lien provided for under this section pending payment of
     the lien. Except as provided in subsection (c) or (f), nothing in
     this section shall provide a basis for a paying agent or an insurer
     to delay payment of a settlement, verdict or judgment.

                                  *    *    *

     (f) Workers’ compensation awards.—With respect to any
     monetary award arising under the act of June 2, 1915 (P.L. 736,
     No. 338), known as the Workers’ Compensation Act, or the act
     of June 21, 1939 (P.L. 566, No. 284), known as The
     Pennsylvania Occupational Disease Act, no order providing for a
     payment shall be entered by the workers’ compensation judge
     unless the prevailing party or beneficiary, who is a claimant
     under either or both of the acts, shall provide the judge with a
     statement made subject to 18 Pa.C.S. § 4904 that includes the
     full name, mailing address, date of birth and Social Security
     number for the prevailing party or beneficiary who is a claimant
     under either or both acts. The prevailing party or beneficiary,
     who is a claimant under either or both of the acts shall also
     provide the judge with either written documentation of arrears
     from the Pennsylvania child support enforcement system website
     or, if no arrears exist, written documentation from the website
     indicating no arrears. The judge shall order payment of the lien
     for overdue support to the department’s State disbursement unit
     from the net proceeds due the prevailing party or beneficiary
     who is a claimant under either or both acts.

23 Pa.C.S. § 4308.1(a), (f). Mother opines that there is no basis to allow

Father to “drag out” payment of arrears when he has sufficient funds to pay




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a lump sum.     Mother’s Brief at 14.   In her view, any payment of arrears

should favor the Child, and a lump sum payment was required. Id.

      The domestic relations court stated that 23 Pa.C.S. § 4308.1 “does not

require the payment of arrears to be made in a lump sum.”              Domestic

Relations Ct. Op., 9/9/16, at 3. We find nothing in the language of Section

4308.1 requiring a lump sum payment of child support arrears and have

found no case law obligating an award of a lump sum payment instead of

installment payments.        See generally 1 Pa.C.S. § 1921(b) (“When the

words of a statute are clear and free from all ambiguity, the letter of it is not

to be disregarded under the pretext of pursuing its spirit”). Mother likewise

has not cited to any case law in support of her argument.             Thus, we

conclude that the domestic relations court did not abuse its discretion in

ordering Father’s arrearage to be paid in installments. See Darby, 686 A.2d

at 1348.

      The portion of the support order amortizing payment over 328

months, instead of the intended 181 months, is vacated.          Otherwise, the

order is affirmed.

      Order affirmed in part and vacated in part.             Case remanded.

Jurisdiction relinquished.

      Judge Olson joins the memorandum.

      Judge Strassburger files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




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