J-S23013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SHERRY L. JENKINS,                               IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    ROBERT L. JENKINS,

                             Appellant                  No. 1215 WDA 2018


                 Appeal from the Order Entered August 16, 2018
                In the Court of Common Pleas of Bedford County
                 Civil Division at No(s): 106-S-2013/211113964


BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JUNE 12, 2019

        Robert L. Jenkins (Husband) appeals from the order entered August 16,

2018, that denied Husband’s objections to the reinstatement of spousal

support and arrearages due Sherry L. Jenkins (Wife), but terminated the

spousal support effective October 3, 2017, the date upon which the parties’

final divorce decree was entered.1 After review, we affirm.

        The trial court supplied the following history of this case in its Pa.R.A.P.

1925(a) opinion, stating:

        On July 11, 2013, a spousal support order was entered requiring
        [Husband] to pay [Wife] $500.00 per month spousal support. This
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Wife has not filed a brief in response to Husband’s appeal.
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     order was terminated at [Wife’s] request on September 18, 2014,
     but was reinstated by agreement on November 20, 2014.
     [Husband] was incarcerated on March 7, 2016[,] following [his]
     conviction for driving under the influence.        [Husband] was
     admitted to a State Intermediate Punishment program (SIP). The
     program was a twenty-four (24) month program, wherein
     [Husband] would spend at least seven (7) months in state prison,
     seven (7) months in a halfway house, and the remaining portion
     on supervision. In December, 2016[,] [Husband] was transferred
     to an inpatient rehabilitation facility for two months and then on
     February 21, 2017[,] to the Community Corrections Center from
     which he was released on May 3, 2018. Upon learning of his
     incarceration[,] the Bedford County Domestic Relations Office, on
     March 28, 2016, sent a notice to the parties advising them the
     Domestic Relations Office would suspend the [spousal support]
     order without prejudice and remit arrearages without prejudice no
     less than 60 days after the date of the notice unless a conference
     was requested. No conference was requested and on June 1,
     2016[,] the [o]rder was suspended without prejudice and all
     arrearages, if any, were remitted without prejudice.

     On May 29, 2018, after [Husband’s] release, the parties were sent
     the following notice:

          “The Bedford County Domestic Relations Section
          intends to reinstate your Support Order no less than
          30 days after the date of this notice. Unless a
          conference/hearing is requested by you, a decision
          will be made on June 26, 2018. The arrearages that
          were suspended without prejudice upon your
          incarceration as well as any arrearages that would
          have accrued during your incarceration will be
          reinstated 30 days from the date of this notice.”

     [Husband] objected to reinstatement and the above referenced
     hearing was scheduled.

     At the hearing, [Husband’s] counsel conceded that while at the
     halfway house [Husband] was available to work.

          THE COURT: What were the conditions at the halfway
          house? Did he have to stay in the house? Could he
          go out? Could he work?


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            MR. KELLEHER: He could.        He ultimately gained
            employment right around the time when the divorce
            decree was entered in August, September of - - well,
            the divorce decree was entered in October, but he was
            able to gain employment in August, September of
            2017. (Transcript hearing, August 16, 2018, page 9,
            lines 5-13.)

     As noted, the parties’ final decree in divorce was entered on
     October 3, 2017[,] ending [Wife’s] claim for spousal support. At
     the time of [Husband’s] incarceration in March of 2016, there were
     no arrears in the case. Finally, [Husband] requested an additional
     hearing for the [c]ourt to consider other factors such as the length
     of the marriage, and other issues. The [c]ourt declined the
     request for [an] additional hearing, but allowed [Husband] to
     supplement the record with documents and to testify if he chose
     to do so. At the conclusion of the hearing, the [c]ourt gave its[]
     reasons and reinstated the order including any arrearages that
     accrued during incarceration, but terminating the order effective
     October 3, 2017[,] ordering [Husband] to pay $250.00 per month
     on the $9,990.07 arrearage.

Trial Court Opinion (TCO), 9/24/18, at 1-4 (some citations to the record

omitted).

     On August 28, 2018, Husband filed this appeal and raised four issues in

his concise statement of matters complained of on appeal. However, in his

brief to this Court, Husband sets forth the following single issue, which

encompasses only the first two issues in his concise statement:

     Whether the trial court erred and/or abused its discretion in failing
     to properly apply Pennsylvania Rule of Civil Procedure 1910.19(f)
     to the instant case and by failing to apply Superior Court
     precedent, namely, Plunkard v. McConnell, 962 A.2d 1227 [(Pa.
     Super. 2008)], when it reinstated arrearages that accrued during
     [Husband’s] period of incarceration, inpatient rehabilitation, and
     time spent at a halfway house as [Husband] was unable to pay,
     had no known income and there was no reasonable prospect that
     he would be able to pay in the foreseeable future?


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Husband’s brief at 4.

      To address this issue, we are guided by the following:

      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. 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.

Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008) (quoting Menser v.

Ruch, 928 A.2d 294, 297 (Pa. Super. 2007)). We also note that although

many of the opinions cited or quoted by this Court below and those cases

relied upon by the trial court and Husband deal with the payment of child

support, the reasoning expressed in those decisions relates to spousal support

as well.

      Husband’s issue centers on Pa.R.C.P. 1910.19(f) and this Court’s

Plunkard decision, wherein he argues that “the trial court erred when it

reinstated arrearages that accrued during [Husband’s] period of incarceration,

inpatient rehabilitation, and time spent at a halfway house as [Husband] was

unable to pay, had no known income and there was no reasonable prospect

that he would be able to pay in the foreseeable future.” Husband’s brief at

11-12.

      We begin by noting that:




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     Once a support order is in effect, “[a] petition for modification …
     may be filed at any time and shall be granted if the requesting
     party demonstrates a substantial change in circumstances.” 23
     Pa.C.S. § 4352(a); see also Pa.R.C.P. No. 1910.19 (stating
     standard for modification). Accordingly, it is the petitioning
     parent’s burden to “specifically aver the material and substantial
     change in circumstances upon which the petition is based.”
     Pa.R.C.P. No. 1910.19(a); see also Colonna v. Colonna, 788
     A.2d 430, 438 (Pa. Super. 2001) (en banc) (stating that burden
     is on moving party), appeal granted, 569 Pa. 678, 800 A.2d 930
     (2002). A finding of either a “material and substantial change in
     circumstances” or no such change is reviewed on appeal for an
     abuse of discretion. Bowser v. Blom, 569 Pa. 609, 807 A.2d
     830, 834 (2002); [Larson v. Diveglia, 549 Pa. 118, 700 A.2d
     931, 932 (1997)]. “An abuse of discretion occurs where there is
     an error of judgment, a manifestly unreasonable decision, or a
     misapplication of law.” Larson, 700 A.2d at 932; see also
     Bowser, 807 A.2d at 834 (defining “abuse of discretion”
     standard).

Nash v. Herbster, 932 A.2d 183, 186 (Pa. Super. 2007) (quoting Yerkes v.

Yerkes, 824 A.2d 1169, 1171 (Pa. 2003)).

     We next set forth the language contained in Pa.R.C.P. 1910.19(f), which

became effective on May 19, 2006.

     Rule   1910.19.   Support.    Modification.  Termination.
     Guidelines as Substantial Change in Circumstances.

                                    ***

     (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




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           (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.

     The notice shall advise the obligee to contact the domestic
     relations section within 60 days of the date of the mailing of the
     notice if the obligee wishes to contest the proposed action. If the
     obligee objects, the domestic relations section shall schedule a
     conference to provide the obligee the opportunity to contest the
     proposed modification or termination. If the obligee does not
     respond to the notice or object to the proposed action, the court
     shall have the authority to modify or terminate the order and remit
     any arrears, without prejudice.

Rule 1910.19(f) (emphasis added).

     Additionally, we include the 2006 explanatory comment to Rule

1910.19(f), which provides:

     New subdivision (f) addresses an increasing multiplicity of
     circumstances in which the continued existence of a court-ordered
     obligation of support is inconsistent with the rules or law. An
     obligor with no known assets whose sole source of income is
     Supplemental Security Income or cash assistance cannot be
     ordered to pay support under Rule 1910.16-2. Likewise, an
     obligor    with    no   verifiable  income     or    assets    whose
     institutionalization,  incarceration,    or   long-term     disability
     precludes the payment of support renders the support order
     unenforceable and uncollectible, diminishing the perception of the
     court as a source of redress and relief. Often, the obligor is unable
     or unaware of the need to file for a modification or termination, or
     the parties abandon the action. In those circumstances, the
     courts are charged with managing dockets with no viable
     outcomes. Both the rules and the federal guidelines for child
     support under Title IV-D of the Social Security Act provide for
     circumstances under which a child support case may be closed.


     By way of further explanation, we turn to this Court’s discussion in Nash

about the Yerkes opinion, which states:




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            In Yerkes, our Supreme Court stated that it had “never
     directly addressed whether incarceration, standing alone, is a
     ‘material and substantial change in circumstances’ that provides
     sufficient grounds for modification or termination of a child
     support order.” [Yerkes, 824 A.2d at 1171]. Thus, the high court
     discussed the advantages and disadvantages of three distinct
     approaches other jurisdictions have taken “to assessing the effect
     of incarceration on support obligations.” Id. at 1172. After doing
     so, our Supreme Court stated: “In sum, we conclude that the ‘no
     justification’ rule best serves the interests of the child and is in
     harmony with fairness principles and the child support laws of
     Pennsylvania. Under the ‘no justification’ rule, it is clear that
     incarceration, standing alone, is not a ‘material and substantial
     change in circumstances’ providing sufficient grounds for
     modification or termination of a child support order.” Id. at 1177
     (footnotes omitted). In reaching this conclusion, the high court
     stated that, to the extent that this Court’s decision in Leasure v.
     Leasure, … 549 A.2d 225 (Pa. Super. 1988), in which we held
     that a child support obligation should be suspended where the
     obligor is incarcerated, conflicted with the “no justification”
     approached [sic] it has adopted, “we disapprove of it.” Yerkes,
     824 A.2d at 1177 n.2.

            In his concurring opinion, Justice Saylor opined that,
     although he saw merit to the majority’s approach, he would
     endorse this Court’s rationale in Leasure, supra, in which we
     afforded the trial court substantial discretion to assess the fact of
     incarceration as one factor in determining whether to grant a
     petition for modification or termination of child support. Justice
     Saylor found this approach to be the better approach, “particularly
     in the absence of a specific legislative directive otherwise.”
     Yerkes, 824 A.2d at 1177 (Saylor, J., concurring). Nevertheless,
     Justice Saylor found that, given the particular circumstances of
     the case, the trial court did not abuse its discretion when it denied
     the appellant’s petition for termination of his child support
     obligation. In a separate concurring opinion, Justice Eakin opined
     that, although he completely agreed with the majority’s statement
     that “incarceration, standing alone, is not a ‘material and
     substantial change in circumstances’ providing sufficient grounds
     for modification or termination of a child support order[,]” he
     nevertheless could not agree that incarceration is not a substantial
     change of circumstance. According to Justice Eakin, “[w]hile
     incarceration should be acknowledged to be a significant change
     in circumstance, it may not be grounds for modification or

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      termination of a child support order, as a matter of public policy.”
      Id. (footnote omitted).

Nash, 932 A.2d at 186-87.

      The Nash Court then went on to explain that the appellant’s

modification petition employed the language of Rule 1910.19(f)(2), just as

Husband’s petition in the instant case did, i.e., that “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.” Then, noting that no

case law existed that discussed the application of the new rule with the Yerkes

decision, the Nash opinion cited the Commonwealth Court’s decision in Fisher

v. Commonwealth, Dept. of Corrections, 926 A.2d 992, 996 (Pa. Cmwlth.

2007). In a dissenting opinion in Fisher, Judge Simpson “agreed with the

Department of Correction[s’] assertion that an inmate may ‘seek modification

of his … support orders while in prison, as now allowed by Pa.R.C.P. No.

1910.19(f).’” Nash, 932 A.2d at 188 (quoting Fisher, 926 A.2d at 996). The

Nash Court agreed and, therefore, vacated the order that denied the

appellant’s petition seeking modification of his support order and directed the

trial court “to follow the dictates of Rule 1910.19(f).” Id.

      The Plunkard case, relied upon by Husband, followed the dictates of

Nash, indicating that

      the law of this Commonwealth now affords an incarcerated parent
      the ability to petition to modify or terminate their support
      obligation where they are able to prove that the order is no longer
      able to be enforced under state law or that the incarcerated
      obligor parent is without the ability to pay their child support

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      obligation and there is no reasonable prospect that they will be
      able [to] do so for the foreseeable future.

Plunkard, 962 A.2d at 1230-31 (citing Nash, 932 A.2d at 188).           This is

exactly the process that the trial court followed here. After comparing the

length of incarceration, in Plunkard – a 6 to 10 year sentence, and in Yerkes

– a 10 year sentence, to the situation here – a one year sentence in prison

and inpatient treatment, plus one year in a halfway house at which time

Husband could work, the court concluded that these facts did not comport

with an inability to pay support in the foreseeable future.    The trial court

concluded that:

      The Pennsylvania case law and the Rule of Civil Procedure require
      the trial court to carefully weigh the claims of an incarcerated
      individual. In this case, [Husband] was not incarcerated when he
      resisted reinstatement; he had served approximately a year in
      prison, and inpatient treatment; and failed to make use of the
      opportunity given [to] him at the hearing to establish valid
      reasons why the order should not be reinstated at its previous
      level. Although it is difficult to see how he had less earning
      potential after approximately one year in prison[, t]he reinstated
      order does include arrearages for the period he served in the
      halfway house, because he was available to work. It also included
      arrearages for the one[-]year period of his incarceration, because
      the phrase, “not within the foreseeable future” would not include
      a period as short as one year.

TCO at 14-15.

      Based upon our review of the record, and the case law cited above, we

conclude that the trial court did not abuse its discretion in following the

dictates of Rule 1910.19(f) and in concluding that the reinstatement of spousal

support was proper under the facts of this case. We, therefore, affirm the


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court’s order denying Husband’s objection to the reinstatement of the spousal

support order and the reinstatement of all arrearages.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2019




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