J-S03001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.C.,                                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

S.S.,

                            Appellant                 No. 2311 EDA 2017


                  Appeal from the Order Entered June 22, 2017
                 In the Court of Common Pleas of Bucks County
                             Family Court at No(s):
                                  2013DR00268
                            PASCES No. 144113794


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 28, 2018

        Appellant, S.S., appeals pro se from the June 22, 2017 order denying

his petition for modification of support. After careful review, we affirm the

portion of the order relating to child support, remand to the trial court for

further proceedings consistent with this memorandum, and quash the

remainder of the appeal.1

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 By per curiam order dated August 30, 2017, this Court determined that the
spousal support portion of the June 22, 2017 order is interlocutory and that
“only the portion of the order with regards to child support will be referred to
the panel assigned to decide the merits of this appeal.” Per Curiam Order,
8/30/17. See Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996) (noting
the difference between spousal support and alimony pendent lite claims, no
matter if filed as part of a divorce action or separately, is negligible, and
(Footnote Continued Next Page)
J-S03001-18



      This appeal arises from Appellant’s petition for modification of an

allocated child and spousal support order.          The record indicates that

Appellant has a history of filing modification petitions, regardless of whether

there has been a substantial change in circumstances. On June 22, 2017,

after a two-day hearing on this matter, the trial court denied Appellant’s

most recent petition for modification when it was made abundantly clear that

no material and substantial change of circumstances had occurred, and

Appellant attempted to argue issues not raised in his petition. We need not

reiterate the history of this case at length herein, as the trial court

sufficiently set forth the relevant facts and procedural history in its

September 18, 2017 opinion. See Trial Court Opinion, 9/18/17, at 1-4.

      On July 14, 2017, Appellant filed a motion for reconsideration of the

order denying his modification petition.2       He subsequently filed a timely

notice of appeal on July 20, 2017, followed by a timely, court-ordered
(Footnote Continued) _______________________

neither is appealable until all economic issues have been resolved); Fried v.
Fried, 501 A.2d 211 (Pa. 1985) (holding issues are reviewable after entry of
divorce decree and resolution of all economic issues); Hrinkevich v.
Hrinkevich, 676 A.2d 237 (Pa. Super. 1996) (stating child support orders
are immediately reviewable, notwithstanding pending divorce action).

2 The trial court did not rule on Appellant’s motion for reconsideration. A
court’s “failure to ‘expressly’ grant reconsideration within the time set by the
rules for filing an appeal will cause the trial court to lose its power to act on
the application for reconsideration.” Commonwealth v. Moir, 766 A.2d
1253, 1254 (Pa. Super. 2000). Thus, the “filing of a notice of appeal is
necessary to preserve appellate rights in the event that either the trial court
fails to grant the petition expressly within 30 days, or it denies the petition.”
Id.



                                          -2-
J-S03001-18



Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant now presents the following issues for our review:

      1. Did the court err in its determination that the matter of
         support was entirely interlocutory as it did not consider the
         permanent portion related to child support that will not be
         addressed at the equitable distribution [de novo] hearing?

      2. Did the court err in its determination that a prior
         determination and decision was made regarding [Appellee’s]
         current part[-]time employment[?] In addition, did the court
         err in its determination that the matter of [Appellee’s] relative
         current earning capacity [had] been addressed by the court
         previously?

      3. Did the court err in its prediction that the impact of the
         Support Court Determination on the Support Determination
         would at best be a 4 month period and that there would be an
         offset of changes in earnings of the parties rather than a
         change in favor of the Appellant[?]

      4. Was the court’s understanding of the determinations of the
         Domestic Relations Section Conference officers flawed[?]

Appellant’s Brief at 3-4 (unpaginated).

      As a prefatory matter, we note:

      [A]ppellate briefs and reproduced records must materially
      conform to the requirement of the Pennsylvania Rules of
      Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or
      dismiss an appeal if the appellant fails to conform to the
      requirements set forth in the Pennsylvania Rules of Appellate
      Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.
      Super. 2003). Although this Court is willing to liberally construe
      materials filed by a pro se litigant, pro se status confers no
      special benefit upon the appellant. Id. at 252. To the contrary,
      any person choosing to represent himself in a legal proceeding
      must, to a reasonable extent, assume that his lack of expertise
      and legal training will be his undoing. Commonwealth v.
      Rivera, 454 Pa. Super. 451, 685 A.2d 1011 (1996).

Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005).


                                     -3-
J-S03001-18



       Before we address the merits of Appellant’s claims, we must examine

whether the issues presented herein have properly been preserved.         In

accordance with Rule 1925(b), “issues not included in a Rule 1925(b)

statement will be deemed waived for review.”            Commonwealth v.

Hansley, 24 A.3d 410, 415 (Pa. Super. 2011);3 see also Pa.R.A.P.

1925(b)(4)(vii). After careful review, it is apparent that Issues 3 and 4 in

the instant matter are not included in Appellant’s Rule 1925(b) statement.

See Appellant’s Brief at 3-4 (unpaginated); TCO at 4. Accordingly, we are

constrained to deem these two issues waived.4

       With regard to Appellant’s remaining claims, we note that “[a]ppellate

arguments which fail to adhere to [the Rules of Appellate Procedure] may be

considered waived, and arguments which are not appropriately developed

are waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014).

“[I]t is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with pertinent

discussion, with references to the record and with citations to legal

____________________________________________


3 “Since the Rules of Appellate Procedure apply to criminal and civil cases
alike, the principles enunciated in criminal cases construing those rules are
equally applicable in civil cases.” Lineberger v. Wyeth, 894 A.2d 141, 148
n.4 (Pa. Super. 2006).

4 Even if Appellant had properly preserved Issues 3 and 4, we would
conclude that these issues are waived due to his failure to properly develop
his arguments in compliance with the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2101, 2119.



                                           -4-
J-S03001-18



authorities.” In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012). In addition,

the argument section of a brief “shall be divided into as many parts as there

are questions to be argued; and shall have at the head of each part—in

distinctive type or in type distinctively displayed—the particular point treated

therein, followed by such discussion and citation of authorities as are

deemed pertinent.” Pa.R.A.P. 2119(a). “We will not act as counsel and will

not develop arguments on behalf of an appellant. Moreover, when defects in

a brief impede our ability to conduct meaningful appellate review, we may

dismiss the appeal entirely or find certain issues to be waived.”        R.D., 44

A.3d at 674.

       Instantly, Appellant’s brief is woefully deficient.        Contrary to the

requirements set forth in Rule 2119, the Argument section consists of six

enumerated sub-sections; however, there are only four issues listed in the

Statement of Questions Involved.               See Appellant’s Brief at 3-4, 12-16

(unpaginated).      Appellant failed to label the sub-sections of his Argument

with headings, which makes it even more challenging to decipher the

already confusing substance of his brief. Id. at 12-16. We further observe

that Appellant’s Argument is underdeveloped,5 consists primarily of generally


____________________________________________


5 As best as we can determine, Appellant’s argument regarding Issue 1
consists of a mere two sentences, which include only general legal
conclusions and/or statements of law and no analysis whatsoever to support
his claim. See Appellant’s Brief at 12.




                                           -5-
J-S03001-18



stated facts, and he fails to cite to legal authority in support of his claims.6

Hence, we deem Issues 1 and 2 waived due to Appellant’s failure to

adequately develop his arguments in compliance with the Pennsylvania Rules

of Appellate Procedure.

       Moreover, even if Appellant properly preserved his issues and/or his

claims were not waived, we would affirm on the basis of the trial court’s

opinion. We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough and well-crafted opinion of the Honorable

Brian T. McGuffin of the Court of Common Pleas of Bucks County, Domestic

Relations Section, entered on September 18, 2017. We conclude that Judge

McGuffin’s extensive, well-reasoned opinion accurately disposes of the issues

presented by Appellant, and we would discern no abuse of discretion or error

of law.    Accordingly, we adopt Judge McGuffin’s opinion as our own and

affirm the June 22, 2017 order on that basis.

       Additionally, we acknowledge the trial court’s request that we

admonish Appellant for his continued waste of the court’s time and

resources.     See TCO at 11.           We remind Appellant that a petition for

modification of an existing support order will only be granted in the event of

a material and substantial change in circumstances which warrant such


____________________________________________


6 Appellant provides only one legal citation in the entire Argument section of
his brief and fails to provide any analysis whatsoever as to how that one
legal authority supports his position. See id. at 12.



                                           -6-
J-S03001-18



modification. See Summers v. Summers, 35 A.3d 786, 789 (Pa. Super.

2012) (citing Pa.C.S. § 4352(a); Pa.R.C.P. 1910.19(a)).       The burden of

demonstrating a “material and substantial change” rests with the moving

party. Id.

      Finally, we address Appellee’s request for attorneys’ fees pursuant to

Pa.R.A.P. 2744.    Rule 2744 provides that an appellate court may award a

reasonable counsel fee as further damages, “if it determines that an appeal

is frivolous or taken solely for delay or that the conduct of the participant

against whom costs are to be imposed is dilatory, obdurate or vexatious.”

An appeal is “vexatious” where it lacks any basis in law or fact, and where it

was filed with the sole purpose of causing annoyance.          Thunberg v.

Strause, 682 A.2d 295, 302 (Pa. 1996). “The appellate court may remand

the case to the trial court to determine the amount of damages authorized

by this rule.”   Pa.R.A.P. 2744.

      Here, Appellee is requesting an award of attorneys’ fees pursuant to

Rule 2744, “due to the need to defend her position regarding this litigation,

including legal research and preparation of responsive pleadings.” Appellee’s

Brief at 28.     She argues that Appellant’s multiple filings of modification

petitions merely attempt to re-litigate the same issues over and over again,

and that his brief consists of “ramblings with no legal or factual basis.” Id.

We agree with Appellee.        In fact, during Appellant’s prior appeal, we

recognized that there may be a need for sanctions against Appellant in the

future:

                                     -7-
J-S03001-18


            [Appellant’s] repeated pro se filings and appeals approach
     satisfaction of this standard. As noted by the trial court, “As
     reflected by the flurry of filings by [Appellant] on the docket …
     [Appellant], at every turn, after any decision by this Court, files
     petitions to modify his support obligation irrespective of whether
     there were any material or substantial changes in
     circumstances.” We note, however, that the trial court has
     already entered one order requiring [Appellant] to pay
     [Appellee’s] attorney’s fees and that the trial court continues to
     supervise proceedings between the parties. We believe the trial
     court is in a better position to assess the propriety of all of
     [Appellant’s] conduct at the end of the proceedings before it and
     to determine what sanctions, if any, are appropriate at that time.
     We therefore deny [Appellee’s] request that we impose
     additional sanctions in this appeal, without prejudice to her right
     to seek appropriate relief from the trial court if, when, and to the
     extent it becomes warranted.          We do, however, caution
     [Appellant] to exercise reason and restraint in the future
     progression of this case.

P.C. v. S.S., No. 517 EDA 2016, unpublished memorandum at 9 (Pa. Super.

filed Nov. 2, 2016) (internal citations to the record omitted).      Based on

Appellant’s failure to heed our warning and the frivolous nature of this

appeal, we grant Appellee’s request for relief in the form of attorneys’ fees

pursuant to Pa.R.A.P. 2744.    Accordingly, this matter is remanded to the

trial court to determine the amount of reasonable attorneys’ fees due and

owing to Appellee.

     Based on the foregoing, we affirm the portion of the June 22, 2017

order dismissing Appellant’s petition for modification of child support and

remand this matter to the trial court for further proceedings consistent with

this memorandum.

     Order affirmed. Case remanded. Jurisdiction relinquished.




                                    -8-
J-S03001-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/18




                          -9-
                                                                                                Circulated 03/12/2018 03:22 PM




      IN TfIE COURT OF COM.t\10N PLEAS OF BUCKS COUNTY) PENNSYLVANIA
                      DO.l.VlESTIC RELATIONS SECTION



                                                                              No.: 2013DR00268
                                         Appellee,
                                                                              PACSES No. 144113794
                       v.
    s.s.                                                                      2311 EDA 2017

                                         Appellant.


                                                            OPINION
                                         8,S.
         Appellant••••                                appeals from the Court's Order dated June 22, 2017,

  denying Appellant's request for a Modification of Support. The Court files this opinion pursuant ·

 to Pennsylvania Rule of Appellate Procedure 1925(a).
                   I        f   f    '




                                                     STATEMENT OF FACTS

         The Appellant in this matter is a frequent litigator in the Bucks County Court of Common
                        ,,
. Pleas, and given his difficulty i.11 accepting no for an answer to his frequent requests to modify

 his Support obligations, he is also a frequent Appellant. As such, the Trial Court has had to

 author prior- opinions             in this matter, and in setting forth the procedural history and facts
 underlying Appellant's instant Appeal, the Trial Court has chosen to incorporate the procedural

 history from its previous Opinion dated April 22, 2016, as follows: .
                                P.C...                                             .
               l
        Appel e�                   filed for divorce on January 9, 2013. As part of the divorce
        proceeding, Appellee also filed for equitable distribution, custody of a minor child, and
        alimony, In addition, Appellee requested that the Court award spousal and child support
        in the interim.

        On April 29, 2014, the Court, before the Honorable James M. McMaster, determined that
        Appellant was obligated to pay $1572.00 per month, allocated $954 for spousal support
        and $6 l 8 for the support of one minor child, [W.S.]. Arrears payment was set at $157.00
        pet month. In reaching this decision, the Court specifically reduced the full guideline
        amount of $3072.00 by $1,500 per month, to be credited to Appellee at the time of
        equitable distribution. At the same time, the Court reserved the right to increase support
 �      by $1,500.00 per month upon the sale of the parties' Avalon home. In fact, on March 4,
 �
        2015, an Order of Court was entered after the sale of the parties' Avalon home, which
        increased Appellant's support obligation from $1,572.00 to $3,072.00, and allocated
 �
        $1,865.00 for spousal support and $1,207.00 for child support.
 �
 �      On March 18, 2015, Appellant filed his First Petition to Modify. Judge McMaster then
 �      entered a new Order of Court on June 16, 2015, which increased Appellant's support
        obligation to $4403.00 per month, effective May 4, 2015, and allocated $2,890.00 for
 �
        spousal support and $1,513 for child support. Arrears was to be paid at an increased
�       amount of $880.00 per month.
de
�      Unsatisfied with the result, Appellant filed his Second Petition to Modify, merely six
       days later, on June 22, 2015, contesting his support obligation and a review of the Court's
�
       guideline calculations. Specifically, Appellant argued that the Court made a mistake in
�      calculating his income with respect to his bonus and that the Court did not properly
�      consider his arguments as to why Appellee should have been held at a higher earning
�      capacity. Also, Appellant wanted the Court to address a new issue, whether he would be
       awarded the child exemption deduction.                                   �
�
�        On August 31, 2015, this Court, after a hearing on the matter was held, modified
it      Appellant's'obligation by reducing his support from $4403.00 back to $3,072.00 per
�       month, allocated $1,872. 00_ for spousal support and $1,200.00 for child support. Arrears
�
        was to be paid at a decreased amount of $614.00 per month. The reason for the reduction
        was 'because we' found an error in the calculations made in the Domestic Relations'
�
        recommendation, The Court, in reliance on the recommendation, previously applied
�       Appellant's ..$29, 184.01 annual bonus that was paid in the beginning of the 2015 year to
�       Appkllap.t's year-to-date earnings in determining support. Essentially, Appellant's annual
        bonus was applied over a period of only four or five months, when support was contested
                 1
�
        on .l'{1ay 4, ?OJ\ instead of over the correct twelve months. The result artificially inflated
�
       Appellant's' Income and support obligation to $4403.00.
::\                .     .
:;a    In resolving th(i discrepancy, we reduced Appellant's support obligation and decided that
�      the Order dated August 31, 2015, would be effective the date Appellant filed his petition
       for �1qcvfic�.ii?P. on June 22, 2015. This Court did not make the Order retroactive beyond
�
       that date to May 4, 2015, as Appellant would have liked, because Appellant did not file a
�     motion to re.��-rtsi�er the Order dated June 16, 2015, or otherwise appeal that decision,
�     an� �n�tpa�'.��,C!se to file apetition for modification. This Court also declined to address
�     any other issi1�; as it would have been improper to overrule an order of another trial judge
�
      ofthe s�e.cpmt in the same case. Furthermore, we explained that the Court was not
      ev�ii !'�quired to make the modification, given that a petition to modify was procedurally
�     improper, but that a correction would be made in the interest of justice and fairness to
�     prevent :a calculation error from continuing.
�
                              . ..
      D�sJ?.ite ·�_lrea�y adjusting Appellant's support obligation, Appellant filed his Third
�
�
      Pe-�i�iofly) Mo;�ify on October 7, 2015, requesting another adjustment to his arrears
�
�
                                                 2
        :" ·r       i   I .



                '       I
                 balance.' Appellant once again requested that his arrears be adjusted to reflect the
                 overpayments as a result of the bonus calculation error. Appellant made identical
                 arguments, that his reduced support obligation should have been retroactively made
                 effective as of May 4, 2015, instead of June 22, 2015, the date of his Second Petition to
                 Modify. Appellant argued that the Court's Order dated August 31, 2015, left $2,16i.OO.in
                 uncorrected overpayment.

                · After a hearing was held .on January 8, 2016, thoroughly reviewing the matter,
                  Appellant's Third Petition to Modify was denied and dismissed. Appellant was further . ·
                  ordered to pay $500.00 for Appellee's attorney's fees. Thereafter; Appellant filed this
                  appeal. (Note: This history is from the 2016 Appeal, thus the word "this'treferences the
                 prior appeal.) As of the date the appeal was filed, the parties are still lo the process of
                 litigating the underlying divorce and equitable distribution matters.                 ·

             Tue Superior Court issued a Rule to .Show Cause on March 17, 2016, directing Appellant
              to 'address why the spousal support portion of the order denying and dismissing his
             petition filed on October 7, 2015, requesting an adjustment to his arrears balance and to
             pay Appellee's attorney's fees in the amount of $500.00 dollars are appealable. Appellant
             filed a response to the Rule to Show Cause, which was docketed on the Superior Court
             docket on March 28, 2016. Appellant in his response argues that he was under-the
             direction of the Court and the Support Conference Office of Bucks County to file a
             hearing for modification, but does not explain why the Order entered on January 8, 2016,
                         •            •       �                                 1 •                   •   •                '

             was .appealable at this time. Appellant also argues that the Court's January 8, 2016, Order
             ��1¥d�s"�o��l�P,ousal a�d childsupportratiosand is thereforeimmediately appealable in
             Pf!�:. A�. totliis Court's award of attorney's fees, Appellant merely states in a conclusory
           . nianneethat the decision was made without the support by the facts ofrecord.
            S�b�e�t��n_tll�s reflected by.the Superior Court docket entry dated April 4, 2.016; a Per
            <71!1)a1rro�1�t 1a.s issued stating that "only the port�on of the o�<ler wi� regard to child.
            support will be.. referred to the panel assigned to decide the merits of this appeal." The
            April (20 fo, Per Curiam Order further stated that "this is not a final determination as to ·
            tlJ? �i:��tieV Rf°t�e appeal."                               .                           ·

Trial Comt Opinion, April 22, 2016 (internal citations omitted).
                ·,I              .. :·                 ..:•               •     t,            ;


            ?tJ f11ch \3, ?O 17 Appellant filed yet another Petition for Modification of an Existing
                ...•' I                       .        •            .            .    '           •                 .

                                                                                          t



Support Ordei. }�pe.2ifidaily, Appellant petitioned to decrease his support obligation that was
                    '.                    ..          1.                :.·

                         ......                       I        I        ....
establishedbyr the Honorable James M. McMaster of this court on April 29, 2014. On that date,.
            .   '   • , ' •
                    :i       .
                             i            :       : ;                     -.�


Judge Mcivlasterdeterrnined Appellant's gross annual income to be approximately $191,000.
                                  1               I        '        .!,:        'I
                                                                                                          •




 I
   The Court's adjustment to Appellant's support on August 3 I, 2015, already saved Appellant in excess ofS479l .OO in support payments by the
time the Third ,Petitiqn to Modify was filed.

                                                      , I, ,            . •
                                                                                                              ,.,
                                                                                                              .)

                ;            :


            . : l .: -:                       :i ._·,,             1 :.
 The April 29, 2014, Order entered by Judge McMaster represents the most recent support order

 in this matter, and the one Appellant continuously and vexatious challenges and petitions to

 modify. Appellant's instant Petition for Modification states only, "Defendant is requesting a

 decrease due to a decrease in income." See Pet. for Modification.

         A support conference was held on April 17, 2017, where an-agreement between the

parties could not be reached. A hearing was then scheduled before this Court and was held over

 the course of two days, June 1, 2017, and June 20, 2017. Evidence and testimony revealed that

not only was Appellant incorrect in his assertion that his income had decreased from Judge
                                                                                     �

McMaster's determination of $191,000, but instead, his income had actually increased by

approximately $7 ,000 from 2015 to 2016. In fact, Appellant acknowledged the increase at the

outset ofthe hearing. See N.T. June 1, 2017, 7w8, Appellant then continuously argued issues that

were not presented in his Pet.iti6n. Specifically, and what is seemingly at the root of Appellant's
          .                 .
instant Appeal, Appellant argued that Appellee has a higher earning capacity than is currently
              .                 .
assigned to her. Therefore, this Court denied Appellant's Petition for Modification and entered

the instant Order dated June 22� 2017.

                  .. STATEMENT OF ERRORS COivIPLAINED OF ON APPEAL

        On April 14, 2017, Appellant submitted a Statement of Errors Complained of on Appeal,

raising the. fo ti owing;· in verbatim, for review:

        1. : N8t .itllow �ppell�t to present all the relevant evidence for the filing for modification
           . qf.supp�rt eligible to beheard before issuing an order dated June 20, 2017.

        2. Not rule specifically regarding plaintiff's current income and her "Earning Capacity"
           for the purposes of support.

       3. · NcWrul�:bn the permanent portion related to child support that will not be addressed
             at the equitable distribution "DE Novo>' hearing. Any claims to discrepancies related
           · to the child support portion are unlikely to be recovered. (Ritter, 518 A.2d at 322).



                                                      4
 :,:�

 :'")
 ;;j



�,
;�
;j.
                                                                                         DISCUSSION
�j
;"
':,#
             I.    This Court did·not Err or Abuse Its Discretion by Denying Appellant's March 13,
                   2017,-Petition and Entering its June 22, 2017, Order.

:;j                The following standard applies to the Superior Court's review of a support order:
�
                             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
2'                 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
;,,"f

•
                   manifestl
                    J           .. unreasonable
                        1\.1�\.l.)'   \.,,a0UJ..la � .. theV product of partiality
                                                   UJ.                       CU L , .Preiudice
                                                                                    .1 ·VJ vv, bias or 11· 1,w11' -.1,1 disc
                                                                                         U"-'   .       a.J.\.   QLI      o ..
                                                                                                                               0
                                                                                                                                +;� ...
                                                                                                                             l.Vt.lUll

                   has been abused. In addition, we note that the duty to support one's child i� absolute, and
:zt                the purpose of child support is to promote the child's best interest
�
         Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super. 2012).
�
�                 When. a party files a Petition to Modify a support order, it must be based on a "material
2$
        and substantial change in circumstances." Pa.R.C.P. 1910.19; 23 Pa.C.S. § 4352(a). The
�           •
                        . . '
                        ; I                 I
                                                   1°
                                                                I




                         ta1ty:b
                            1
                             ears the burden of proving a material change in circumstances has occurred .

•
�       petitioning

�
        Samii v. ·S�i;'               8�1 A'.2d 69 i � 695 (Pa. Super. 2004 ). A Trial Court may modify a support order
�
        only after .a _h�arip�'. on the merits, and only if clear and positive evidence is presented. Keating v.
�
                             :    I     4   •"          1           •

�       Keating, 595 A:2d 109, 115 (Pa. Super. 1991). "The lower court must consider all pertinent
         .           •   �        :::            � t        I           .


�
        circumstances and baseits decision upon facts appearing in the record which indicate that the
�                   - 'I: :: : I:�           : 11: • •                      "   •

�       moving pfu·tj/ditl' �t cii'tl not meet the burden of proof as to changed conditions." Samii, 847 A.2d

,�
                 •     ••-   ::!    .   j .••                                              .
�·



        at 695. LJstiy;           J: �6urt ·inay 'not :co�sider assertions that have not been raised in the petition.
        Be6gle -� .. -B�Jgl�, �52·A.2d 376, 377 (Pa .. super. 1994).

•
�


                  Applying these standards to the instant appeal, Appellant clearly did not meet his burden

        of proving a::rnatbd:al! mid substantial change in circumstances based on a decrease of income

        co�siderirtg h:is:i�cdme �ctually increased from 2015 to 2016. The Support Order Appellant


                                                                                                    5
      4
      ,)
      ;}
             petitioned to modify established his gross annual income was approximately $191,000, and yet
      J
      ;)     Appellant presented to this Court that his 2016 gross annual income was approximately
      ::>
             $198,000. When given the opportunity to present evidence and testimony as to how his income
  .1
  ;�         could have possibly decreased when it actually increased, he testified that his income should
  �
  j          return to the approximate $191,000 for calendar year 2017, which this Court was inclined to

  �
             accept. However, Appellant presented no testimony or evidence whatsoever that his gross annual
  �
  ;}         income decreased from the April 29, 2014, Support Order. Appellant only seemed to provide
  :;)
             evidence that his income actually increased in 2016 by $7,000, and that it would return to the
  ;>
  �         annroximate
            a.pl'1_ A.ll atv   il'l91 ,vvv
                               lV      (\(\(\ ;1.1.1
                                                 ... 2017 • Therefore
                                                             .iv1v!t v, thist»   r'r.n .. t
                                                                                 '\....,VUJ..\.   denied
                                                                                                   '-'   A'"''"'"'
                                                                                                       \.J
                                                                                                                   110 ... t's Petition
                                                                                                          Pl'""1.1.cu.1         v
                                                                                                                            ...1,.        C':01'
                                                                                                                                          l�
 ;)                                                                                                                                   >

 :}         Modification and entered the June 22, 2017, Findings of Fact, Decision and Order, explaining the
 �          Court's.reasoning,1yet h�re we are' again as Appellant continues to appeal and petition the same
 ;;)

 �          issues �ver and.ov'er again,
 :3
 j                  Additionally, Appellant's argument during the hearing regarding Appellee's earning

 �          capacity was improper, Appellant's March 13, 2017, Petition for Modification only contained a
 �
 �          single claim: .i that Appellant's support obligation should be modified due to Appellant's
 �
            decrease in inb6me:            An almost identical issue has been previously addressed by the Superior
�
�           Co�tt. In Beegle;pedtion�r h�d filed a Petition to Modify Support Order, where she indicated
�
            only that her income had decr�ased. At the hearing, petitioner raised an allegation that
�
�
            respondent's statement of child-care costs was inaccurate. The Superior CoU1t held the
�
�           following: ·       · :
�
                    Ruhd910.19: of the Pennsylvania Rules of Civil Procedure requires that "(a] petition for
�
                    modification or termination of an existing support order shall specifically aver the
;�                  material and �ubstantial change in circurnstances upon which the petition is based."
�                   Pa.R.C.P., Rule 1910. J9(a), 42 Pa.C.S.A. Because (petitioner's] petition stated only that
�                   her income had decreased, it was improper for the court below to consider [respondent's]
;\                                   ; I

:}
                                                                                 6
�
;;l
                    child-care costsduring its hearing on the petition, and its judgment cannot stand on that
                    ground,

       Beegle v. Beegle, 652 A.2d 376, 377 (Pa. Super. 1994).

                    Therefore, in the instant matter, it would have been improper for this Court to consider

      Appellant's extraneous allegation pertaining to Appellee's earning
                                                                  . . capacity, as-it was
                                                                                        . not
      specifically raised in Appellant's March 13, 2017, Petition to Modify.

                   Not only would it have been improper, but Appellee's earning capacity had already been

      determined by the DRS Conference Officers, and decided by the Honorable James M. McMaster

      of our Court .. On April 29, 2014, following a hearing, Judge McMaster entered an 'order on the

      record, stating, "[I]'m going to make a determination that mother is in fact working to her

      capacity at this time based on her efforts to find employment and based on all of the
                                           '
      circumstance." N.T. April 29,2014, 2. Instead of filing an appeal to that April 29, 2014,
                     •           !c        t        I
                                                        ... ,..          ,\       •       •


      Appellant haschosen to file 'continuous modification petitions attempting to allege a substantial
                                 .                                                                    .
      change in cir6tlinstande;, however, nothing has been presented to this Court in any proceeding,

     including the :b�rteh� which has met the burden of a "material and substantial.change in
                                                 '                                            .
                                                                      '.··
     circumstances."

                  It is ouropinion thatthis Court should not overrnle decisions made by another judge.of

     th�'s�e        court in the s�me. C?Se. See Golden v. Dion & Rosenau·- , 600 A.2q'· 568, 571 (Pa. Super.
              ·          I   .                 � -                .      ·�   �


     Ct. 1991) CWh'ere' a trial judge overrules the decision of another trial judge in the same case, he
                                      1·                 ,                                        •




                             •                 ·1                     •. .            .

     violates therule of lawwhichdisfavors such action").

                  The Trial C�in:t" has made it very clear to Appellant that the issue of Appellee's earning

     capacity has been decided, and the Court will not continue to repeatedly make the same decision.

     sudh a decision: can only be modified by showing a material and substantial change in

�.   circumstances, �vhich Appellant has continuously failed to do.
�       ! .

i                                                                                             7


                                                         .,
              child-care costs ·during its hearing on the petition, and its judgment cannot stand on that
              ground,

  Beegle v. Beegle, 652 A.2d 376, 377 (Pa. Super. 1994).

              Therefore, in the instant matter, it would have beep. improper for this Court to consider

 Appellant's extraneous allegation pertaining to Appellee's earning
                                                             . -
                                                                    capacity, as·it was not
                                                                                      '



 specifically raised in Appellant's March 13, 2017, Petition to Modify.

              Not only would it have been improper, but Appellee.'s earning capacity had already been

 determined by the DRS Conference Officers, and decided by the Honorable James M. McMaster

 of our Court ..On April 29, 2014, following a hearing, Judge McMaster entered an 'order on the

 record, stating, "[Ij'm going to make a determination that mother is in fact working to 'her

 capacity at this time based on her efforts to find employment       and based on all of the
                -              .
 circumstance." N.T. April 29,.2014, 2. Instead of filing an appeal to that April 29, 2014,

 Appellant -h�:choseti tb file :co'ntiuuous modification petitions attempting to allege a substantial

change in cird�stande;, however, nothing has been presented to this Coui.1 in any proc�eding,

including the h�rteh� which has met the burden of a "material and substantialchange in
                                           '                                           .
                                            '.··
circumstances."

             It is ouropiuion th�t 'ihis Court should not overrule decisions made by another judge.of
                                       •    ·1                         •


th�·s�e court in the same. case, See Golden v. Dion & Rosenm�. 600 A.1� 568, 571 (Pa. Super.
         .          I   . ,·       ,-      .....
Ct. 1991) ("Where' a trial judge overrules the decision of another trial judge in the same case, he
                    I   .          l        -·,    .

violates therule of lawwhichdisfavors such action").

             The Trial C�llti has made it very clear to Appellant that the issue of Appellee's earning

capacity has been decided, and the Court will not continue to repeatedly make the same decision.

Such a decision: can only be modified by showing a material and substantial change in

circumstances, �vh.ich 'Appellant has continuously failed to do.
   I .

                                                       7
         For the Superior Court's edification, Appellant has suggested in repeated arguments that

 Appellec's earning capacity should be increased because she typically has been working less

 than 30 hours per week, and most often as little as 20 hours per week. However, as has been

 considered and accepted by the Court through the Domestic Relations Office and its officers and

 their well-considered recommendations, Appellee's current employment position pays her an

unusually high hourly rate of $40.38 per hour in part to offset the idea that her employer offers
                        /lp(?(!-tfee
her less hours to work.               has long contended that the hourly rate is much higher for

her working a limited 20-30 hours per week, than it would be with another employer, if she were.
                                          .                                                  /}fptlie
working foll time throughout the year. As it is, she makes in excess of$42,000 annually ...

••••bas also indicated that there is room for advancement into more hours at her current

employer, and perhaps bonuses, advancement, etc., which was confirmed in late 2016, and early

2017, when she· began working more hours for a limited block of time (several months) and also

received a bomi; in the early part of 2017, for her extra efforts and work in late 2016. Despite

Appellants' suggestions and repeated arguments to the contrary, all of this has been considered

by the Trial Couit previously in.its review of the non-binding, non-dispositive, but still well-

reasoned and well prepared, Domestic Relations Office recommendations. Accordingly, not only

<lid Appellant fail to plead the issue in his Petition to Modify, but the issue of Appellant's

earning capacityhasbeen addressed previously and does not constitute a material and substantial
                  .               .
change in circumstances meriting a Modification of Support. In a final ironic twist, not only did

App'ellant fdil to pr��e ·what h:e plead in the way of a decrease in income, he actually proved that



       Furthermore, this Co�1t did not impede Appellant's ability to present all relevant
                          .   .       .
evidence. In fact, this Court went above and beyond in its accommodation to Appellant, allowing



              '       I                           8
 �
 ��
 �      some evidence of Appellee's earning capacity to be developed in discussing her recent bonus and
 �
        several months of a temporary increase in her hours. Though, the issue had not been properly
 �
 �     plead and the Trial Court was not even required to hear such evidence, this Court allowed such
 �
�      evidence so that the Court could address the issue of whether Appellant's increased income of
                                        .                                                         .
�
       approximately $7,000.00 for 2016 might be offset in part by Appellee's temporary increase in
�
�      hours and her bonus in early 2017, as well. A brief review by a Support Officer of these
�
�      calculations, left the Trial Court with tl,,.e impression that these amounts would likely cancel each
�
                                             \                           '.                                                                               "'   -·   ;    .

       other out, and did not in and of themselves necessitate a Modification of Support. Actually, there
�
�      was    �ua..1 � that
        cio " chanc    u.1a. Appellant
                               J.J     could have
                                              «.- received an· 1 ncrease
                                                                 '       in his Support but for .... asons
                   ...
             Cl.             \.IV                J.I..   \.IV   \,J. 1   V    \.IV.LY\.rU   l   J..J.V   t,,,,U0   .l   O U\.-t   ...,   '- A    J..   .I.'-'�          J..J0

�;                                                                                                                                              ""

�      stated herein, including below, the Court decided instead to simply dismiss his Petition.
�             .                      .
�
                                    as
              · Lastly, the case_ was re-scheduled to a second day to obtain clarification of Appellee's

�     income for the first half of 20i 7, the Trial Court learned that the patties were scheduled for a de
�
�     nova· Equitable Distribution Hearing before another member of its Courtjust a few weeks later.
�
      Gi-\}ebthe importancethat earnings and earning capacities have asrelevant factors in determining
�

�     Equ'itabie Distribuhoh percentages and Alimony, the Trial Court knew that the parties' earning
�
�     capacities were'Iikelyto be discussed and determined in significantdetail during that proceeding.
�                                                  .
�     This means that               any change or alteration this Court could have entertained would have been
��    subJect to.de novo:revi�w in the.more comprehensive Equitable Distribution environment, a mere
�
�     three (3) \�eeks·fat�r.            A� of the date of this opinion, the Equitable Distribution Hearing has had
�
(�    two   full days of t�stiniony, weeks apart, and is hopefully nearing a conclusion.
                   Given that the issue of Appellee's earnings and earning capacity had not been properly

t�    plead in theSupport Ntlodification Petition, that the issue of Appellee's earning capacity has been
�
�'.t- decided and addressed previously, that the earnings increases for 2016 and/or 2017 were likely to
                         .     I




                                                                                     9
  offset, and that the Equitable Distribution Hearing was scheduled so soon thereafter, this Court

  properly denied to grant the Petition to Modify in any respect.

                                            CONCLUSION

          Appellant has a history of filing Modification Petitions whether there has been a

 substantial change· in circumstances or not. Appellant's history includes: A Modification Petition

 filed on March 18, 2015, which eventually resulted in Appellant's support obligation being

 increased on June 16, 2015. Dissatisfied with that result, Appellant filed a second Petition to

 Modify just six (6) days later. On August3 l, 2015, this Court determined that there was in fact a

 clerical error made in the calculations presented toJudge McMaster, and with theconsent of

 counsel for Appellee, the Court addressed the clerical error and reduced Appellant's obligation

 retroactive to the date of filing: Dissatisfied with that result, Appellant again filed another

 Petition to Modify on-October 7, 2015. After a full and complete hearing.January 8, 2016, this

 Court dismissed Appellant's Petition, re-instructed him that he cannot simply file a Petition to

Modify whene�er he thinks there has been an error with the Court and awarded a modest amount
   '                        .
or counsel fees totaling $500.00 to Appellee due· to her continuing need to pay counsel to

respond to this serie� of Modification Petitions. Dissatisfied with that result, Appellant filed an
               .        .
Ap�e�l to the Superior Court, Se� 517 EDA 2016. The Superior Court affirmed in part and

quashed the remaining frivolous and improper claims. As to the $500.00 counsel fee award, the

Superior Court·h-bld that such an appeal was interlocutory and not a Final Appealable Order.

N6t,,,: the instant Appeal sterns from this Court's June 22, 2017, Order denying Appellant's
March   13,· 20 i 7, Petition:for Modification when it was made abundantly clear that no material
�d substanti�l change ·or" circumstances occurred, and Appellant attempted to argue issues not




                                                  10
         As reflected by the flurry of filings by Appellant on the docket, and as summarized

 above, Appellant, at every turn, after any decision by this Court, filed petitions to modify his

 support obligation irrespective of whether there were any material or substantial change in

circumstances.

        Therefore, in light of the foregoing reasons, the Trial Court respectfully suggests that its

Order of June 22, 2017, denying Appellants Petition for Modification due to Appellants

unequivocal failure to meet its burden, should be affirmed, The Trial Court further requests that

the Superior Court admonish the Appellant for his continued waste of the Court's time and
                                                                                   ,,

resources, and allow the Trial Court to review any further Support Petitions filed by the

Appellant to determine if a hearing is even necessary or appropriate.




DAIB:��




             I   .




                                                11
