Barth, K. v. Zaborowski, F. (memorandum)
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J-S32013-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 KIMBERLY A. BARTH (FORMERLY KNOWN AS KIMBERLY A. ZABOROWSKI) IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. FREDERICK J. ZABOROWSKI Appellant No. 972 WDA 2013 Appeal from the Order May 10, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): Fd 10-006593 BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J. MEMORANDUM BY PANELLA, J. FILED JULY 02, 2014 entered on May 10, 2013, by the Honorable Paul E. Cozza, Court of Common Pleas of Allegheny County, which denied his motion for modification of child support. After careful review, we affirm. three children, ages 11, 15, and 18. The couple ended the marriage by divorce and entered into a marriag September 1, 2010. The MSA stated that Father would pay $1,900.00 per month in child support to Mother until the youngest child graduated from college in 2024. See MSA, 9/1/10, at ¶ 11. Furthermore, the MSA contained J-S32013-14 a pro Id. On May 29, 2012, Mother filed petition to enforce the MSA due to See Petition to Enforce Marriage Settlement Agreement, 5/29/12. Father paid the full $1,900.00 per month from July 2011 to November 2011; however, he only paid $1,500.00 per month from December 2011 to March 2012, and only $500.00 in April of 2012. See id., at ¶¶ 5-7. Mother served Father with a request for production of documents in order to obtain proof of income; however, Father served the documents late. Additionally, Father failed to appear for a deposition. Mother then filed a motion for sanctions, which Father did not appear to defend. Upon dated November 21, 2012. See Order, 11/21/12. The order stated that ments and the request to appear for a deposition would preclude him from presenting any evidence at the petition to enforce hearing. See id. The hearing for the petition to enforce was held on December 11, 2012, before a Special Master. See N.T., Hearing, 12/11/12, at 2. At the hearing, Father did not enter any evidence of a substantial change in circumstances. See id., at 26-43. Father tried to present a tax return; -2- J-S32013-14 however, the Master denied the request as per the November 21 order. See id., at 31-36. at the creation of the MSA, and concluded Father was bound to that contract. See id., at 38, 41-50. Additionally, the Master ordered Father to pay counsel fees and to make payments of his arrears in the amount of $200.00 per month until paid off completely. See id., at 49-50. Father then days after the hearing, Father filed a motion to modify child support. 2012 hearing. See findings that Father demonstrated no substantial change in circumstances, on to modify support. See id. The trial court found no need for an his support obligation, reasoning that Father completely failed to enter any evidence of a change in circumstances in the hearing before the Master and that Father has not alleged any change in circumstances since the last hearing. See id. On appeal, Father claims the trial court abused its discretion when it denied his motion for modification of support without an evidentiary hearing. Our standard of review for modification of child support is well settled. An award of support may be modified via petition, at any time, provided the -3- J-S32013-14 Plunkard v. McConnell, 962 A.2d 1227, 1229 (Pa. Super. 2008); see also 23 Pa.C.S.A. § 4352(a). If the circumstances, the order may be increased or decreased depending upon the respe determination of whether such change does indeed exist is within the sole discretion of the trial court. See Plunkard, 962 A.2d at 1229. An abuse of es or misapplies the law, or the judgment exercised is shown by the record to be either manifestly Sirio v. Sirio, 951 A.2d 1188, 1192-93 (Pa. Super. 2008). Although Father would ordinarily be entitled to an evidentiary hearing so that he may meet his burden of proof, see Commonwealth ex rel. McClelland v. McClelland, 450 A.2d 58, 61 (Pa. Super. 1982), his conduct has shown that, under the particular circumstances of this case, the trial court did not abuse its discretion in denying him one. Father did not enter any evidence of a substantial change in circumstances in the hearing before the Master. The trial court noted that utter failure to deposition. See Trial Court Opinion, 8/13/13, at 5. Against this background -4- J-S32013-14 in this matte did not allege that there had been any substantial change between the date Id., at 5-6. We find this explanation eminently reasonable. payments, was an obvious attempt to circumvent the effects of his former recalcitrant behavior, which led to the loss of his right to present evidence. The trial court did not abuse its discretion in refusing to reward such conduct by holding an additional evidentiary hearing.1 Order affirmed. Jurisdiction relinquished. Donohue, J., concurs in the result. ____________________________________________ 1 Obviously, the trial court cannot foreclose Father in perpetuity from filing a motion to modify his child support obligation based on a change of circumstances. We simply hold that under the facts of this case and under its unique procedural posture, the trial court did not abuse its discretion. -5- J-S32013-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2014 -6-
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