J-S59014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.M. YASMINE EL MOURSI,                             IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

JIBREEL AL-AMIN,

                            Appellee                        No. 364 EDA 2016


                 Appeal from the Order Entered January 8, 2016
              In the Court of Common Pleas of Philadelphia County
                              Family Court at No(s):
                                 No. 15-08466
                             PACSES No. 789115353


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED OCTOBER 26, 2016

        K.M. Yasmine El Moursi (Mother) appeals from the January 8, 2016

order, entered after a hearing, that denied her complaint for child support,

which requested retroactive support from Jibreel Al-Amin (Father)1 for their

two adult children for a period during the children’s minority. After review,

we affirm.

        The trial court provided the following factual and procedural history of

this matter:

             Mother, a German citizen, filed a complaint for child
        support for two adult, emancipated “children” Hawwa Al-Amin
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Father has not filed a responsive brief in this case.
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     age twenty-three (23) and Ibrahim Al-Amin age twenty-four
     (24). Appellee Jibreel Al-Amin, (hereafter “Father”) and Mother
     were married in May of 1990. The couple had two children.
     Ibrahim Al-Amin born [in] April [] 1991 in Tacoma, Washington,
     and Hawwa Al-Amin born [in] March [] 1992 in Eberbach,
     Germany.

           Mother testified credibly that the parties lived together in
     Tacoma, Washington, and moved to Germany in June of 1991.
     On May 9, 1992, while in Germany, Father was arrested and
     removed from the home. Father was tried and convicted in
     December of 1992. Father was sentenced to three (3) years and
     nine (9) months in prison, served two (2) years, and was
     deported from Germany to the United States. Mother returned
     to the State of Washington and filed for a divorce in June of
     1992. She then returned to Germany. Mother came back to
     Washington in December of 1992, stayed for an unidentified
     amount of time and returned to Germany. Mother waited for,
     but did not receive a divorce from the State of Washington.
     Thereafter, Mother filed for a divorce in Germany, which was
     granted in the summer of 1995. Mother returned to the United
     States in February 1998 and resided there with the children until
     September 2000.       Mother and children moved to Munich,
     Germany after September 2000.

            Mother testified vaguely about her efforts to obtain child
     support. She first sought to obtain child support from Father
     through the German authorities in August of 1995. Mother
     stated, “I gave them the copy of the passport, of his Social
     security number, the address of his sister from Philadelphia, and
     everything.” Mother further testified that she did not know how
     long the German authorities tried to locate Father before
     notifying Mother that they could not find Father. Mother testified
     on cross examination that she moved approximately seven
     times, and that each time she moved to a new city in Germany
     she notified the authorities of Father’s information. Mother
     stated she received “social money” in Germany.               Mother
     described social money as welfare, but was unable to elaborate
     on the monetary amount received or the time periods for which
     she received the funds. In March of 2009, Mother contacted
     social services in the State of Washington in the United States.
     Mother testified that they were “unable to help her.” It was
     Father who contacted Mother through Facebook in 2011. Mother
     testified that she did not pursue child support at that time.

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              Father testified credibly that he returned to the United
        States in March of 1994. He lived in New York, where he resided
        in a shelter with the Salvation Army, and attended school.
        Shortly thereafter, in 1995, Father returned to Philadelphia. He
        has maintained residency in Philadelphia since 1995. Father
        contacted one of Mother’s friends shortly after his return to the
        United States, and he spoke with Mother by phone briefly.
        Thereafter, he never spoke to Mother again. Father's personal
        papers, left behind in Germany when he was deported to the
        United States, were returned via mail service to his sister’s
        address in Philadelphia. The box had Mother's name on the
        return address. Father became a real estate agent in 2001, and
        practiced the profession until 2013. Father located the two
        subject children of the support complaint on Facebook in 2010.

               Father paid child support in the State of Washington until
        2013, for a child (hereafter “eldest son”) from another
        relationship who was born prior to his marriage to Mother.
        Father's support was garnished from his wages. Father had
        contact with his eldest son, and said child came to live with
        Father off and on from the age of fourteen (14) to eighteen (18).
        Mother was aware of the existence of Father’s eldest son, his
        date of birth, and where the eldest son resided. Although
        Mother testified she contacted Washington State authorities
        concerning child support, it is incredible that Washington State
        would be unaware of the location of a Payor (Father) who
        remained in their system until at least 2013.

Trial Court Opinion (TCO), 3/24/16, at 1-4 (citations to the record omitted).

        Mother filed the child support petition underlying this case on June 19,

2015.    A hearing was held on January 8, 2016, resulting in the denial of

Mother’s support petition.    Mother then filed the instant appeal and raises

the following question for our review:

        Whether [Father] can be excused from paying support for minor
        children because [M]other filed her complaint for support after
        the children had reached majority and the trial court declined to
        extend the retroactive period as allowed by [Pa.R.C.P.]
        1910.17(a), when [F]ather’s whereabouts were unknown due to


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J-S59014-16


      his conviction and incarceration in Germany for sexually abusing
      the half-sister of children, his subsequent deportation from
      Germany without [M]other’s knowledge, and even though
      [M]other, a German resident, continued to search for [F]ather in
      order to pursue support despite the geographic, financial and
      language barriers she faced.

Mother’s brief at 4.

      When reviewing an issue relating to child support such as the one now

before this Court, we are guided by the following:

                  [T]his Court may only reverse the trial court's
            determination where the order cannot be sustained
            on any valid ground. We will not interfere with the
            broad discretion afforded the trial court absent an
            abuse of the discretion or insufficient evidence to
            sustain the support order. An abuse of discretion is
            not merely an error of judgment; if, in reaching a
            conclusion, 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, discretion has
            been abused.

      Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations
      omitted). Furthermore, this Court:

            must accept findings of the trial court that are
            supported by competent evidence of record, as our
            role does not include making independent factual
            determinations. In addition, with regard to issues of
            credibility and weight of the evidence, this Court
            must defer to the trial judge who presided over the
            proceedings and thus viewed the witnesses first
            hand.

      Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008).
      “When the trial court sits as fact finder, the weight to be
      assigned the testimony of the witnesses is within its exclusive
      province, as are credibility determinations, [and] the court is
      free to choose to believe all, part, or none of the evidence
      presented.” Stokes v. Gary Barbera Enterprises, Inc., 783


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J-S59014-16


     A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723,
     797 A.2d 915 (Pa. 2002). “[T]his Court is not free to usurp the
     trial court's duty as the finder of fact.” Isralsky v. Isralsky,
     824 A.2d 1178, 1190 (Pa. Super. 2003) (quoting Nemoto v.
     Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1219 (Pa. Super.
     1993)).

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009).

     Mother begins her argument by asserting that the trial court

misapplied Pa.R.C.P. 1910.17(a), which provides:

     (a) An order of support shall be effective from the date of the
     filing of the complaint or petition for modification unless the
     order specifies otherwise. In a child support case, if a change in
     custody occurs after the date of filing, but before a domestic
     relations conference is held, the trier of fact shall enter a
     charging order going forward in favor of the primary custodian
     that shall be effective from the date of the change in custody.
     The trier of fact also may enter a retroactive arrears order in
     favor of the party who was the primary custodian at the time of
     filing. Such an order may address the period from the date of
     filing to the date of the change in custody.          However, a
     modification of an existing support order may be retroactive to a
     date preceding the date of filing if the petitioner was precluded
     from filing a petition for modification by reason of a significant
     physical or mental disability, misrepresentation of another party
     or other compelling reason and if the petitioner, when no longer
     precluded, promptly filed a petition.

Id. (emphasis added).

     Although Mother recognizes that this rule directs that the effective

date of a support order is retroactive to the date that a complaint is filed,

she contends that this rule does not prohibit a pre-complaint effective date.

Rather, Mother asserts that because there were “real and serious reasons for

the delay in filing[,]” the court should not have “mechanically” applied this

rule without “exercising its judgment, where … it [was] not prohibited from


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J-S59014-16



doing so.” Mother’s brief at 10. In other words, Mother contends that the

court erred in its application of Rule 1910.17 and should not have ignored

the equities and the best interests of the children.

      In support of her position, Mother distinguishes her situation from that

in Pfeifer v. Cutshall, 851 A.2d 983 (Pa. Super. 2004), a case relied on by

the trial court. Mother’s view is that in Pfeifer the father was not notified or

given the opportunity to be heard before the original support order that he

had agreed to was modified to be retroactive to the date of the child’s birth.

Here, Mother claims that the delay in her filing of a complaint occurred

because Father could not be found and given notice and an opportunity to be

heard.   Therefore, applying equitable principles, Mother asserts that the

entry of an order for support should be allowed retroactive to a date prior to

the filing of her complaint.

      Mother also relies on A.S. v. I.S., 130 A.3d 763 (Pa. 2015), to support

her request that the court should weigh the equities between the parties.

The A.S. decision involved “a stepfather who haled [sic] a fit parent into

court, repeatedly litigating to achieve the same legal and physical custodial

rights as would naturally accrue to any biological parent.” Id. at 770. As a

result, our Supreme Court held that due to the stepfather’s actions, he was

held liable for child support.      The Court concluded that because the

stepfather had “taken sufficient affirmative steps legally to obtain parental

rights[,]” he “should share in parental obligations, such as paying child

support.”    Id. at 770-71.       “Equity prohibits [the] [s]tepfather from

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J-S59014-16



disavowing his parental status to avoid a support obligation to the children

he so vigorously sought to parent.” Id. at 771.

     Here, the trial court extensively discussed its reasons for its denial of

Mother’s complaint, stating:

     Pennsylvania Rules of Civil Procedure state that both a complaint
     and a petition for modification are effective as of the date of
     filing unless the order states otherwise.            Pa. R. Civ. P.
     1910.17(a). The rule goes on to state that a modification of an
     existing support order may be retroactive to a date preceding
     the date of filing if a compelling reason exists.          Id.    The
     legislature specifically included both a complaint and a petition
     for modification when stating the effective date of a support
     order as the date the complaint or petition was filed. Only a
     modification of an existing support order was permitted to be
     effective retroactive to a date preceding the date of filing. The
     legislative intent is clear in not allowing original complaints to be
     effective retroactive to a date preceding the filing of a complaint.

     A support order may not be made retroactive to a date
     preceding the filing of the complaint. Pfeifer v. Cutshall, 851
     A.2d 983, 985 (Pa. Super. 2004). In Pfeifer, a support order
     from Germany, arrears were calculated from a period of time
     when no child support order existed. Id. at 986. There the
     Court held that it would be against public policy to enforce: a
     foreign order that would not have been allowed under
     Pennsylvania law.      Id. at 986.     The German order was
     recalculated in accordance with Pennsylvania law, and the
     effective date of the support order in Pennsylvania was
     determined to be the date the support order was filed. Pfeifer
     refused to recognize the arbitrary date assigned by the foreign
     court. Id. at 987. See also, Bowser v. Blom, 766 A.2d 1259,
     1261 (Pa. Super. 2001). (Where first support complaint is
     dismissed, support order is retroactive to date second complaint
     was filed). Christianson v. Ely, 575 Pa. 647, 664[, 838 A.2d
     630] (2003). (Where first support complaint is neither
     discontinued nor terminated the support order is retroactive to
     date first complaint was filed).




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J-S59014-16


     Here, the complaint for support was filed on June 19, 2015. At
     the time the complaint was filed, the emancipated “children”
     were twenty-three (23) and twenty-four (24) years of age. The
     support order, if issued, could only have been effective from the
     date the complaint was filed. The trial court lacks the authority
     to order retroactive child support for emancipated children.
     Even if the trial court wished to recognize an earlier date, there
     would have been no compelling or permissible reason to do so.

                             . . .

     The trial court found no significant physical or mental disability
     that would have prevented Mother from filing a complaint for
     support. Mother testified credibly that when the children were
     minors she was able to work and did work sporadically; she was
     able to obtain a divorce and change her child's name through the
     German courts; she was able to travel back and forth between
     Germany and the United States, and she was able to obtain
     government financial resources to her benefit.

     The trial court did not find that Father made a misrepresentation
     to Mother or otherwise hid his whereabouts. Father testified
     credibly that he contacted Mother, through a friend, and spoke
     to Mother briefly when he returned to the United States in 1994.
     Father worked as a real estate agent from 2001 until 2013, and
     his contact information was listed on the Internet.        Father
     received a package from Mother sent via mail to his sister’s
     Philadelphia address. Father paid child support for another child
     in the State of Washington, the support was garnished from
     Father’s pay, and his contact information was known to the State
     of Washington. Mother testified credibly that she was aware of
     the sister’s contact information and had personally spoken with
     one of Father’s sisters, she was aware that Father had family in
     Philadelphia, and she was aware of Father’s other son and his
     date of birth. Mother had a copy of Father's passport and Social
     Security number.




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J-S59014-16


       Despite the Commonwealth’s assertions,[2] this case has no
       compelling reason that would set it apart from other support
       complaints. The court has procedures in place to work with
       foreign orders. Individuals have access to language interpreters.
       Father’s crime, although never specified on the record, was
       allegedly heinous, but there was no testimony whatsoever that
       Father’s conviction created a significant mental or physical
       disability in Mother. In Philadelphia, Pennsylvania, the Office of
       Child Support Enforcement represented Mother and Father
       appeared pro se. There was no testimony concerning Mother’s
       prior representation, if any, or Mother’s efforts to obtain counsel
       to pursue child support. Mother did not show that she suffered
       any prejudice from her previous lack of representation. Mother
       also failed to show that she suffered any language impediment.
       She proceeded in English and never requested an interpreter
       despite the [c]ourt’s ability to furnish her with one.

       Mother failed to promptly file a complaint when she became
       aware of Father's whereabouts.          Father contacted Mother
       through Facebook in 2011.          Mother denied Father’s friend
       request and blocked Father’s access. Mother took no active
       steps to seek child support until four years later in 2015.

       The trial court is required to rely on the evidence presented at
       trial.   Both parties testified on direct examination, cross
       examination, and answered questions asked by the court. No
       other evidence, documents, or exhibits were presented to the
       trial court. Based on the notes of testimony and credibility
       determinations the trial court found no compelling circumstances
       from which to fashion an equitable remedy contrary to current
       child support statutes, regulations, and case law.

TCO at 6-9 (citations to the record omitted).

       We agree with the trial court’s interpretation of Rule 1910.17,

indicating that a support order is only retroactive to the date the support

____________________________________________


2
  The trial court references the Commonwealth in this context because
Mother was represented by the Philadelphia Office of Child Support
Enforcement as noted infra in its opinion.



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J-S59014-16



complaint was filed, as opposed to a situation where a petition for

modification of a prior support order was filed. The cases cited by Mother

and the court reference retroactivity; however, those cases and others

located by this Court note that retroactivity to the date the complaint was

filed is preferable and that if the court denies retroactivity to the date of the

complaint then the court should state on the record its reasons for not so

ordering retroactivity. See Sutliff v. Sutliff, 489 A.2d 764, 781 (Pa. Super.

1985); Crawford v. Crawford, 633 A.2d 155, 162 (Pa. Super. 1993).

However, none of the cases provide for retroactivity to a time before the

support complaint was filed. Therefore, we conclude that the trial court not

only correctly interpreted Rule 1910.17, but also applied it properly.

      In addition, we point out that 23 Pa.C.S. § 4352, which is entitled

“Continuing jurisdiction over support orders[,]” also supports the trial court’s

and this Court’s interpretation of the statutory basis for deciding the issue

before us.    Section 4352 deals solely with petitions for modification of

support and, specifically, subsection (e) entitled “Retroactive modification of

arrears” states:

      (e) Retroactive modification of arrears.—No court shall
      modify or remit any support obligation, on or after the date it is
      due, except with respect to any period during which there is
      pending a petition for modification. If a petition for modification
      was filed, modification may be applied to the period beginning on
      the date that notice of such petition was given, either directly or
      through the appropriate agent, to the obligee or, where the
      obligee was the petitioner, to the obligor. However, modification
      may be applied to an earlier period if the petitioner was
      precluded from filing a petition for modification by reason of a


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J-S59014-16


         significant physical or mental disability, misrepresentation of
         another party or other compelling reason and if the petitioner,
         when no longer precluded, promptly filed a petition. In the case
         of an emancipated child, arrears shall not accrue from and after
         the date of the emancipation of the child for whose support the
         payment is made.

23 Pa.C.S. § 4352(e).               Thus, again it is evident that orders directing

payment of support pursuant to modification petitions are retroactive to the

date notice was given as to the filing of the petition, unless the reasons

precluding filing are proven.            However, since the matter now on appeal

arises    from   an      initial   complaint   for   support,   any   rules    referencing

modification petitions are not relevant.

         Lastly, we conclude that the trial court’s reasons for denying Mother’s

petition for retroactive child support, based on its factual determinations

relating to the evidence presented, are not an abuse of discretion. The trial

court’s     recitation     of      the   testimony   presented    and    its    credibility

determinations, quoted above, support its conclusion that Mother is not

entitled to an equitable remedy that can overcome what has long been the

procedure followed in support matters.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2016


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