Strom, C. v. Strom, M. (memorandum)

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J. A25014/13 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COLLEEN M. STROM, Appellant v. MICHAEL C. STROM : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1947 WDA 2012 Appeal from the Order Dated September 11, 2012, in the Court of Common Pleas of Allegheny County Civil Division at No. FD-09-007088-009 BEFORE: FORD ELLIOTT, P.J.E., ALLEN AND COLVILLE,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: December 5, 2013 This is an appeal from an order entered in the Court of Common Pleas of Allegheny County brought by appellant, Colleen M. Strom, acting pro se, regarding child support. We affirm. We adopt the procedural history of this matter as set out by the trial court: Appellee Husband, Michael C. Strom, filed a Complaint in Divorce in the Court of Common Pleas of Allegheny County, Pennsylvania, on January 15, 2009. Appellant Wife responded to the Complaint by filing an Answer and Petition to Raise Economic Claims on or about May 14, 2009. By Order of Court dated October 7, 2009, Appellee Husband was ordered to pay the sum of $1,336.00 per month to Appellant Wife as unallocated alimony pendent lite and support for the parties three (3) children. A Master s Hearing regarding the parties claims for equitable distribution and related economic claims was held before Master Peggy Ferber on March 2, * Retired Senior Judge assigned to the Superior Court. J. A25014/13 2011. On or about September 12, 2011, Master Ferber recommended, in relevant part, that: current APL/Child support Order remain in effect until the divorce is granted and the equitable distribution has been settled. Once that is finalized, the Master recommends that Wife receive alimony in the amount of $500/mo. This amount will need to be factored into Wife s net income calculation of the revised child support obligation in accord with the entry of the divorce and the reduction in Husband s net income (emphasis added). The Master finds that $500 is reasonable given Wife s medical and prescription expenses. If it is discovered that Wife s medications are covered by Medicaid after all, Husband may petition the Court for a modification of the alimony award. In addition, any alimony will terminate in the event of Wife s remarriage or cohabitation, or Husband s death, disability or retirement (assumed to be at age 66). The Master also recommends that Husband be awarded the three children for the federal dependency exemption each year as the child support she will receive is non-taxable to her but is still taxable to Husband. Neither party filed Exceptions to the Master s Report and Recommendation. A Decree in Divorce was granted on October 4, 2011. On or about October 13, 2011, Appellee Husband filed a Petition for Modification of the Existing Support Order in accordance with the Master s prior directive. A conference/hearing regarding the petition for modification was subsequently heard on January 4, 2012. After the conclusion of the January 4, 2012 hearing, Hearing -2- J. A25014/13 Officer Joseph Kulik recommended that Appellee be ordered to pay the sum of seven hundred, sixty two dollars ($762.00) a month for the support of the parties three children; in addition to the five hundred dollars ($500.00) per month alimony award to Appellant. Appellant filed Exceptions to the Hearing Officer s findings and recommendations on or about January 24, 2012. By Order of Court dated September 11, 2012, the undersigned denied three of the Appellant s four exceptions (regarding Appellant s medical costs, the affect of the medical costs as a basis to deviate from the guideline figures for child support, and the alleged unfairness of the application of Pa.R.C.P. 1910.16-2 regarding derivative social security benefits); granted the Appellant s final exception regarding her claim that the hearing officer had erred by not properly addressing the Federal Dependency Tax exemptions that had been awarded to Appellee Husband for the year 2011 and remanded the matter back to Hearing Officer Kulik for additional proceedings to determine if the Child Tax Credit had been properly considered in the calculation of Appellee Husband s net income. By Order of Court dated September 20, 2012, the remand hearing was scheduled to be heard before Hearing Officer Kulik on October 17, 2012. Prior to the scheduled date of the remand hearing, Appellant filed [on October 11, 2012] a Notice of Appeal to the Superior Court of Pennsylvania [docketed at No. 1605 WDA 2012] from the order of court that I issued on September 11, 2012. At the conclusion of the remand hearing on October 17, 2012,[1] Hearing 1 The order that scheduled the October 17, 2012 hearing specifically stated: Pursuant to the Order entered 9/11/12 by the Hon. Alexander Bicket, matter is scheduled for direct hearing before HO Kulik to allow the parties to submit evidence of their respective incomes, for the 2011 year, including specifically providing copies of their 2011 tax returns. Due to the delay from entry of the original Rec, to the entry of the Order -3- J. A25014/13 Officer Kulik recommended that no change be made to the amount of support ($762/m) that he previously recommended be paid to Appellant on January 4, 2012. Court records indicate that neither party filed exceptions to the Hearing Officer s Recommendation. However, Appellant subsequently filed a Petition for Modification of the Existing Support Order wherein she avers that Appellee Husband has had an increase in his income. Trial court opinion, 12/10/12 at 1-3 (emphasis in original) at discontinued Superior Court docket No. 1605 WDA 2012. On October 25, 2012, Judge Bicket entered an order directing appellant to file a concise statement of errors complained of on appeal within 21 days. (Document #65.) On November 1, 2012, appellant responded by filing a 5-page statement containing 19 issues. (Document #66.) In an opinion filed on December 10, 2012, Judge Bicket addressed the issues contained in appellant s statement, but opined that the appeal should be dismissed as interlocutory because the September 11, 2012 order was not a final order. (See trial court opinion, 12/10/12 at 3.) That same day, appellant filed a praecipe for discontinuance, and the Superior Court discontinued the case on December 12, 2012. (Document #71.) addressing exceptions, the financial information relied upon at the 1/4/12 hearing is not available to the Court. The hearing is specifically limited to the introduction of the 2011 income and related financial information. Direct hearing shall be held on October 17, 2012, at 9:00 a.m. Document #94 (emphasis added). -4- J. A25014/13 Meanwhile, the following order dated November 7, 2012, and filed on November 13, 2012, was entered by the Honorable Katheryn Hens Greco: AND NOW to wit, this 11-7-12 it is hereby Ordered that: HEARING HEARD ON 10/17/12, BOTH PARTIES APPEARED Matter before HO on Deft s petition for mod of current support obligation, for Pltf and 3children [sic], pet filed 10/13/11. After hearing, and review of file and record, in that initial calculation, done in January 2012 resulted in GL calc of $760, and current calc results in GL calc of $781, this being based on Deft s income of $3382 today, as opposed to $3256 in January of 2012, current APA to remain. While current financial obligation is confirmed, this does not preclude filing of modification petition since Pltf alleges a change in circumstances. Recommendation mailed to both parties on 10/17/12. Document #98 (emphasis added). On December 10, 2012, appellant, acting pro se, filed the following: NOTICE OF APPEAL Notice is hereby given that Colleen M. Strom, plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the order dated September 11, 2012 and entered in this matter on the day of September 17[sic], 2012. This order has been entered in the docket as final on November 9, 2012, as evidenced by the attached copies of the docket entries. Transcript ordered. Docket #70 (emphasis added). -5- J. A25014/13 The above notice of appeal was docketed at No. 1947 WDA 2012 on December 13, 2012. The docket entries attached by appellant consisted of two pages obtained from the PA Child Support Program website and seven pages from the Allegheny Court of Common Pleas Docket website. The PA Child Support Program website contains a docket entry entitled Interim order now final - Hearing with a date of 11/9/12. The Allegheny County website contains no such entry. On December 20, 2012, Judge Bicket entered an order directing appellant to file a concise statement of errors complained of on appeal within 21 days. (Document #73.) On December 28, 2012, appellant responded by filing the same 5-page statement containing 19 issues that she previously filed. On January 25, 2013, Judge Bicket filed an opinion in which he opined that appellant s current appeal should be dismissed for numerous reasons; such as, it was not timely filed. A notice of appeal must be filed within 30 days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903; In re Greist, 636 A.2d 193, 195 (Pa.Super. 1994) ( This Court has no jurisdiction to excuse a failure to file a timely notice. ). Since a question of timeliness implicates the jurisdiction of our court, we may raise it sua sponte. See Commonwealth v. Dreves, 839 A.2d 1122, 1126 n.4 (Pa.Super. 2003) (en banc), citing Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa.Super. 2003) (stating that the question of appealability implicates the -6- J. A25014/13 jurisdiction of this court and so may be raised by this court sua sponte). It appears that appellant s notice of appeal following the November 7, 2012 order is timely as the order was not filed until November 13, 2012; appellant subsequently filed her notice of appeal on December 10, 2012. Appellant raises the following issues: 1. Whether Appellant should have been allowed to submit evidence pursuant to Pa. R.C.P. 1910.12(d) as it pertains to her high medical cost and its added hardship to her being able to support her children financially. 2. Whether the court should have considered Appellant s award of alimony, with its intended purpose being to help pay her medical costs, being counted in her income to be used toward the support of her children as placing an undue hardship on Mother to either go without medical care or use the funds as intended and deprive her children of support, thereby warranting a deviation according to Pa. R.C.P. 1910.16.5. 3. Whether the honorable court erred in finding that Appellant was attempting to re-litigate the issue of her high medical costs and its relationship to child support when child support was never litigated at the parties Equitable Distribution trial. 4. Whether the honorable court erred in finding that Appellant was attempting to re-litigate the unfairness of Pa. R.C.P. 1910.16-2(b)(2) and its new Amendment when the Amendment was not announced until September 10, 2011, taking effect on September 30, 2011, well after the parties Equitable Distribution trial in August of 2011. -7- J. A25014/13 5. Whether a deviation should have been ordered according to Rule 1910.16-5 in light of Father s low child support order due to Pa. R.C.P. 1910.16-2(b)( 2) and its treatment of social security derivative payments, in combination with Appellant s high medical costs. 6. Whether the new Amendment to Pa. R.C.P. 1910.16-2(b)( 2) from September 30, 2011 is unconstitutional and in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, Section 26 of the Pennsylvania Constitution as it treats disabled custodial parents and their children differently than all other parents and children, including non-custodial disabled parents, depriving custodial disabled parents and their children of the same rights and financial support considerations as in any other case. 7. Whether the Amendment to Pa. R.C.P. 1910.16-2(b)(2) violates 23 Pa. C.S.A. § 4322 by failing to treat similarly situated parents and children in the same manner when it counts a disabled and other social security recipient parent s income differently than all other parents in the Commonwealth depending on if they are custodial or not. 8. Whether Pa. R.C.P. 1910.16-2(b)(2) violates Social Security regulations §404.360 and 42 U.S.C. § 402 by directing the children s derivative payments, defined as payments made to children of disabled parents when the child(ren) depend on the disabled parent for support, to be largely credited to the non-disabled non-custodial parent to satisfy part of their child support obligation. 9. Whether Pa. R.C.P. 1910.16-2(b)(2) violates Social Security regulations Sec. 459. [42 U.S.C. 659](a), and (i)(2) which only allows for social security benefits to be subject -8- J. A25014/13 to legal process in the case of the obligor and does not authorize benefits paid to the payee to be subject to legal process and applied to the obligor s child support obligation. 10. Whether the court should have ordered that the social security derivative payments to the children which are made to Appellant as the children s Representative Payee who are in her primary care, based on her past work history and current disability, be fully credited to her instead of giving Father the overwhelming majority of this credit thereby reducing his child support obligation. 11. Whether, while granting Appellant s exception that the hearing officer did not address the federal dependency tax exemptions being used by Father retroactively for the year 2011 despite paying unallocated alimony/child support for the entire year, the court should have ordered a recalculation of Father s income and award child support under Pa. R.C.P. 1910.16-2(b)(2) due to the huge lump sum windfall Father gained by removing $16,032.00 from his income that year, plus using all 3 dependency tax exemptions and the Child Tax Credit instead of only ordering that the hearing officer determine if he had included the Child Tax Credit in Father s child support order for future years. 12. Whether the court should have further ordered that Mother be reimbursed for the tax she had to pay for the year 2011 for an entire year of unallocated support that was fully taxable to her, particularly in light of Father s tremendous financial windfall he enjoyed by claiming the exemptions. Appellant s brief at 3-5. Our standard of review is well settled: -9- J. A25014/13 In our appellate review of child support matters, we use an abuse of discretion standard. A support order will not be disturbed on appeal unless the trial court failed to consider properly the requirements of the Rules of Civil Procedure Governing Actions for Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying these Rules. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . discretion is abused. This is a limited role and, absent a clear abuse of discretion, the appellate court will defer to the order of the trial court. A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence. Christianson v. Ely, 575 Pa. 647, 654-655, 838 A.2d 630, 634 (2003) (citations and quotation marks omitted). Our review of this matter indicates Judge Bicket addressed Mother s issues in his opinion filed on December 10, 2012 at Superior Court docket number 1605 WDA 2012, and we adopt it as our own.2 As we discern no abuse of discretion, we affirm. Christianson, supra. Affirmed. Judgment Entered. 2 Appellant s issues number 11 and 12 are waived. Appellant s pro se status does not excuse her failure to comply with the rules of appellate procedure; specifically, Pa.R.A.P. 302(a). As such, appellant s failure to raise the federal dependency tax exemptions award for 2011 before the trial court following the November 7, 2012 order is waived. See Jahanshahi v. Centura Development Co., Inc., 816 A.2d 1179, 1189 (Pa.Super. 2003) (stating it is axiomatic that claims that were not raised in the trial court may not be raised for the first time on appeal). - 10 - J. A25014/13 Joseph D. Seletyn, Esq. Prothonotary Date: 12/5/2013 - 11 -

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