J-A11030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LUCRETIA MOYE                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BAKARY NJIE

                            Appellant                 No. 1591 EDA 2015


                  Appeal from the Order Entered April 29, 2015
              In the Court of Common Pleas of Philadelphia County
                        Family Court at No(s): 01-70094
                                               PACSES 103103717


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 06, 2016

        Appellant, Bakary Njie (Father), appeals from the April 29, 2015 order

granting in part and denying in part his petition for special relief, seeking

modification of his child support obligation due to Appellee, Lucretia Moye

(Mother). After careful review, we affirm.

        A summary of the history of this case follows.1 The parties are parents

of a son (Child) who was the subject of a support case initiated in

Philadelphia, Pennsylvania in 2001, with a final order issued in July 2004.

Mother and Child reside in Philadelphia and Father resides in Atlanta,
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  For the purpose of this recitation, we glean the history of this case from
the summaries provided by the trial court’s September 3, 2015 opinion and
Father’s brief, due to the paucity of the certified record as discussed infra.
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Georgia.    Pursuant to the Uniform Interstate Family Support Act (UIFSA),

the Pennsylvania support order was registered in Georgia as a responding

state and tribunal.        See generally 23 Pa.C.S.A. §§ 7101-7901.                  On

November 17, 2008, the Georgia court closed the case and set arrears at

zero.

        On September 22, 2011, Father was the victim of a shooting that left

him permanently disabled. Father thereafter sought and was awarded Social

Security Disability Income (SSDI).              On April 19, 2012, the Philadelphia

Domestic Relations Office (DRO) administratively reinstated the support

order retroactive to November 17, 2008, because the order had been

terminated by Georgia in error.            On December 1, 2014, the underlying

support order was terminated effective November 17, 2014, upon the Child

turning 18 years of age, but an arrears only order was entered for $645.48

per month.2

        Thereafter, Father’s retroactive lump sum payment of his SSDI was

garnished by the DRO, which Father asserts was the first he became aware

that the Georgia termination order had been reversed. Subsequently, Father

filed a petition for special relief on March 11, 2015, and an amended petition

for special relief on April 13, 2015.          On April 29, 2015, the trial court held a

hearing on Father’s petitions, with Father to appear telephonically. After an

attempt to call Father at the commencement of the hearing found him
____________________________________________
2
    The accumulated arrears at the time exceeded $50,000.00.


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J-A11030-16


unavailable, the hearing proceeded in his absence. At the conclusion of the

hearing, the trial court denied Father’s request to discharge the current

arrears, denied Father’s request to modify the basic child support retroactive

to the date of Father’s disability, and denied Father’s request to designate

the matter as complex in order to permit discovery. The trial court did grant

Father’s request for an audit of his support case and granted a reduction in

Father’s monthly arrears payment from $645.48 per month to $300.00 per

month. Father filed a timely notice of appeal on May 28, 2015.3

       On appeal, Father raises the following issues for our review.

              [1.] Did the Trial Court abuse its discretion when it
              failed to allow [Father] a hearing on the question of
              whether the state of Georgia had the authority to
              terminate [Father’s] child support obligation, and
              whether the Commonwealth of Pennsylvania
              erroneously reinstated the underlying child support
              order?

              [2.] Did the Trial Court abuse its discretion by not
              allowing [Father] to offer evidence that the Order
              exceeds his Social Security Disability payments and
              as such the Order exceeds the [Self Support Reserve
              (SSR)]?

              [3.] Did the Trial Court abuse its discretion by not
              designating this matter as complex and allowing
              [the] parties to engage in discovery so that [Father]
              could see changes in [Mother’s] income since the
              entry of the Order in 2004?

              [4.] Did the Trial Court abuse its discretion by not
              eliminating and remitting all arrears accrued on this
____________________________________________
3
  Father and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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J-A11030-16


              account since       the   time     that   [Father]    became
              disabled?

Father’s Brief at 3.4

        We initially note that the certified record provided to this Court

contains only the trial court’s September 3, 2015 opinion filed pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a), together with a “case

financial summary” attached as a court exhibit.5                   This Court has long

admonished as follows.

              This Court cannot meaningfully review claims raised
              on appeal unless we are provided with a full and
              complete certified record. This requirement is not a
              mere “technicality” nor is this a question of whether
              we are empowered to complain sua sponte of
              lacunae in the record.       In the absence of an
              adequate certified record, there is no support for an
              appellant’s arguments and, thus, there is no basis on
              which relief could be granted.

Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super. 2006) (en banc).

Furthermore, it is the responsibility of the appellant to ensure the

completeness of the certified record. Id. at 7.
____________________________________________
4
    Mother did not file an appellee brief.
5
  On July 15, 2015, this Court, per curiam, issued an order directing Father
to order and pay for the trial court transcripts no later than July 24, 2015.
We issued a second per curiam order on July 31, 2015, acknowledging that
Father had complied. The transcript, however, was not forwarded by the
prothonotary to this Court. Father has included a copy in his reproduced
record. As Father was not on notice the transcript was not supplied to us,
we conclude Father is not at fault for this gap in the certified record.
Nevertheless, even considering the transcript as discussed within, we
conclude Father is not due any relief.



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            The certified record consists of the “original papers
            and exhibits filed in the lower court, the transcript of
            proceedings, if any, and a certified copy of the
            docket entries prepared by the clerk of the lower
            court.” Pa.R.A.P.1921. Our law is unequivocal that
            the responsibility rests upon the appellant to ensure
            that the record certified on appeal is complete in the
            sense that it contains all of the materials necessary
            for the reviewing court to perform its duty.

Id.; see also Pa.R.A.P. 1931 cmt. (noting appellant is responsible to take

steps to correct any omissions from the list of record documents prepared

for transmission to this Court by the clerk of the trial court).       For these

reasons we could deem Father’s issues on appeal waived.          See Preston,

supra.

      To the extent Father’s issues are reviewable on the existing certified

record and transcript, we note 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.

Summers v. Summers, 35 A.3d 786, 788 (Pa. Super. 2012), quoting

Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008) (internal citation

omitted).


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      Father first asserts the trial court abused its discretion when it failed to

afford Father a hearing on whether Georgia had the authority to terminate

Father’s support obligation in 2008 and whether Pennsylvania was correct in

administratively reinstating the support order in 2012. Father’s Brief at 9.

Father claims the trial court inappropriately relied on laches in refusing to

address the issue.   Id. We conclude the extant record and the applicable

statutory law belie Father’s assertions.

      First we note that while Pennsylvania reinstated Father’s support order

administratively on April 19, 2012, Father was granted a hearing on his

modification motion on April 29, 2015. Contrary to Father’s assertion, at the

April 29, 2015 hearing Father never asked the trial court to address the

propriety of Georgia’s termination or Pennsylvania’s reinstatement of the

support order. The only mention of the Georgia action occurred as follows.

                  THE COURT:       I have it. I have -- first of
            all, the arrears are $14,635.32 which are all –
            they’re all owed to the obligee here. There are no
            welfare arrears. Let me ask you a question, under
            what authority do you have to join the Philadelphia
            County Domestic Relation Section as an additional
            defendant or respondent?

                   [FATHER’S ATTORNEY]:        My
            understanding from reviewing your records, Judge, is
            that the Domestic Relations Section transferred this
            under the interstate proceedings to Georgia where
            there was some litigation, but ultimately it was
            closed because the Domestic Relation Section
            refused to comply or cooperate with Georgia. And
            the reason that this is important, Judge, is because
            ultimately the facts of the case are pretty sad. Mr.
            Njie, in 2011 was shot and injured and as a result,

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J-A11030-16


           he’s been disabled and he is receiving disability
           benefits.

N.T., 4/29/15, at 4-5.

     Discussion then took place about the amount of Father’s SSDI

payments, and the issue of Georgia’s termination was not mentioned again.

Furthermore, the trial court’s later reference to laches was in response to

Father’s claim that Mother had failed during the life of the support order to

report any changes in her income. The trial court did not mention laches in

connection with the termination and reinstatement of the order. Id. at 9-

10. We therefore conclude that the trial court did not preclude Father from

having a hearing on this issue.    Rather, Father has waived the issue by

failing to present it to the trial court when he had an opportunity to do so.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a).

     Furthermore, we conclude Father’s legal position is without merit. In

support of his contention that Georgia, as the responding tribunal, possessed

the authority to modify the support order, Father cites Ga. Code Ann. § 19-

11-124. That statute provides in pertinent part as follows.

           § 19-11-124. Duties and powers of responding
           tribunal

           (a) When a responding tribunal of Georgia receives
           a petition or comparable pleading from an initiating
           tribunal or directly pursuant to subsection (b) of
           Code Section 19-11-120, it shall cause the petition
           or pleading to be filed and notify the petitioner
           where and when it was filed.

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J-A11030-16



            (b) A responding tribunal of Georgia, to the
            extent not prohibited by other law, may do one
            or more of the following:

                  (1) Establish or enforce a support order,
                  modify a child support order, determine the
                  controlling child support order, or determine
                  parentage of a child;

                                          …

                  (4) Determine the amount of any arrearages
                  and specify a method of payment;

                                          …

Ga. Code Ann. § 19-11-124 (emphasis added).           Father fails to cite the

controlling portion of Georgia’s enactment of UIFSA, to wit, as follows.

            § 19-11-170. Modification of child support
            order of another state

            (a) If Code Section 19-11-172 [(pertaining only to
            situations where all parties and the children reside in
            Georgia)] does not apply, upon petition a tribunal of
            Georgia may modify a child support order issued in
            another state which is registered in Georgia if, after
            notice and hearing, the tribunal finds that:

                  (1) The following requirements are met:

                        (A) Neither the child, nor the obligee who
                        is an individual, nor the obligor resides in
                        the issuing state;

                        (B) A petitioner who is a nonresident of
                        Georgia seeks modification; and

                        (C) The respondent is subject to the
                        personal jurisdiction of the tribunal of
                        Georgia; or


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J-A11030-16


                   (2) This state is the residence of the child or a
                   party who is an individual, is subject to the
                   personal jurisdiction of the tribunal of Georgia,
                   and all of the parties who are individuals have
                   filed consents in a record in the issuing tribunal
                   for a tribunal of this state to modify the
                   support    order     and   assume      continuing,
                   exclusive jurisdiction.

                                        …

Ga. Code Ann. § 19-11-170.

      Clearly, at the time Georgia terminated Father’s support order, both

Mother and the Child continued to reside in Pennsylvania.         Therefore, the

conditions   of   Section   19-11-170(a)(1)(A)     and   (B)   were     not   met.

Additionally, Mother never consented to Georgia assuming continued

exclusive jurisdiction, so Section 19-11-170(a)(2) did not apply.        We thus

conclude Georgia lacked authority to modify the support order, and

Pennsylvania was not bound to recognize the termination.         23 Pa.C.S.A. §

7612. For these reasons, we discern no abuse of discretion by the trial court

in not revisiting the issue of the April 19, 2012 reinstatement of the

underlying support order.

      In his second and fourth issues Father claims the trial court abused its

discretion by not allowing him to offer evidence of his SSDI income, by

declining to discharge all arrears, or alternatively by setting a monthly

support obligation on arrears that exceeds his SSR.        Father’s Brief at 12.

Again, our review of the transcript belies Father’s assertion. First, Father did

not make himself available to participate in the hearing via telephone

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J-A11030-16


despite adequate notice of the hearing. N.T., 4/29/15, at 3. Furthermore,

during the course of the hearing, Father’s counsel indicated to the trial court

that he had documentation of amounts Father received in SSDI. Id. at 6,

10, 11. However, counsel never offered those documents into evidence, and

nowhere in the record did the trial court preclude Father’s attorney from

doing so.     See generally id.      Remission of arrears by a trial court is

permitted only where an order is unenforceable or where “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.”

Pa.R.C.P. 1910.19(f).    Father has not met this burden.      Consequently, we

conclude, based on the state of the record before it, that the trial court did

not abuse its discretion in declining to remit Father’s arrears or in reducing

Father’s monthly arrears payment from $645.48 to $300.00.

      Father finally claims the trial court abused its discretion by denying his

request to designate the case as complex and permitting him to engage in

discovery.    Father’s Brief at 13; see Pa.R.C.P. 1910.9, 1910.12(c).         We

agree with the trial court’s determination “that a designation of this support

matter   as   complex    was   not   necessary   or   appropriate   because   the

establishment or modification of a running support order was not at issue,

[]Father had been making payments on an arrears only order, [and] he has

verifiable income from his Social Security disability benefits.”      Trial Court

Opinion, 9/3/15, at 8.


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J-A11030-16


      For all the foregoing reasons, we conclude Appellant’s issues on appeal

are either waived or without merit. We discern no abuse of discretion by the

trial court in denying in part Father’s petition for special relief. Accordingly,

we affirm the trial court’s April 29, 2015 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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