J-A21005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MIRIAM A. JOHNSON,                                  IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                      v.

ALBERT D. JOHNSON, JR.,

                            Appellant                     No. 2843 EDA 2015


              Appeal from the Order Entered August 28, 2015
              In the Court of Common Pleas of Chester County
                 Domestic Relations at No(s): 0582 N 1997
                            PACSES #133001257


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED NOVEMBER 17, 2016


      Albert D. Johnson, Jr., (Father or Petitioner) appeals from the order,

entered on August 28, 2015, that denied his request to terminate an existing

support order and an obligation to pay for health insurance coverage for

Jessica Amanda Gardener, who Father claims is no longer a dependent child.

We vacate and remand.

      The   trial   court    provided   the   following   factual   and   procedural

introduction to this case, stating:

            We consider the June 2, 2014 Petition of [Father] to
      modify an existing support order originally entered on February
      1, 1998 on the application of Miriam A. Johnson (the “Obligee”
      [or Mother]), Petitioner’s former wife and the mother of the
      parties[’] natural child, Jessica Amanda Gardener (hereafter “Ms.
      Gardner”).     Therein, Petitioner averred his retirement from
      employment, his ineligibility for continuing Ms. Gardener’s
      medical insurance coverage under his former company’s health
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     insurance policy, and his request that she secure coverage under
     The Patient Protection and Affordable Care Act. The Petition was
     amended on August 4, 2014 to include a prayer for the
     termination of the support order, upon the allegation that Ms.
     Gardner, who is now 39 years of age, is no longer a dependent
     child. No formal written response to the Petition was filed. The
     support order was modified by this court on October 17, 2002 by
     the removal of Petitioner’s natural son from the order, who was
     then 19 years of age; however, Ms. Gardener, whose date of
     birth is April [], 1976, was then 26 years of age and was found
     to remain an adult dependent child within the meaning of 23
     Pa.C.S.A. §[]4321(3). Petitioner was ordered to pay for her
     benefit the sum of $2,000 per month, effective January 1, 2002,
     the amount from which relief is now sought by Petitioner. We
     conducted a hearing on the Petition on May 11, 2015 at which
     Petitioner was represented by Evan Hambleton, Esquire, and
     [Mother] appeared pro se as the respondent to represent her
     daughter’s interest.

            On December 23, 2014, Petitioner served on the Obligee
     Requests for Admissions pursuant to Pa.R.C.P. 4014, to which no
     objection or response was made. Prior thereto, on October 23,
     2014[,] we entered an Order directing Obligee to respond to
     Petitioner’s discovery demand, including requests for production
     of documents and interrogatories, including those inquiring into
     Ms. Gardener’s treatment for any condition which might render
     her incapable of self-support. In its October 17, 2002 order, the
     court found that Ms. Gardener “has suffered and continues to
     suffer from multiple disabling mental illnesses.” Under Rule
     4014(b), requests for admissions to which no objection or
     response is made are admitted.

Trial Court Opinion (TCO), 8/28/15, at 1-3.

     Following this preliminary discussion, the court related numerous facts

about Ms. Gardener, involving her schooling, the locations to which she

moved over the ensuing years, and the jobs that she held. The court also

discussed Ms. Gardener’s previous diagnosis, the treatments she underwent,

and the medications she took. The court also found that:



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     There is no competent evidence that Ms. Gardener is physically
     incapable of working; however, even though she is a highly
     intelligent person, from the testimony adduced during trial,
     including our observation of her during her lengthy testimony,
     we find that she continues to suffer from a life-long psychiatric
     illness that prevents her from normally interfacing with other
     people. She displays continuing fearfulness of situations and
     people, lives an isolated life, with her two dogs her closest
     companions and protectors, and she has a work history that
     demonstrates an inability to successfully compete or hold on an
     ongoing basis a competitive position in the job market place,
     such as would allow her to become totally self-supporting.

TCO at 13 ¶ 21.

     Additionally, the court discussed Father’s financial situation upon his

retirement and Mother’s limited income.    The court also set forth the law

directed to the issue of whether a parent continues to have a duty “to

support a child that has a physical or mental condition, which exists at the

time the child reaches its majority that prevents the child from being self-

supporting.”   Id. at 16.   The court explained that the test a court must

employ “to determine continuing disability is whether the support beneficiary

has become and is now physically and mentally able to engage in profitable

employment and whether such employment is available to her at a

supporting wage.”    Id. (citing Hanson v. Hanson, 625 A.2d 1212 (Pa.

Super. 1993)). Notably, however, it is the adult child’s burden to prove the

conditions that make it impossible for her to be employed. Id. at 17 (citing

Verna v. Verna, 432 A.2d 630 (Pa. Super. 1981)).

     The court also noted that it did not “have the benefit of current

psychiatric testimony….” Id. at 17. However, in this regard, it stated:

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             It is well established that a court may not ordinarily take
      judicial notice in one case of the records of another case,
      whether in another court or its own, even though the contents of
      those records may be known to the court. Naffah v. City Deposit
      Bank, 13 A.2d 63 (Pa. 1940). However, we know from this
      Court's 2002 Order and the record made at that time in this self-
      same case that Ms. Gardener has suffered since childhood from
      psychiatric illness and previously has been diagnosed with
      schizotypal personality disorder.        People suffering from a
      schizotypal personality disorder typically display a need for social
      isolation, anxiety in social situations, odd behavior and thinking,
      have few or no close friends and are inappropriate in their
      display of feelings.       Source: Diagnostic and Statistical
      Manual of Mental Disorders (DSM); Encyclopedia of Mental
      Disorders. In our opinion, the evidence in this case clearly
      demonstrates that Ms. Gardener continues to suffer from a long-
      standing mental disability that adversely affects her ability to
      become fully self-supporting.        Given the instant facts, we
      conclude that the support recipient has rebutted the presumption
      of emancipation that arises as a consequence of her age.

Id. at 20 (emphasis in original). Accordingly, the trial court denied Father’s

petition and continued his obligation to pay support for Ms. Gardener and

provide health insurance coverage for her.

      Father filed a timely appeal to this Court and now raises the following

seven issues for our review:

      I. Did the trial court err in allowing the testimony of Jessica
      Gardener without prior notice to [Father]?

      II. Did the trial court err in relying on medical records in its
      opinion after sustaining the objection to the introduction of said
      records into evidence at trial?

      III. Did the trial court err in forming and relying upon its own
      medical opinions and conclusions regarding [Ms. Gardener],
      given the absence of competent evidence in the record of [Ms.
      Gardener’s] condition?




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      IV. Did the trial court err by, in effect, placing the burden of
      proof on [Father] to establish that a prior medical condition no
      longer exists?

      V. Did the trial court err in finding that Jessica Gardener is not
      capable of self[-]support?

      VI. Did the trial court err in its determination of a continuing
      support obligation which was against the evidence?

      VII. Did the trial court err in not terminating [Father’s] support
      obligation?

Father’s brief at 4-5.

      In reviewing an order entered in a support proceeding, an
      appellate court has a limited scope of review. The trial court
      possesses wide discretion as to the proper amount of child
      support and a reviewing court will not interfere with the
      determination of the court below unless there has been a clear
      abuse of discretion. The function of the appellate court is to
      determine whether there is sufficient evidence to sustain the
      order of the hearing judge. An abuse of discretion is not merely
      an error of judgment; rather, it occurs when the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable or the result of partiality, bias or ill-will.

Style v. Shaub, 955 A.2d 403, 406-07 (Pa. Super. 2008).                The Style

decision also provides that “[i]n Pennsylvania, the duty to support a child

generally ceases when the child reaches the age of majority, which is

defined as either eighteen years of age or when the child graduates from

high school, whichever comes later.” Id. at 408 (citing Blue v. Blue, 616

A.2d 628 (Pa. 1992)). However, the Style opinion further explains that “23

Pa.C.S.A. § 4321(3) … provides that ‘[p]arents may be liable for the support

of their children who are 18 years of age or older.’”          Id.   A continued

support obligation occurs “where such child is too feeble physically or

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mentally to support itself[.]”       Id. (quoting Commonwealth ex rel.

O’Malley v. O’Malley, 161 A. 883 (Pa. Super. 1932)).               Furthermore,

“[w]hen the disability resulting in the child’s inability to be self-sufficient

already exists at the time the child reaches the age of majority … the

presumption is rebuttable by the adult child upon proof that there are

‘conditions that make it impossible for her or him to be employed.’”          Id.

(quoting Hanson, 625 A.2d at 1214).

        We begin by addressing Father’s issue relating to the alleged reliance

by the court on recent medical records although the court had denied their

introduction into evidence. In conjunction with this argument, Father also

contends that the court relied on its own medical opinions, gleaning

information from medical records introduced in the court hearing held in

2002.     See discussion supra.     In the trial court’s supplemental opinion,

written after Father submitted his concise statement of errors complained of

on appeal, the court addressed these arguments, stating:

        [Mother] sought to introduce medical records of Ms. Gardener’s
        recent treatment at a community mental health service in the
        State of Washington. We precluded her from doing so in that
        such records without testimony of the provider constituted
        hearsay and denied [Father] the opportunity to cross-examine;
        however, we do not believe we were precluded from consulting
        this court’s file in this case, specifically Ms. Gardener’s medical
        records in the court’s file introduced at a prior court hearing in
        2002 in which [Father] sought termination/modification of his
        support obligation, that had been subject to cross-examination,
        and from which the court at that time found Ms.[] Gardener to
        be the victim of an on-going psychiatric illness from age 7.
        These records were equally available to [Father].


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                                   . . .

     Our discussion at page 20 of our [initial] opinion discusses our
     observations of Ms. Gardener during her trial testimony, and
     describes exactly the manner in which she presented while on
     the stand. Indeed, our findings of fact relative to her troubled
     employment history, such as it has been, and our observation of
     her trial demeanor and her responses to counsel’s questions and
     our own, supports the conclusion we reached under all of the
     facts as we found them to be. As the trier of fact, we had the
     authority to judge the demeanor of this witness, measure her
     credibility, and determine whether either was affected by mental
     impairment.      We do not believe we required psychiatric
     testimony to reach a conclusion respecting those factors, given
     her long-standing illness and the facts described in our findings
     that support our ultimate conclusion. Neither is our resort to the
     DSM, a manual available and commonly used by trial judges,
     unusual, nor inconsistent with the records in the court[’]s file
     pertaining to this case and Ms. Gardener.

Trial Court Supplemental Opinion (TCSO), 10/16/15, at 5-7.

     Specifically, Father argues that the court improperly relied on

unidentified medical records in arriving at its conclusion that Ms. Gardener

remained a dependent child.     Father further contends that the court is

prohibited from considering evidence not part of the record in this case or

from taking judicial notice of the records in another case, even if known to

the court. We agree. Although the certified record in this matter contains

copies of medical reports from the 2002 litigation, those documents were not

admitted into evidence in this case. Therefore, the court was not permitted

to rely on any information gleaned from those documents.       “A trial court

may not consider evidence outside of the record in making its determination.

Eck v. Eck, 327 Pa. Super. 334, 475 A.2d 825, 827 (1984). Nor may this


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[C]ourt uphold a trial court’s order on the basis of off-the-record facts. Id.

(citing In re Frank, 283 Pa. Super. 229, 423 A.2d 1229 (1980)).” Ney v.

Ney, 917 A.2d 863, 866 (Pa. Super. 2007).

       Here, the court references the more than ten-year-old medical records

not contained in the record in the instant case and the newer medical

records Mother sought to introduce.            The court directly indicates that it

precluded the more recent documents as hearsay, because they could not be

authenticated. However, the court apparently relied on selected documents

from the litigation that took place in 2002, which we conclude is troubling

because of the age of the information contained in those records and the

fact that the evidence is outside the record presently before the court.

Based upon this conclusion, we vacate the court’s denial of Father’s petition

and remand this matter for consideration by the court of the evidence before

it without reliance on any evidence, medical or otherwise, that is not part of

the record.1

       Order vacated. Case remanded for further action consistent with this

memorandum. Jurisdiction relinquished.




____________________________________________


1
  In light of the fact that we are vacating the order appealed from for the
reasons stated above, we do not address the other issues raised by Father in
this appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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