J-S30013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.S.C., NOW A.S.L.,                            IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    N.B.C.,

                             Appellee                 No. 1427 WDA 2017


                Appeal from the Order Entered August 31, 2017
                In the Court of Common Pleas of Indiana County
                     Civil Division at No(s): 10486 CD 2012


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JULY 16, 2018

        A.S.C., now A.S.L., (Mother) appeals from the August 31, 2017 order

that granted the Petition for Special Relief/Modification of Marital Settlement

Agreement filed by N.B.C. (Father) relative to a modification of the amount of

child support Father pays to Mother for the support of the parties’ two children.

We affirm.

        The trial court provided the following factual and procedural history of

this matter, stating:

              The parties were married in May of 2006 and divorced on
        June 25, 2012. The March 22, 2012 Marital Property Settlement
        Agreement was incorporated into the final Divorce Decree and
        Order filed in the Court of Common Pleas of Indiana County,
        Pennsylvania. The parties have two children, [A.C.], age 10, born
        June [] 2007, and [D.C.], age 7, born July [] 2010. The Marital
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*   Retired Senior Judge assigned to the Superior Court.
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     Property Settlement Agreement provided that [Father] would pay
     child support to [Mother] in the amount of $2,000.00 by the 15th
     of every month. In addition to the Marital Property Settlement
     Agreement, the parties entered into a Consent Custody
     Agreement on March 22, 2012, which granted the parties shared
     legal custody with [Mother] receiving primary physical custody
     and [Father] receiving partial physical custody.

           Subsequent to the divorce, the parties, both Officers in the
     United States Military, moved to the state of California. Both
     parties have since remarried, seemingly causing the parties[’]
     previously amicable post-divorce relationship to unravel. Then, in
     the spring of 2015, [Mother] made a military transfer to Bahrain.
     Upon learning of [Mother’s] military transfer, [Father] initiated a
     custody action in California. Within the course of said lengthy
     custody action, the parties began to communicate and negotiate
     via multiple platforms since [Mother] was stationed overseas. The
     parties exchanged several offers and counteroffers while
     negotiating terms and eventually reached an agreement regarding
     each party’s custody rights to children. The agreement provided
     that [Mother] would receive sole legal and physical custody of the
     minor children, that [Father] would receive specific visitations
     times, and that the children were allowed to relocate with
     [Mother] whenever it becomes necessary for [Mother’s]
     employment even without [Father’s] approval. Both parties
     signed this agreement on March 30, 2016[,] and the agreement
     was filed on April 29, 2016. It is important to note that this
     agreement made no mention of child support payments.

           The parties’ stories regarding the formation and terms of
     said agreement differ and have led to the present matter.
     [Father] claims that he signed the March 30, 2016 agreement
     after negotiating a modification in child support payments with
     [Mother]. Citing to text message communications and emails
     between the parties, [Father] avers that the parties had an
     agreement to modify the child support payments from the $2000
     per month contained in the Marital Property Settlement
     Agreement to $500 per month from May 1, 2016 through April 30,
     2017; then $1,000 per month from May 1, 2017 through April 30,
     2018; and lastly to $1,500 per month from May 1, 2018 through
     July 22, 2028. [Father] further avers that the parties did not
     formalize the child support portion of their agreement because
     Pennsylvania, not California, maintained jurisdiction over the child
     support payments. Moreover, [Father] cites additional messages

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     indicating that [Mother] was to draft the child support provision in
     another document which the parties would sign and notarize and
     that [Mother] would file in Pennsylvania. It is [Father’s] argument
     that he signed the terms of the California agreement after the
     parties agreed to the child support modification terms, and that
     he relied upon [Mother] to file the second part of their agreement
     in Pennsylvania. To this point, [Mother] has not filed such a
     document in Pennsylvania.

           [Mother] claims that no such agreement to modify the terms
     of child support was ever reached. She avers that the parties
     reached the agreement in exchange for [Mother’s] not pursuing
     sanctions and attorney’s fees against [Father] related to their
     California custody case. Moreover, [Mother] claims that she has
     not had the Apple ID listed in [Father’s] exhibits since 2012/2013,
     and that she closed her former Gmail account in the spring of
     2015. As such, she claims that nothing would have been sent to
     [Father] after 2013 using the Apple ID listed in [Father’s] exhibits.

           Since the parties entered into their California agreement,
     [Mother] left California and moved with the children to Virginia.
     [Father], operating under the belief that the parties reached an
     agreement modifying his child support obligation, began making
     modified child support payments to [Mother]. [Mother] then
     alleged that [Father] was delinquent in his support payments,
     leading to [Father’s] receiving a letter from the Commonwealth of
     Virginia, Department of Social Services, Division of Child Support
     Enforcement, informing him that [Mother] had opened a case
     against him. Beginning in late 2016, even after meeting with the
     case manager in Virginia and consulting an attorney in Virginia,
     [Father’s] wages were garnished. These actions led to the filing
     of the Petition under consideration herein.

Trial Court Memorandum & Order (TCM&O), 8/31/17, at 2-4.

     The court then set forth the principles of contract law, which it applied

to the facts here to determine whether the parties had agreed to modify the

Marital Settlement Agreement as it related to child support. The court quoted

text and email conversations between the parties, determining that the parties

had reached an agreement to modify the support payments and had

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“manifested an intent to be bound by the terms found in the proposed order

contained in [Father’s] ‘Exhibit H.’” TCM&O at 9-10. The court also found

that the terms were sufficiently definite and that consideration existed. Thus,

the court entered the order dated August 31, 2017, that is now at issue.

      Mother appealed and filed a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2).       The trial court responded by

issuing an opinion in support of its order, stating:

            The [c]ourt was called upon to determine whether an
      agreement existed between the parties to modify the parties’
      original Marital Property Settlement Agreement, filed on March 22,
      2012. The primary issue was whether the parties agreed to
      modify the amount of child support [Father] would pay [Mother]
      in exchange for [Father’s] not opposing [Mother’s] desired
      relocation from the state of California to Virginia, and whether
      [Father] gave [Mother] sole legal and physical custody of the
      parties’ two minor children.

                                     . . .

            The substantive issue before the [c]ourt was whether the
      parties reached an agreement to modify the terms of [the] child
      support payment. To make this determination, the [c]ourt looked
      to basic principles of Pennsylvania contract law.

            The primary issue on appeal is jurisdiction and venue. Most
      counts in [Mother’s] Statement of Matters Complain[ed] Of
      address jurisdiction. The California court that handled the parties’
      custody case specifically declined to address issues of support and
      asserted that Pennsylvania retained jurisdiction over matters
      regarding support and matters not involving custody directly.

             The parties filed a Property Settlement Agreement (“the
      Agreement”) in this [c]ourt on March 22, 2012[,] in which the
      parties agreed that the [A]greement was to be construed under
      the laws of the Commonwealth of Pennsylvania in Paragraph 29
      of the Agreement. The Agreement specifically addresses the issue
      of child support in Paragraph 28. Additionally, [Mother] stated in

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     text messages and in an email (that corroborates the text
     messages) that she would file the agreement in a Pennsylvania
     court, as evidenced in [Father’s] Brief in Support of his Petition for
     Special Relief a[t] Exhibit F … and Exhibit J.

           [Mother] also contends that this [c]ourt abused its
     discretion by failing to hear any testimony about the allegations
     in the filed pleadings. This matter came before this [c]ourt on
     [Father’s] Petition for Special Relief and Modification of Marital
     Settlement Agreement and the parties agreed that they would
     submit briefs outlining their respective positions on the very
     matter decided. This agreement was outlined in an Order of Court
     dated April 10, 2017.

                              Conclusion

           Applying the facts of this case to the contract principles, the
     [c]ourt found that the parties reached an agreement to modify the
     child support payments for the reasons set forth in the Opinion
     and Order of Court dated August 31, 2017.

Trial Court 1925(a) Opinion (TCO), 11/22/17, at 1-2 (emphasis in original).

     Now, on appeal, Mother raises the following issues for our review:

     1. Does a Pennsylvania trial court have jurisdiction to enter a child
        support order when the subject children never resided in
        Pennsylvania and neither parent is a resident?

     2. May a trial court hear no testimony whatsoever, and not follow
        any of the rules of civil procedure, but proceed to make findings
        of fact and enter a decision retroactive to a date and time prior
        to enforcement actions of another state, prior to any request
        for modification?

     3. May a trial court apply Pennsylvania contract law concepts,
        despite the parties[’] having resided in California, and without
        considering California laws regarding how any alleged
        negotiated child support agreement or alleged contract must
        be approved before becoming a child support [o]rder?

     4. May a trial     court apply contract law only to alleged
        negotiations,   … agreement or contract, without ever


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         considering the best interests of the children or the children’s
         interests in the support decision?

      5. May a trial court accept a child support case but never hear any
         testimony whatsoever regarding the parties’ income or
         children’s needs and expenses and failing to make any findings
         on any support calculations, deviations, needs, expenses, or
         any other support issues beyond the alleged negotiations of an
         alleged contract?

      6. May a trial court allow a party to forum shop between at least
         three (3) states to pick a state more beneficial to him and his
         child support obligations?

Mother’s brief at 5-6.

      Initially, we note that when reviewing a child support order, we are

guided by the following well-settled standard:

      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. In addition, we note that the duty to
      support one’s child is absolute, and the purpose of child support
      is to promote the child’s best interests.

Morgan v. Morgan, 99 A.3d 554, 556-57 (Pa. Super. 2014) (quoting

McClain v. McClain, 872 A.2d 856, 860 (Pa. Super. 2005) (internal citations

omitted)).

      As noted by the trial court, Mother’s central argument is that

Pennsylvania does not have jurisdiction over this support matter. Rather, she

contends that because several states are involved, the federal Full Faith and


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Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B, is

controlling and pre-empts similar state laws. Noting that Father is a resident

of California and that she and the children reside in Virginia, Mother claims

that pursuant to the FFCCSOA, Father should have filed his modification order

in California and registered the Pennsylvania order there. Mother then quotes

various sections of the FFCCSOA, which she contends direct that California is

the proper jurisdiction to hear Father’s modification petition.

      Father counters Mother’s argument by pointing out that the FFCCSOA

provides that states are required to enforce child support orders entered in

another state and limits a state’s ability to modify another state’s child support

order. In other words, Father asserts that the FFCCSOA does not apply to the

instant situation, because the Pennsylvania court is not being asked to enforce

or modify another state’s child support order.       Rather, the court here in

Pennsylvania considered Father’s request to modify the child support provision

in the parties’ Martial Settlement Agreement that was incorporated in the

divorce decree issued in Pennsylvania.      Father cites Sections 7201(a) and

7205(a) of the Uniform Interstate Family Support Act (UIFSA), 23 Pa.C.S. §§

7201(a) and 7205(a), which he contends provides guidance regarding

jurisdiction for the situation presently before this Court.        The pertinent

language of these sections of the UIFSA provide:

      § 7201. Bases for jurisdiction over nonresident

         (a)     Jurisdiction.—In a proceeding to establish or enforce
         a support order or to determine parentage of a child, a tribunal

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         of this State may exercise personal jurisdiction over a
         nonresident individual or the individual’s guardian or
         conservator if any of the following apply:
                              . . .

            (2) The individual submits to the jurisdiction of this
            State by consent in a record, by entering a general
            appearance or by filing a responsive document having
            the effect of waiving any contest to personal
            jurisdiction.

23 Pa.C.S. § 7201(a)(2).

      § 7205. Continuing, exclusive jurisdiction to modify child
      support orders

      (a)      Extent.—A tribunal of this State that has issued a child
      support order consistent with the law of this State has and shall
      exercise continuing exclusive jurisdiction to modify the child
      support order if the order is the controlling order and:
                              . . .

            (2) even if this State is not the residence of the
            obligor, the individual oblige or the child for whose
            benefit the support order is issued, the parties consent
            in a record or in open court that the tribunal of this
            State may continue to exercise jurisdiction to modify
            the order.

23 Pa.C.S. § 7205(a)(2).

      Considering Father’s assertions, it appears that his position is

controlling. Moreover, we cannot overlook the language of Section 7205 that

indicates that a Pennsylvania court “shall exercise continuing exclusive

jurisdiction to modify” a child support order “even if [Pennsylvania] is not the

residence of the obligor, the individual oblige or the child for whose benefit

the support order is issued….” Id. Having reviewed the record in this matter,

we are compelled to conclude that Mother is due no relief with regard to Issue

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1. Moreover, Mother’s argument in which she attempts to support her third

issue centers on her contention that Pennsylvania does not have continuing

jurisdiction in this case, i.e., California law should have been applied as

directed under the FFCCSOA.1            For the same reasons with regard to our

discussion of Issue 1, we likewise conclude that Mother’s jurisdictional

argument relating to Issue 3 provides her no relief.

       We next turn to Mother’s second issue wherein she contends that it was

error for the court to have the parties submit the matter on briefs rather than

to hold a hearing to determine whether a change in circumstances occurred,

what constituted the parties’ incomes, what the children’s needs were and the

impact of the support guidelines on the particular circumstances of this case.

Mother also contends that the court incorrectly imposed the change in the

support amount to a point in time prior to the date of the filing of Father’s

petition.   Father responds that the parties had agreed that instead of a

hearing, they would each submit briefs and exhibits to support their respective

positions as to whether an agreement to modify the terms of the Marital

Settlement Agreement was reached.

       Notably, the trial court indicated that “[p]ursuant to the April 10, 2017

Order of Court, the parties agreed to submit case briefs in lieu of a hearing on



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1 In the context of the custody litigation, the California court declined to
consider any child support issues and directed that Pennsylvania had
continuing jurisdiction over any support matters. See TCO at 2.

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this matter.”    TCM&O at 1.    Mother not only agreed that no hearing was

needed, but she also fails to indicate when/where in the record she objected

to a lack of a hearing. Therefore, we are compelled to conclude that Issue 2

has been waived.      As support for our waiver disposition, we rely first on

Pa.R.A.P. 2117(c), which states:

      (c) Statement of place of raising or preservation or issues.

      Where under the applicable law an issue is not reviewable on
      appeal unless raised or preserved below, the statement of the
      case shall also specify:

                               . . .

            (4) Such pertinent quotations of specific portions of the
            record, or summary thereof, with specific reference to
            the places in the record where the matter appears (e.g.
            ruling or exception thereto, etc.) as will show that the
            question was timely and properly raised below so as to
            preserve the question on appeal.

      We also note that Pa.R.A.P. 302 (“Requisites for Reviewable Issue”),

provides that “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Likewise, Pa.R.A.P. 2119(e) (“Argument”)

directs that “an issue is not reviewable on appeal unless raised or preserved

below[.]”

      In her fourth issue, Mother contends that the trial court did not consider

the best interests of the children in its determination that the parties had

entered into a modification of the Marital Settlement Agreement relating to

child support.   Citing Knorr v. Knorr, 588 A.2d 503 (Pa. 1991), Mother

asserts that “child support was a child’s right and parents could not ‘bargain

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away the rights of their children.’” Id. at 505. Both parties rely on Kraisinger

v. Kraisinger, 928 A.2d 333, 340 (Pa. Super. 2007), which states that

“parties can make an agreement as to child support if it is fair and reasonable,

made without fraud or coercion, and does not prejudice the welfare of the

children.” The Kraisinger decision held that the parties’ agreement violated

such a standard because the father was required to pay substantially less

support than the guidelines would require and, therefore, it was not fair or

reasonable and prejudiced the children’s welfare.

      Although Mother did make reference to the support guidelines in her

brief with attached exhibits submitted to the trial court in response to the brief

with attached exhibits submitted by Father, these references were not

supported by or contained any evidence as to a calculation of what the

guideline amount would or should be. Specifically, Mother’s brief notes that

Father suggested a stipulation providing that the parties recognized that the

amount of support was below the guideline amount. Mother’s brief (to trial

court), at 7, 16. However, Mother merely requested that the trial court, if it

granted Father’s petition to modify, calculate the amount of support according

to the child support guidelines. Id. at 17. Without more, it appears that the

trial court with reliance on the numerous emails submitted to the court found

that consideration of the best interests of the children was taken into account.

Again, Mother did not raise this concern with the trial court until she filed her

statement of errors complained of; nor does the court discuss this issue in


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either of its opinions. Therefore, we must conclude that Mother has waived

Issue 4.

       Lastly, we consider Mother’s argument that relates to Issue 6.2

Essentially, Mother contends that Father was forum shopping for a state that

would advantage him and/or disadvantage her. Mother attempts to support

her position by stating that under the FFCCSOA either California or Virginia

would be the proper jurisdiction to consider Father’s petition for modification.

Specifically, Mother argues that Father should have sought the child support

modification in California, where he resided, where the child custody and

sanctions issues were being litigated and then were decided, where Mother

had retained an attorney, and where the support negotiations had occurred.

Mother also suggests that Virginia would have been an appropriate state in

which Father could have filed his modification petition in that she and the

children lived in Virginia and that Virginia had begun enforcement of the prior

support order by attaching Father’s wages. Mother asserts that Father did not



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2 In her list of issues provided in her brief, Mother does not present an
argument section directed at what she identifies as Issue 5. Rather, she
provides argument identified as Issue 5, which in actuality is her position
regarding Issue 6. Therefore, we are compelled to conclude that Issue 5 is
waived. See Pa.R.A.P. 2119(a) (“[A]rgument shall be divided into as many
parts as there are questions to be argued[.]”). See also In re. R.D., 44 A.3d
657, 674 (Pa. Super. 2012) (“The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal
authority.”); Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa.
Super. 2007) (stating that an issue is waived if no argument is presented in
support of a challenge to trial court’s determination).

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seek the modification in either Virginia or California because he assumed those

two states would not recognize the parties’ negotiations or that those states

would determine that he owed a higher amount due to the established support

guidelines that existed in those two states.

      Again, we are unable to determine where Mother raised this issue below.

Moreover, the record shows only that Father filed his modification petition in

Pennsylvania because the child support issue arose out of that portion of the

marital settlement agreement that addresses child support. Also, as noted in

footnote 1 herein, the California court refused to consider any child support

issues, indicating that Pennsylvania had jurisdiction.          The trial court was

simply   responding     to   Father’s   petition   requesting   the   child   support

modification. In fact, no evidence of forum shopping appears in the record.

Therefore, this issue does not provide Mother with any relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2018




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