J. A11006/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.Y.C.                                    :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
J.S.,                                     :        No. 1462 EDA 2014
                                          :
                         Appellant        :


                  Appeal from the Order Entered April 4, 2014,
             in the Court of Common Pleas of Montgomery County
                Civil Division at No. 04-09396, PACMS 00773690


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 09, 2015

        Appellant, J.S. (“Husband”), appeals from the order seizing assets

from his bank account in order to satisfy his child support obligation.   We

affirm.

        The case has an extensive nine-year history that began when appellee,

D.Y.C. (“Wife”), filed a complaint for divorce in 2004.   We adopt the trial

court’s recitation of the procedural history.

                   On March 13, 2006, [Husband] and [Wife]
             reached an agreement on the amount of child
             support to be paid by [Husband]. In an Order dated
             March 13, 2006, the Honorable Toby Dickman
             ordered that the amount of arrears related to child
             support be addressed in equitable distribution. On
             March 23, 2011, [Husband] and [Wife] attended a
             hearing before an equitable distribution Master which
             resulted in a Report and Recommendation.
             Thereafter, [Husband] filed a Motion to remand the
             case back to the Master. On April 12, 2011, the
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          parties entered into an agreed support Order,
          wherein [Husband] pays $391 per month basic child
          support, and $50 toward arrears, for a total of $441
          per month (Agreed Support Order”). On August 22,
          2011, the Honorable Carolyn Carluccio entered an
          Agreed Order granting [Husband]’s Motion to
          remand the equitable distribution claim to the Master
          and containing a provision that “[t]he Master’s
          decision is binding upon the parties and shall be
          issued with a 236 Notice entered as a Judgment
          Lien.” On December 17, 2012, the parties again
          appeared before the equitable distribution Master.
          On February 6, 2013, a Master’s Report, Decision,
          and Judgment upon Equitable Distribution, Alimony,
          Counsel Fees and Costs (hereinafter “2013 Master’s
          Report”) was entered which recommended that
          judgment be entered in favor of [Wife] and against
          [Husband]    in   the   amount      of   $30,382.50,
          recommended charging [Husband]’s account in the
          support action in the amount of $7,852.23 in
          arrearages, and further recommended denying
          [Husband]’s claim for attorney’s fees and costs.
          Thereafter, on February 8, 2013, [Husband] filed
          timely exceptions to the Master’s Report dated
          February 6, 2013.

                On June 14, 2013, the Honorable Garrett Page
          issued an Order ruling that the parties’ August 22,
          2011 Agreed Order legally binds the parties to the
          2013 Master’s Report dated February 6, 2013 and
          that said Agreed Order was not modifiable by the
          Court.    Subsequently on July 25, 2013, the
          Honorable Garrett Page issued a Divorce Decree and
          Order that divorced the parties from the bonds of
          matrimony and further ordered that judgment be
          entered in favor of [Wife] and against [Husband] in
          the amount of $30,382.50 and [Husband]’s account
          in the support action be charged in the amount of
          $7,852.23 in arrears.        On August 19, 2013,
          [Husband] filed a fast track appeal pursuant to
          Pa.R.C.P. 904(f) to the July 25, 2013 Divorce Decree
          and Order. That matter is still pending on appeal
          with the Superior Court.



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                 On January 17, 2014, pursuant to the
          Pennsylvania Consolidated Statutes Title 23 Section
          4304.1 and 4305 and Pa.R.C.P. 1910.23(a), the
          Honorable Kelly Wall, issued an “Order to Freeze
          Assets,” directing Wells Fargo Bank, N.A. to freeze
          assets belonging to [Husband] up to $7,852.23, the
          outstanding balance of [Husband]’s support arrears.
          On January 27, 2014, the Domestic Relations Office
          provided notice of the Order to [Husband].          On
          February 7, 2014, [Husband] filed an Objection to
          Order to Freeze Assets.        In [Husband]’s six (6)
          paragraph Objection to Order to Freeze Assets,
          [Husband] stated that the January 17, 2014 Order
          froze funds in his Wells Fargo Bank account in the
          amount of $7,852.23, and argued that because he
          filed a timely appeal to the July 25, 2013 Decree and
          Order that consolidated arrears with funds awarded
          in equitable distribution, “this Court lacks any and all
          jurisdiction to freeze any funds of [Husband].” On
          February 9, 2014, [Wife] filed a Motion to Overrule
          the Objection to Order to Freeze Assets arguing that
          [Husband]’s objection cannot form the basis of a
          valid objection to the Order to Freeze Assets. This
          Court received both petitions and scheduled oral
          argument on [Husband]’s objection, and [Wife]’s
          Motion to overrule said objection. On March 28,
          2014, both parties appeared and presented
          argument to the Court.

                [Husband] argued that because the July 25,
          2013 Divorce Decree and Order directed that
          [Husband]’s account in the support action be
          charged in the amount of $7,852.23 and [Husband]
          appealed that Order to the Superior Court, DRO had
          no jurisdiction to freeze [Husband]’s assets for that
          amount of money. [Husband] argued that even
          though the Agreed Support Order was being
          enforced and [Husband] reportedly had been paying
          $50 per month toward the arrears amount, the total
          arrears amount (i.e. the $7,852.23) is pending
          before the Superior Court so to freeze assets based
          on that amount was error. Furthermore, [Husband]
          argued that if [Wife] wanted to continue the
          enforcement of the July 25, 2013 Decree and Order,


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            then [Wife]’s remedy would have been to try to
            quash the appeal.

                   In response, [Wife] argued that under
            Pa.R.A.P. § 1701(b)(2), this Court has continuing
            jurisdiction to enforce Orders unless [Husband] filed
            and requested a supersedeas from the court
            pursuant to Pa.R.A.P. § 1731(b). In addition, [Wife]
            argued that even if [Husband] had requested a
            supersedeas, it should have been denied pursuant to
            the August 22, 2011 Order, which states that
            [Husband] waived his right to stay enforcement
            during the appeal process.

                  This   Court   deliberated  on    [Husband]’s
            objection to the court’s authority to issue the
            January 17, 2014 Order enforcing the July 25, 2013
            Decree and Order during the pendency of appeal.
            Thereafter, on April 1, 2014, this Court issued an
            Order overruling [Husband]’s objection and granting
            [Wife]’s Motion to overrule said objection.     On
            May 5, 2014, [Husband] filed a timely Notice of
            Appeal to the Superior Court.

Trial court opinion, 6/23/14 at 1-5 (references to footnotes omitted).

      Husband presents a single issue for this court’s consideration:

            Did the trial court abuse its discretion when it
            permitted the seizure of [Husband]’s bank account to
            satisfy child support arrears when [Husband] had
            been making $50.00 month payments on the arrears
            pursuant to a 2011 Agreed Support Order?

Husband’s brief at 3.

      In reviewing Husband’s claim, we note that our standard of review in

matters of support will allow us to reverse the trial court only when there

has been an abuse of that court’s discretion. Ney v. Ney, 917 A.2d 863,

866 (Pa.Super. 2007).



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      The domestic relations section has the authority to “[i]ssue orders in

cases where there is a support arrearage to secure assets to satisfy current

support obligation and the arrearage by: . . . [a]ttaching and seizing assets

of the obligor held in financial institutions.” 23 Pa.C.S.A. § 4305(b)(10)(iii).

The Rules of Civil Procedure implementing this provision are set forth in

Pa.R.C.P.,   Rule    1910.20(b)(3),     42    Pa.C.S.A.   and    Rule    1910.23.

Rule 1910.20 provides that “[u]pon the obligor’s failure to comply with a

support order, the order may be enforced . . . pursuant to Rule 1910.23,

attaching and seizing assets of the obligor held in financial institutions.”

Rule 1910.20(b)(3). Rule 1910.23 provides, in relevant part as follows:

             (a)    Upon identification of an obligor’s assets held
                    by a financial institution, the court shall, upon
                    certification of the overdue support owed
                    by the obligor, enter an immediate order
                    prohibiting the release of those assets until
                    further order of court. . . . Service of the order
                    on the financial institution shall attach the
                    asset up to the amount of the overdue support
                    until further order of court.

             (b)    The domestic relations section shall provide
                    written notification of the attachment to the
                    obligor. The obligor and any joint owner of the
                    account who has been notified by the financial
                    institution may object to the attachment in
                    writing or by personal appearance before the
                    domestic relations section within 30 days after
                    issuance of the notice. The grounds for an
                    objection are limited to the following:
                    (1) no overdue support exists under the
                    support order or there is a mistake in the
                    certified amount of overdue support;
                    (2) there is a mistake in the identity of



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                    the obligor; or (3) the account is not
                    subject to attachment as a matter of law.

           (c)      If no objection is made within 30 days after
                    notice was issued, the court shall, upon proof
                    that obligor was properly served with notice of
                    the attachment, enter an order seizing the
                    assets up to the amount of overdue support
                    owed.     The order shall be served on the
                    financial institution and a copy of the order
                    provided to both parties.

Pa.R.C.P. 1910.23(a)-(c) (emphasis added).1         “[T]he Rule implies, and

common sense dictates, that the court should take some action to consider

and dispose of the objections before proceeding further with a seizure

order.” Cutlip v. Shugars, 815 A.2d 1060, 1062-1063 (Pa.Super. 2003).

     Instantly, the premise of Husband’s argument is simple.          Husband

argues he was in full compliance with the April 12, 2011 support order and


1
 The support guidelines differentiate between “overdue support” and “past
due support” as follows:

           “Overdue support,” the amount of delinquent support
           equal to or greater than one month’s support
           obligation which accrues after entry or modification
           of a support order as the result of obligor’s
           nonpayment of that order.

           “Past due support,” the amount of support which
           accrues prior to entry or modification of a support
           order as the result of retroactivity of that order.
           When nonpayment of the order causes overdue
           support to accrue, any and all amounts of past due
           support owing under the order shall convert
           immediately to overdue support and remain as such
           until paid in full.

Pa.R.C.P. 1910.1.


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there was no basis to seize his assets.      However, we note that in his

objection to the order freezing his assets, Husband claimed the trial court

lacked jurisdiction to freeze any funds because Husband filed an appeal of

the trial court’s July 25, 2013 order.2

      In response, Wife contends Husband’s argument is factually inaccurate

and his statement that he was at all times in compliance with the child

support order is disingenuous at best and completely belied by his history of

support payment maintained by domestic relations. (Wlife’s brief at 7.)3

      The March 28, 2014 notes of testimony indicate counsel for Husband

stated: “It is our contention that since the order is on appeal, that there is

no standing, so to speak by DRO to take an order to freeze the assets. And

Common Pleas and DRO has [sic] no jurisdiction at this time to address that

particular amount of money.” (Notes of testimony, 3/28/14 at 3.) The trial

court, in its June 23, 2014 opinion, stated, “the objections hearing focused



2
  We note that the appeal Husband claimed divested the trial court of
jurisdiction was handed down as an opinion filed on September 2, 2014.
Chen v. Saidi, 100 A.3d 587 (Pa.Super. 2014). In the appeal, there is no
discussion regarding the sum of $7,852.23 that was added to Husband’s
child support arrears.
3
  Wife has supplemented her brief with copies of PACSES case financial
summaries which appear to support her position.          (See R16b-22b.)
However, we are precluded from considering copies of these records. See
Kessler v. Broder, 851 A.2d 944 (Pa.Super. 2004), appeal denied, 868
A.2d 1201, (Pa. 2005) (on appeal, inclusion in the reproduced record is not
an acceptable substitute for the original certified record);Warfield v.
Warfield, 815 A.2d 1073, 1074 n.1 (Pa.Super. 2003) (this court must rely
solely on the contents of the certified record).


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on [Husband’s] objection as articulated, namely, that the trial court was

divested of jurisdiction and lacked authority to enforce the arrears amount

stated in the July 25, 2013 Decree and Order.” (Trial court opinion, 6/23/14

at 6.) The trial court went on to state:

                  During the objections hearing, [Husband] did
            comment that he was paying $50 per month toward
            arrears, but argued this relative to the fact that he
            had no issue with Agreed Support Order being
            enforced, rather [Husband] took issue with the total
            arrears amount frozen (i.e., $7,852.23) because
            [Husband] believed that the accuracy of that arrears
            amount would be addressed on appeal to the
            Superior Court. As [Husband] failed to raise the
            issue in his Objection to Order to Freeze Assets
            and during the hearing, and also failed to
            submit any evidence to the court on the issue,
            this court had no reason to assume that the
            January 17, 2013 Freeze Asset Order that
            specifically states it was issued pursuant to
            Pa.R.C.P. 1910.23 did not comply with
            1910.23(a), where a representative from DRO
            certified that [Husband] owed overdue support
            prior to the court issuing the freeze order.

Id. at 6-7 (emphasis added) (reference to notes of testimony omitted).

      We have reviewed the certified record. Husband was identified by the

tactical enforcement unit of MCDRS as owing overdue support arrears. As

stated in Rule 1910.23 there are three limited grounds for an objection;

namely, no overdue support exists or there is a mistake in the certified

amount of overdue support; there is a mistake in the identity of the obligor;

or the account is not subject to attachment as a matter of law. Instantly,

Husband did not pursue any of the permitted grounds for objection.



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     Based on the above, we affirm the order of the trial court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/9/2015




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