J. S26020/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


K. W. K.                                    :     IN THE SUPERIOR COURT OF
                          Appellant         :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
M. L. L.                                    :
                                            :
                                            :
                                            :     No. 1700 MDA 2016

               Appeal from the Order Entered September 12, 2016
                  In the Court of Common Pleas of York County
                   Domestic Relations at No(s): 3057 SA 2004
                                                 DRO: 85452
                                                PACSES 947106911

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                            FILED AUGUST 31, 2017

        Appellant K.W.K.1 appeals the Order entered September 12, 2016,

directing that Appellee M.L.L. is not obligated to pay child support.     After

careful review, we affirm.

        The parties have one child together for whom Appellee had been

obligated since 2008 to provide $109 per month in child support to




*
    Former Justice specially assigned to the Superior Court.
1
  Because this is a child support matter, we are using only initials to identify
the parties. We have changed the caption accordingly.
J. S26020/17


Appellant.2    On August 5, 2016, the Domestic Relations Office held an

administrative review of that support Order.                Appellee was not in

attendance, but the Domestic Relations Officer (“DRO”) who presided at the

conference had a physician’s medical verification form indicating that

Appellee is fully disabled due to mental illness.                The DRO entered a

nonfinancial obligation Order changing Appellee’s child support obligation

from $109.00 per month to $0.

      Appellant requested a de novo support hearing before the court of

common pleas. On September 8, 2016, the court held the hearing at which

the solicitor for the Domestic Relations Office appeared on behalf of

Appellant. Appellee appeared pro se. The DRO also attended the hearing.

      Appellant’s counsel acknowledged Appellee’s disability, but argued that

Appellee has had the disability for years and has been able to work off and

on. Counsel also acknowledged that the medical verification form indicating

Appellee’s    full    disability   had   been   presented   at    the    administrative

conference,     but     “question[ed]    what   weight   can     be     given   to   that

determination or document.” N.T., 9/8/16, at 5.

      Appellee testified that her psychiatrist considered her fully-disabled,

and that she was awaiting the resolution of her appeal of the denial of social

security disability benefits.       She further stated that she had just recently

2
  According to Appellant’s counsel, the prior Order was based on a judge’s
determination that Appellee had an earning capacity of $7.00 per hour at 40
hours per week.



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(i.e., four days before the de novo hearing) started working 25 hours per

week at La Quinta Hotels earning $8.00 per hour. Id. at 3-5. Appellant did

not object to any of Appellee’s testimony.

      In response to the court’s inquiry, the DRO showed the judge a copy of

the medical disability form dated May 16, 2016, indicating that Appellee is

fully disabled at least through the end of the year 2016. Appellant did not

object. Again in response to court inquiry, the DRO stated that at Appellee’s

current part-time wage of $8 per hour, her annual income is $10,400, which

is below the self-support reserve (“SSR”). Appellant did not object to any of

the DRO’s testimony.

      Appellant stated that he did not agree that the prior Order should be

changed because Appellee has been able to work full-time in the past, and

he is the only person supporting his son. Id. at 7.

      The court concluded that because Appellee’s income does not exceed

the SSR, the “bare minimum a person needs to support themselves,” a

nonfinancial obligation Order was proper.     Id. at 7.    The court further

observed that in light of the psychiatrist’s verification, “[t]he fact that

[Appellee] is able to work part-time certainly does not raise an implication

that she can work full-time[.]” Id. at 5. The court informed Appellee that

she is required to notify the Domestic Relations Office if her income changes.

The court entered the nonfinancial obligation Order on September 12, 2016.




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     Appellant timely appealed. Both the trial court and Appellant complied

with Pa.R.A.P. 1925.

     Appellant raises the following issues for our review:

     1. Whether      the   lower  court   erred   by    holding   the
        Appellee/Defendant to actual part-time earnings rather than a
        full time earning capacity based upon a physician’s
        verification     form    that    was      contradicted     by
        Appellee’s/Defendant’s employment and denial of social
        security?

     2. Whether the court erred in inappropriately relying on a
        physician’s verification form that was not admitted into
        evidence pursuant to Pa.R.Civ.P. 1910.29?


Appellant’s Brief at 4 (misspellings corrected; some capitalization

omitted).

     Appellate review of a child support order is very narrow.      We may

reverse a support order only if we find that the Order cannot be sustained on

any valid ground. Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008).

“The decision of the trial court will not be reversed absent an abuse of

discretion or an error of law.”     Maue v. Gilbert, 839 A.2d 430, 432 (Pa.

Super. 2003) (citations omitted).

     Appellant first contends that the trial court erred in giving the

psychiatrist’s verification form, dated four months prior to the de novo

hearing, any weight because Appellee testified that she was working part-




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time.    See Appellant’s Brief at 8.   Appellant is challenging the weight and

credibility determinations made by the trial court.3

        When considering issues of credibility and weight of the evidence, “this

Court must defer to the trial judge who presided over the proceedings and

thus viewed the witnesses first hand.” Mackay v. Mackay, 984 A.2d 529,

533 (Pa. Super. 2009) (citation and quotation omitted).

        When the trial court sits as fact finder, the weight to be assigned
        the testimony of the witnesses is within its exclusive province, as
        are credibility determinations, [and] the court is free to choose
        to believe all, part, or none of the evidence presented. [T]his
        Court is not free to usurp the trial court's duty as the finder of
        fact.

Id. (citations and quotation marks omitted).

        Contrary to Appellant’s implication, in reaching its decision the trial

court considered not only the physician verification form, but also the

testimony of the parties and the DRO. The court’s Order provides:


3
  Appellant also states that Appellee “failed to sustain her burden of proving
that her disability caused a change in circumstance to warrant modification
of the support order.” Appellant’s Brief at 9, citing Caswell v. Caswell, 421
A.2d 762 (Pa. Super. 1980). That one sentence is the sum and substance of
what appears to be a challenge to the sufficiency of the evidence. In
addition to failing to develop the argument or to provide any analysis,
Appellant failed to raise this challenge in his Pa.R.A.P. 1925(b) statement.
We, thus, conclude any sufficiency challenge is waived. See Pa.R.A.P.
302(a) (providing that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”); Pa.R.A.P. 2119 (delineating
appellate briefing requirements); MacNutt v. Temple Univ. Hosp., Inc.,
932 A.2d 980, 992 (Pa. Super. 2007) (“Appellants have the burden of
developing their claims on appeal; arguments that are not appropriately
developed are waived.”).




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      . . . [T]he parties having appeared and upon testimony taken,
      the Court has ascertained that the Defendant is disabled. In
      spite of that, she is working part-time but the amount that she is
      making does not exceed the reserve and, accordingly, there is
      no basis for a charging order.         Accordingly, the plaintiff’s
      [Appellant’s] appeal is dismissed and the order continues to be a
      nonfinancial obligation order with a charging order of 0.

Trial Ct. Order, entered 9/12/16.

      In light of our highly deferential standard of review, we decline to

reweigh the evidence upon which the trial court based its factual

determination.    We conclude that there are valid grounds upon which to

sustain the court’s determination.       Accordingly, no relief is due on

Appellant’s first issue.

      Appellant next contends that the “lower court erred by relying on a

Physician Verification Form that was never admitted into evidence, and

specifically not admitted into evidence in compliance with Pa.R.Civ.P.

1910.29.”4 Appellant’s Brief at 9. He also avers that because the form was


4
  Pa.R.C.P. No. 1910.29, entitled “Evidence in Support Matters,” provides, in
relevant part:

      If the matter proceeds to a record hearing and the party wishes
      to introduce the completed Physician Verification Form into
      evidence, he or she must serve the form on the other party not
      later than 20 days after the conference. The other party may file
      and serve an objection to the introduction of the form within 10
      days of the date of service. . . . In the event that the record
      hearing is held sooner than 30 days after the conference, the
      trier of fact may provide appropriate relief, such as granting a
      continuance to the objecting party.

Pa.R.Civ.P. 1910.29(b)(2) (emphasis added).



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“never introduced into evidence at the hearing, … Appellant[] did not have

an opportunity to object under Rule 1910.29(b)(2).” Appellant’s Brief at 11.

      We note initially that it was not a party to the proceeding that

presented the document to the court; rather it was the DRO. Accordingly,

Rule 1910.29 is arguably not applicable.

      Further, “[i]t is axiomatic that, in order to preserve an issue for

review, litigants must make timely and specific objections during trial[.]” In

re R.P., 957 A.2d 1205, 1222 (Pa. Super. 2008) (citation omitted);

Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be

considered for first time on appeal).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court emphasizes that

Appellant never objected to the admission of evidence at the de novo

hearing. The record indicates that there were no exhibits admitted during

the hearing.   However, it was Appellant’s attorney who first informed the

court that a medical disability verification form had been submitted at the

administrative review conference.       N.T. at 2.   In addition, when the court

asked the DRO if a copy of a medical disability form had been submitted at

the conference, Appellant did not object.      Instead, the following exchange

occurred:

      DRO: Last form received was on May 18, 2016. Next form is due
      September – this month. There is a copy of a form in here
      dated May 16, 2016, which was before the conference.

      Appellant’s Attorney:    I don’t think it was submitted at the
      conference.


                                        -7-
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      DRO: Do you want to see a copy of it? This is what I have.

      The Court: Thank you.
                                     ****

Id. at 4.

      At no time did Appellant object to the DRO’s testimony, the court’s

review of the form, or Appellee’s testimony.        Further, at no time did

Appellant’s counsel assert an objection based on the existence of Rule

1910.29. Contrary to Appellant’s contention raised here, he had numerous

opportunities to object to testimony about the form and the court’s review of

the form. He failed to do so. Such failure to raise this issue before the trial

court resulted in waiver.

      Moreover, it was in fact Appellant who first brought the existence of

the form to the court’s attention, and only queried the weight the court

should give the form.

      Accordingly, we conclude that Appellant’s challenge to the court’s

consideration of the form or testimony about the form has been waived.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




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