J-S71018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JACQUELINE SIMON                       :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 EDWARD MCCUSKER                        :
                                        :
                     Appellant          :   No. 2125 EDA 2019

               Appeal from the Order Entered June 18, 2019
   In the Court of Common Pleas of Bucks County Domestic Relations at
                          No(s): 2013DR01247,
                            Pacses 234114054


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.:                      FILED FEBRUARY 14, 2020

      Edward McCusker (Father) appeals pro se from the child support order

addressing arrearages owed by Father to Jacqueline Simon (Mother). Upon

review, we affirm.

      The trial court summarized the factual and procedural background as

follows:

      Mother filed a complaint for support on June 21, 2013.

      On August 15, 2013, Father was ordered to pay Mother $1500.00
      for the support of their two minor children.

      Thereafter, due to a criminal conviction, Father was incarcerated
      for approximately four and a half years, during which time the
      Support Order was suspended effective December 30, 2014. He
      was incarcerated from May of 2014 until his release in September
      of 2018. (N.T., 6/18/19, p. 9).

      The parties entered into a Property Settlement Agreement dated
      September 12, 2016, in regards to their divorce, which was
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     officially docketed on September 30, 2016. This was incorporated
     as part of the final Decree in Divorce on March 20, 2017.

     On February 6, 2019, by Order of this Court, the Honorable James
     M. McMaster, determined the non-financial obligation order,
     effective December 30, 2014, is to be reinstated as a charging
     support obligation through PACSES. Additionally, the order shall
     terminate and be arrears only, effective November 14, 2016 due
     to older child J.’s emancipation.

     On March 8, 2019, this non-support matter was continued
     generally giving Father sixty days (60) to file a Petition for
     Modification.

     On     April  5,    2019,    Father    filed   a   “Petition for
     Modification/Termination of an Existing Support Order.” Within
     his Pro Se petition, Father alleged that Mother owed him money
     [and] claimed that “she has lived in our jointly owned home
     without making a single payment for over 9 years.” By the date
     of the hearing, Father no longer raised this argument.

     On June 18, 2019, a hearing was held before the Honorable Leslie
     Gorbey, to address Father’s repayment of arrearage, the amount
     of arrearage and his obligation to pay said arrearage. The current
     arrears balance is $39,075.69. There have been no payments
     since the order was reinstated.

     Following said hearing, the Court so ordered on the same date the
     following: “NFOB [nonfinancial obligation] order to reinstate and
     all arrears/fees previously removed from PACSES are to be
     reinstated. After the Hearing this date, the order that had been
     charging $1500.00 per month for two children is to be modified
     retroactively and arrears balance adjusted as follows: Due to the
     emancipation of child J[T.], effective 8/1/15, child support reduces
     to $979.00 per month for the remaining child. Order then
     terminates, effective 11/14/16 due to the emancipation of child,
     J[A.]. Arrears/fees to be payable at $1500.00 per month until the
     balance has been paid in full. Case then to close.” (Trial Court
     Order, 6/18/19).

     On July 16, 2019, Father filed, Pro Se, a timely Notice of Appeal
     from the Support Order entered on June 18, 2019.




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      On July 19, 2019 Father filed, Pro Se, his Concise Statement of
      Matters Complained of on Appeal.

Trial Court Opinion, 8/30/19, at 1-3.

      At the outset, we recognize our standard of review:

      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.

Samii v. Samii, 847 A.2d 691, 694 (Pa. Super. 2004) (citations omitted)

(emphasis added).

      On appeal, Father states his issues, verbatim, as follows:

      A. Did the trial court abuse its discretion and/or err as a matter of
      law and fact in entering the order reinstating the arrearages when
      [Mother] released all and any debts owed to her as stated in the
      Marital Settlement Agreement.

      B. Did the Court err when they did not allow a “stay” in order for
      me to produce my business P&L statements?

      C. Did the Court abuse their discretion when they did not consider
      the intent of the Settlement Agreement?

      D. Did the Court err when they ruled that I owed ANY arrearages
      when it was precisely written into the settlement agreement that
      [Mother] released me of ANY and ALL debts owed to her?

      E. Did the Court abuse their discretion by interfering with a
      settlement agreement which mutually released both parties of


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      ANY and ALL debt when it ordered I pay [Mother] monies she
      released me from?

      F. Did the Court err on its interpretation of Pa. law regarding
      Settlement Agreements and their effect on support orders?

Father’s Brief at 3-5 (suggested answers omitted).

      Five of Father’s six issues (A, C, D, E and F) are repetitive, and at their

essence “center around the parties’ property settlement agreement of

September 12, 2016, and Father’s assertion that it releases him from any child

support obligation, including specifically the repayment of arrearage.” Trial

Court Opinion, 8/30/19, at 4. This argument is completely unavailing.

      First, Father has conceded that the settlement agreement did not

address child support. See N.T., 6/18/19, at 7. Further, it is well settled that

the duty to support one’s children is absolute. See Depp v. Holland, 636

A.2d 204, 206 (Pa. Super. 1994). Even if Mother had agreed in the marital

settlement agreement to release Father from his child support obligation —

including arrears — our Supreme Court has expressly stated that parents

“have no power to bargain away the rights of their children.” Knorr v. Knorr,

588 A.2d 503, 505 (Pa. 1991).

      The trial court correctly explained:

            Father’s reference to [the] property settlement agreement
      in divorce, obfuscates the issues by mixing concepts of child
      support obligations with marital debt.      For purposes of his
      argument he treats these as identical.

            Pennsylvania law, however, draws a distinction between the
      legal obligation to provide support for one’s children, and the
      separate rights and responsibilities for addressing valid marital

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      debt. The property settlement agreement deals only specifically
      with those issues necessary to finalize the parties’ divorce.

                                       ***
             In this instance, as the record clearly demonstrates, and as
      uncontested by Father, a valid order of [child] support was
      originally entered in 2013. The order rendered Father an obligor.
      Irrespective of his failure to adhere, the order obligated Father as
      liable for child support payments.

Trial Court Opinion at 5.

      For the above reasons, we find no merit to Father’s argument that the

trial court erred in finding that Father and Mother did not and could not

“bargain away amounts accumulated for child support.”          See, e.g., N.T.,

6/18/19, at 7.

      In his remaining issue, “B”, Father states that the court erred by failing

to “allow a ‘stay’ in order for [Father] to produce [his] business P&L

statements,” because the statements “would prove” Father does “not have

the ability to pay $1500 per month.” Father’s Brief at 3. Again, Father’s issue

lacks merit.     Both the trial court and Mother counter that Father never

requested a stay, and the record supports their contentions. See Trial Court

Opinion, 6/18/19, at 10; Mother’s Brief at 17.

      Furthermore, the trial court emphasized that the parties were given “due

notice of the hearing of June 18, 2019.” N.T., 6/18/19, at 9. The trial court

explained:

      The support conference in this matter was scheduled and held on
      May 7, 2019. For both the conference and the hearing, the parties
      received the standard written Order as set forth in Rule 1910.27.
      As such, they were directed to provide, among other items, a true
      copy of their most recent tax return and the “Income Statement


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     and the appropriate Expense Statement” (enclosed with order) as
     required by Rule 1910.11(c). Father failed to provide the required
     information at either conference or hearing. Thus, Father, who
     filed the petition and sought no advance continuance, presumably
     had opportunity to gather whatever documents he believed to be
     necessary in support of his petition. Yet, when asked at the
     hearing whether he had brought stock certificates for his
     company, under cross by Mother’s counsel, Father testified as
     follows:

          Q. But, sir, on this brochure, as you’ve said, this is a
          previous company. Whose name is on this brochure,
          front page?

          A. Well, it's me, because I took over in 2018.

          Q. Okay.

          A. That’s me. I was president in 2018. It’s a new
          company.

          Q. But I believe you said the numbers belong to the
          old company, but yet –

          A. The ones you’re referencing in 2015, 2016, and
          ‘17, I’ve told you, that’s previous to me.

          Q. But it is safe to assume that since your name is
          on this company, on the front page, as the CEO and
          president, that this is your company?

          A. No, sir.

          Q. It’s not safe to assume?

          A. I’m an officer. There’s plenty of presidents that
          don’t own a company. I own 19 percent of the
          company. I swear. I’ll supply the certificate to you.

          Q. You haven’t brought any of the certificates?

          A. I didn't know what to bring[.]

     (N.T., 06/18/19, pp. 22-23).

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           The record, including this sequence of testimony, is bereft
     of any stay request from Father. Father was represented by
     counsel at said hearing. However, during his testimony it became
     apparent Father failed to bring paperwork with him which he says
     would have supported his own petition. His assertion that he did
     not know what to bring is insufficient reason to excuse his burden.
     No specific assertion was offered to suggest Father was unable to
     access or produce documents for his own company at the hearing.
     In fact, testimony was presented by Mother casting doubt on
     Father’s self-serving assertions.       Emails from Father were
     introduced wherein he claimed to be actually a majority
     shareholder and CEO of this company. (N.T., 06/18/19, pp. 50-
     51). At the very least, Father is a business owner and shareholder
     in a company which has a contract with Dick’s Sporting Goods
     Company. (N.T., 06/18/19, pp. 44-45).

Trial Court Opinion, 6/18/19, at 9-10.

     Upon review, the record compel our finding that the trial court did not

abuse its discretion court in concluding that Father failed to present

“compelling evidence” of an inability to pay, and ordering Father to pay child

support arrearages. See id. at 11.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/20




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