J-A21032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIC JOHN ASKINS                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

LISA ANN DAVISON

                         Appellant                   No. 1695 WDA 2016


             Appeal from the Order Entered October 5, 2016
               In the Court of Common Pleas of Erie County
     Domestic Relations at No: NS200901183/PACSES NO: 937110996


BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 9, 2017

      Appellant, Lisa Ann Davison (“Mother”), appeals pro se from the

October 5, 2016 order denying her petition for modification of her child

support obligation. We affirm.

      The record reflects that Appellee, Eric John Askins (“Father”), filed a

complaint for support of the parties’ minor child on December 5, 2011. On

April 23, 2012, the trial court ordered Mother to pay $649.11 per month in

support, plus $90.00 in arrears. Mother has since filed several modification

petitions alleging she sustained injuries in various accidents and thus was

unable to work.    In the instant modification petition, filed June 30, 2016,

Mother alleged that she is out of work and that a car accident aggravated

her existing injuries. The trial court assessed Mother’s petition as follows:
J-A21032-17


            Mother further testified that a January 2016 accident
     aggravated her neck and back injuries. Mother, however, is not
     credible. Since institution of the support action, Mother has
     repeatedly petitioned to terminate or suspend her support
     obligations on the basis of inability to work and, repeatedly, her
     own evidence has contradicted her position. In 2012, Mother
     petitioned for suspension of her support obligation alleging
     inability to work.     The court denied her petition when the
     evidence showed that Mother, who had been denied disability
     benefits, was released from her physician to return to work. In
     2014, Mother requested that the court terminate her support
     obligation as she was medically unable to work as the result of
     an accident. The evidence revealed, however, that Mother was
     released by her physician to return to work, she was fully active
     and her employer denied her disability claims. In 2015, Mother
     requested that her support obligation be suspended as she was
     unable to work due to injuries from another accident. The
     evidence showed, however, that Mother continued to work for
     three months after the allegedly disabling accident, forgot to see
     her doctor until that time, and actively engaged in Tae Kwan Do
     during the time that she alleged she was unable to work. With
     regard to Mother’s present allegation of a fourth debilitating
     accident, she presented a Physician Verification Form, dated July
     29, 2016, in support of her position that she is unable to work.
     As with the accident in 2015, it is clear that, once again, Mother
     did not seek treatment until two months after the alleged
     accident. Moreover, the statements written on the Form reflect
     Mother’s perception, rather than the results of an independent
     evaluation.    Specifically, in the section discussing Mother’s
     inability to earn income, there is a handwritten statement
     indicating “Pt stated medical condition started May 11, 2015,
     effecting [sic] earning potential.” As further detailed above,
     Mother is not credible. In this regard, the Court did not give the
     Physician Verification Form any weight.

Trial Court Opinion, 12/19/16, at 6-7.

     On appeal, Mother argues the trial court erred in denying her

modification petition because she is unable to work and because she no

longer has a job. Our standard of review is well-settled:




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J-A21032-17


              The amount of a support order is largely within the
       discretion of the trial court, whose judgment should not be
       disturbed on appeal absent a clear abuse of discretion. An abuse
       of discretion is not merely an error of judgment, but rather a
       misapplication of the law or an unreasonable exercise of
       judgment. A finding that the trial court abused its discretion
       must rest upon a showing by clear and convincing evidence, and
       the trial court will be upheld on any valid ground.

Portugal v. Portugal, 798 A.2d 246, 249 (Pa. Super. 2002).

       The Domestic Relations Code permits modification of support orders if

the requesting party demonstrates a substantial change in circumstances.

23 Pa.C.S.A. § 4352(a).         Rule 1910.19 of the Pennsylvania Rules of Civil

Procedure governs modification petitions. We have reviewed the record, the

applicable law, and Mother’s pro se brief.1 We conclude that the trial court’s

December 19, 2016 opinion accurately addresses Mother’s arguments. We

affirm the October 5, 2016 order on the basis of that opinion, and we direct

that a copy of the opinion be filed along with this memorandum.

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017
____________________________________________


1
   Father appeared pro se before the trial court and did not file a brief with
this Court.



                                           -3-
J-A21032-17




              -4-
·'                                                                                      Circulated 10/30/2017 02:05 PM




     ERIC J. ASKINS.                                  IN THE COURT OF COMMON PLEAS
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                                                    OPINION

             December     Jii   2016: This child support matter is before the Court on Lisa A. Davison's

     (hereinafter "Mother") Notice of Appeal. Mother appeals this Court's October S, 2016 Order

     which denied her Petition for Modification of an Existing Support Order.

                                            PROCEDURAL       HISTORY

            Eric J. Askins (hereinafter "Father"), on December 15, 2011, filed a Complaint for

     Support of the parties' minor child. Following a support conference and a de nova hearing, an

     April 23, 2012 Order established Mother's monthly support obligation at $649.11, plus $90.00

     for arrears. Mother filed an appeal, which was dismissed on January 18, 2013. See Davison v.

     Askins, 771 WDA 2012.

            While her appeal was pending, Mother, on October 26, 2012, filed a Petition for

     Modification requesting suspension of the child support order "as [Mother] is currently unable to

     work." Following a conference, the conference officer issued a December 17, 2012 Summary of

     Trier of Fact indicating:

                    The defendant stated that her short term disability benefits were terminated as of
                    11/27/12 as the defendant was released from a physician to return to work under
                    restrictions. The defendant further stated that a different physician has told her
                    otherwise as she still claims to be unable to work. However, no documentation
                    was presented that states the defendant is unable to work. The plaintiff is not in
                    agreement to suspend the order.
Upon recommendation of the conference officer, a December 17, 2012 Interim Order of Court

was entered maintaining Mother's monthly child support obligation at $649.11, plus arrears.

Mother filed a Demand for Court Hearing, alleging that her income is an issue as she is unable to

work due to medical reasons. Following a de nova hearing, this court issued a February 5, 2013

Order making the December 17, 2012 Order a final order. No appeal was filed.

        One month later, on March 4, 2013, Mother filed a Petition for Modification of an

Existing Support Order requesting suspension of her support obligation as "she is currently under

doctors care and unable to work." On March 28, 2013, a Consent Order was entered suspending

Mother's support obligation, effective March 4, 2013. Mother's support obligation remained

suspended through December 31, 2013. Effective January 1, 2014, Mother was to pay $89.60 in

monthly child support.

       Mother, on March 28, 2014 filed a Petition for Modification of an Existing Support Order

requesting that the Court terminate her support obligation. Following a support conference and a

de nova hearing, a September 11, 2014 Order of Court issued maintaining Mother's monthly

support obligation at $89.60, plus $20.10 for arrears. Mother appealed the same. In its Opinion

pursuant to Pennsylvania Rule of Appellate Procedure 1925, this Court set forth its reasons for

the Order as follows:

                        At the September 11, 2014 de novo hearing, Mother asserted that the child
               support order should be terminated as she is medically unable to work as the
               result of an accident for which she is still under a physician's care. Mother did
               not, however, present any evidence in support of her position. To the contrary,
               Mother testified that she was released by her physician to return to work, with
               restrictions, in November of 2012. She further declared that she was fully active.
               Moreover, Mother testified that she was three times denied disability through her
               employer.
                        For the foregoing reasons, Mother did not meet her burden of
               demonstrating a material and substantial change in circumstances warranting the
               requested termination of support.
See November 26, 2014 Opinion. Mother's appeal was dismissed for failure to file a brief. See

May 28, 2015 Order of the Superior Court of Pennsylvania, 1690 WDA 2014.

       With Mother's appeal pending, Father, on November 24, 2014, filed a Petition for

Modification alleging that Mother had returned to work and requesting an increase in child

support. Following a support conference, a January 22, 2015 Order of Court was entered setting

Father's monthly net income at $4,674.69, Mother's monthly net income at $3,818.96 and

ordering Mother to pay the guideline monthly support amount of $610.63, plus $92.50 for

arrears. Neither party filed a Demand for Court Hearing, accordingly, the January 22, 2015

Order became a final order.

       Less than six months later, on July 17, 2015, Mother filed another Petition for

Modification of an Existing Support Order requesting a decrease in her child support obligation

or suspension of the order alleging that "she is unable to work due to injury from car accident

and short term disability has been denied." On October 22, 2015, this Court presided over a de

novo hearing on Mother's Petition. At the hearing, Mother sought reduction of her support

obligation due to injuries from a February 26, 2015 motor vehicle accident. See Opinion,

December 10, 2015; see also October 22, 2015 N.T. at 3. Following the hearing, this Court

issued an October 22, 2015 Order denying modification of Mother's support obligation and

maintaining the order at $610.63, plus arrears. Mother filed an appeal from the same, which is

pending. As set forth in the Court's December 10, 2015 Opinion, this Court denied Mother's

Petition for Modification for the following reasons:

                       Mother's testimony was her only evidence. She did not present any
               medical evidence, witness testimony or any other proof to support her self-
               proclaimed disability. Moreover, her testimony contradicts her position. First,
               but for taking periodic vacation time, Mother continued to work after the accident.
               Moreover, she "forgot" to see a doctor until her insurance company reminded her
               that she needed to visit a physician. Furthermore, she was denied disability by her
               employer.
                       Meanwhile, Eric J. Askins ("Father"), who like Mother is employed by
               GE Transportation System, testified that Mother worked from the time of her
               accident until May 11, 2015. Furthermore, Father witnessed Mother participating
               in Tae Kwon Do. Father even documented Mother's September 30, 2015 and
               October 21, 2015 participation in this activity via photographs. See Exhibits A,
               B, and C. Father observed Mother hopping, kicking and crawling at the Tae
               Kwon Do sessions.
                       Accordingly, this Court did not find any evidence to support Mother's
               claim that injuries from her February automobile accident impede her ability to
               maintain her employment. In that respect, Mother did not meet her burden of
               proof to show a material and substantial change of circumstances. As Mother has
               a job, which she simply fails to work, the Court found it appropriate to continue
               with her support obligation based upon the earnings she would actually make if
               she showed up for work.

Opinion, December 10, 2015.

       With her appeal pending, Mother, on June 30, 2016, filed a Petition for Modification of

an Existing Support Order requesting suspension of her support obligation as "she has been

notified she does not have a job to return to once released from medical leave." Following an

August 9, 2016 conference, an August 16, 2016 interim Order of Court issued denying Mother's

Petition. Mother filed a Demand for Court Hearing. Following an October 4, 2016 de novo

hearing, this Court issued its October 5, 2016 making the August 16, 2016 interim Order a final

order. Mother filed an appeal from the same. In her Concise Statement of Errors Complained of

on Appeal, Mother alleges as follows:

              1. That the Court erred in determining that [Mother's] claim was without merit.
              2. That the Court erred in suspending the support order due to the circumstances
                 that was given of being permanently laid off and under physician's care.
              3. That the Court erred of the base holding of [Mother] by law at a past
                 capability of wage earning from prior orders dated from 9/02/15 and De Novo
                 hearing held on 10/22/15 while being under physician's care and being
                 permanently laid off from employer.
              4. That the Court erred in affirming a decision based of biasness granted from
                 Conference officer's belief differences and non-correlating past and present
                 experiences.
    October 22, 2015 support order and all issues related to the alleged disabling effect of the motor

    vehicle accident are without merit.

            Mother further testified that a January of 2016 accident aggravated her neck and back

    injuries. Mother is not, however, credible. Since institution of the support action, Mother has

    repeatedly petitioned to terminate or suspend her support obligation on the basis of inability to

    work and, repeatedly, her own evidence has contradicted her position. In 2012, Mother

    petitioned for suspension of her support obligation alleging inability to work. The Court denied

    her Petition when the evidence showed that Mother, who had been denied disability benefits, was

    released from her physician to return to work. In 2014, Mother requested that the Court

    terminate her support obligation as she was medically unable to work as the result of an accident.

 The evidence revealed, however, that Mother was released by her physician to return to work,

 she was fully active and her employer denied her disability claims. See November 26, 2014

 Opinion. In 2015, Mother requested that her support obligation be suspended as she was unable

to work due to injuries from another accident. The evidence showed, however, that Mother

continued work for three months after the allegedly disabling accident, forgot to see her doctor

until that time, and actively engaged in Tae Kwon Do during the time that she alleged she was

unable to work. See December 10, 2015 Opinion. With regard to Mother's present allegation of

a fourth debilitating accident, she presented a Physician Verification Form, dated July 29, 2016,

in support of her position that she is unable to work. 1 See Defendant Exhibit B. As with the

accident in 2015, it is clear that, once again, Mother did not seek treatment until two months after


I
  Mother also presented an October 3, 2016 Physician Verification Form to which Father properly objected on the
ground that he did not have advance notice of the same. Exhibit C, which includes an October 3, 2016 Physician
Verification Form is dated one day before the de novo hearing and, as such, was not properly before the Court for
consideration. See Pa.R.C.P. 1910.29(b). With regard to the July 29, 2016 Physician Verification Form, it is not
clear whether the proper procedures were followed for introduction of the same. Father did not, however, raise an
objection either at the hearing or in writing prior thereto.
 the alleged accident. Moreover, the statements written on the Form reflect Mother's perception,

 rather than the results of an independent evaluation. Specifically, in the section discussing

Mother's ability to earn income, there is a handwritten statement indicating: "Pt stated medical

 condition started May 11, 2015 effecting earning potential." As further detailed above, Mother

 is not credible. In this regard, the Court did not give the Physician Verification Form any

weight.

          Accordingly, with regard to Mother's physical ability to work, there is no change in

circumstances.

          Mother, however, further asserts that even if she were able to work that she no longer has

a job with GE. In support of her position, she presented two separate letters, dated August 22,

2016 and October 3, 2016, both signed by Beth Robinson on GE Transportation letterhead and

both providing:

                  As of today, due to a permanent lack of work, Lisa Davison does not have a job
                  placement opportunity within the Lack of Work Procedure. If she were to be
                  released to return to work, she would be placed on a recall list for five years from
                  her last day of work.


See Exhibits Band C. Mother presented no evidence to further explain the details of the letters,

the "Lack of Work Procedure," or whether her absence from work for over a year had anything

to do with her employment status. Regardless, under the facts specific to this case, such a letter

does not demonstrate a change in circumstances. Due to her self-proclaimed inability to work,

Mother was not working at the time of entry of the last support order. Had Mother been

working, as this court has repeatedly determined she was able to do, a "lack of work"

determination from her employer may be relevant to consider whether Mother experienced an

involuntary reduction of income. As Mother has not worked since May of2015 due to
  ,.


 unsupported claims of inability to work, however, the Court does not view the GE letter as a

 change in circumstances. Furthermore, Mother offered no evidence of any effort to mitigate her

lost income. She merely testified that she would either have to go back to school or move out of

state in order to make child support payments at the assessed earning capability.

        Accordingly, Mother did not meet her burden of demonstrating the occurrence of a

material and substantial change in circumstances and the October 5, 2016 Order should be

affirmed,



                                             BY THE COURT:




cc:    Eric J. Askins, 6851 Ponderosa Drive, Erie, PA 16509
       Lisa A. Davison, 1044 South Drive, Waterford, PA 16441
       Support Office
