Opinion
J-A28003-17 No. 1008 EDA 2017
01-11-2018
D.C.S., F/K/A, D.C.S.-R. Appellee v. P.R. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated February 27, 2017
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 462-DR-2011 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, P.R. ("Father"), appeals pro se from the order entered in the Wayne County Court of Common Pleas, which granted in part Appellee's, D.C.S., f/k/a, D.C.S.-R. ("Mother"), motion for sanctions, sustained Mother's objections to the notice of intent to serve subpoenas, denied Father's petition for special order for discovery, and dismissed a support proceeding. We affirm.
The relevant facts and procedural history of this case are as follows. On September 7, 2011, Mother filed a complaint against Father for child and spousal support. After a support conference on November 1, 2011, the support master entered an interim support order on November 2, 2011. On November 28, 2011, Father filed a de novo appeal and objections to the support order. After a de novo hearing on February 28, 2012, the court upheld the support order. On August 10, 2015, Mother filed a petition to modify the support order. After a modification conference on September 21, 2015, the support master modified the support order on September 22, 2015.
Father filed a pro se petition to modify support on June 27, 2016. Following a modification conference on July 27, 2016, the support master dismissed Father's modification petition on July 28, 2016. On August 15, 2016, Father filed a pro se request for a de novo hearing; Mother did not file objections. After a de novo hearing on October 4, 2016, the court upheld the denial of Father's June 27, 2016 modification petition.
On January 9, 2017, Father filed a second pro se petition to modify support and a notice of intent to serve subpoenas. Mother filed a motion for sanctions on January 18, 2017, and objections to Father's notice of intent to serve subpoenas. On January 27, 2017, Father filed pro se objections to Mother's January 18, 2017 motion and objections, and Father also filed a petition for a special order for discovery. The court held a hearing on February 1, 2017. On February 27, 2017, the court granted in part Mother's motion for sanctions, sustained Mother's objections to the notice of intent to serve subpoenas, denied Father's petition for special order for discovery, and dismissed a support proceeding that was continued on February 1, 2017, until further order of the court. On March 23, 2017, Father timely filed a pro se notice of appeal along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Father styled his concise statement of errors as a Rule 1925(a)(2) statement; however, this appeal is not a children's fast track case.
Father raises the following issues for our review:
DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN GRANTING [MOTHER]'S MOTION FOR SANCTIONS PURSUANT TO PA.R.C.P. 1023.2 WHEN THE EVIDENCE AND THE RECORD CLEARLY SHOWS THAT [FATHER] FILED AND SERVED ALL OF THE PLEADINGS IN GOOD FAITH, AND WHERE [FATHER]'S ACTIONS IN FILING THE PETITION FOR MODIFICATION OF SUPPORT OR IN SERVING THE NOTICE OF INTENT TO SERVE SUBPOENAS WERE NOT DILATORY, OBDURATE OR VEXATIOUS IN NATURE?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN GRANTING [MOTHER]'S MOTION FOR SANCTIONS PURSUANT TO PA.R.C.P. 1023.2 WHEN IT WAS VERY WELL AWARE THAT [MOTHER] DID NOT GIVE WRITTEN NOTICE OR DEMAND TO [FATHER], FORMAL OR INFORMAL, TO APPROPRIATELY CORRECT OR WITHDRAW THE CHALLENGED PAPER OR REPORTED DEFICIENT, NOR DID [MOTHER] WAIT THE REQUIRED TWENTY-EIGHT (28) DAY GRACE PERIOD AFTER SERVICE OF DEMAND, HAD SHE GIVEN THE REQUIRED NOTICE [PRIOR TO] FILING THE MOTION FOR SANCTIONS, AS CALLED FOR IN PA.R.C.P. 1023.1 AND 1023.2; AND WHEN ALL [MOTHER] HAD TO DO WAS FILE A MOTION FOR CONTINUANCE OF THE FEBRUARY 2, 2017 SUPPORT CONFERENCE WHILE GIVING [FATHER] THE REQUIRED 28[-]DAY NOTICE DEMAND PRIOR TO FILING THE WITHIN MOTION FOR SANCTIONS?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN SUSTAINING [MOTHER]'S OBJECTIONS TO NOTICE OF INTENT TO SERVE SUBPOENAS AND/OR IN DENYING [FATHER]'S PETITION FOR SPECIAL ORDER FOR DISCOVERY IN A SUPPORT ACTION PURSUANT TO PA.R.C.P. 1910.9(A), WHEN THESE PLEADINGS WERE
SERVED IN GOOD FAITH, IN ACCORDANCE WITH THE APPLICABLE RULES, SO AS TO SECURE NECESSARY DOCUMENTS FROM TWO (2) GOVERNMENTAL ENTITIES AND A PRIVATE PHYSICIAN TO FURTHER SUPPORT [FATHER]'S CONTENTION THAT THERE IS A CHANGE IN CIRCUMSTANCES, IN THAT [MOTHER] HAS NO MEDICAL RESTRICTIONS FOR EMPLOYMENT, WHICH WOULD HAVE RESULTED IN [MOTHER] BEING IMPUTED INCOME, AND THUS A CHANGE IN INCOME OF THE PARTIES, AS SUPPORTED BY RULE 1023.1(C)(3)?(Father's Brief at 3-6).
DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN DISMISSING THE SUPPORT PROCEEDING THAT WAS CONTINUED ON FEBRUARY 1, 2017 UNTIL FURTHER ORDER OF THE COURT, WHEN THIS WAS [FATHER]'S SECOND PETITION FOR MODIFICATION FILED IN THE SIX (6) YEAR HISTORY OF THIS CASE, AND WHERE [MOTHER] HAS NEVER PROVIDED [FATHER] WITH A PHYSICIAN'S AFFIDAVIT OR VERIFICATION FORM AS TO HER ALLEGED EMPLOYMENT RESTRICTIONS, WHICH SHE FALSELY CLAIMED SHE HAD IN HER POSSESSION AND WHICH SHE HAD FILED WITH THE COURT IN PRIOR SUPPORT PROCEEDINGS THAT RESULTED IN DE NOVO HEARINGS BEFORE THE COURT?
Preliminarily, we observe "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Further, our standard of review of issues concerning sanctions and discovery orders is one of abuse of discretion by the trial court. ACE American Ins. Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935 (Pa.Super. 2007), affirmed, 601 Pa. 95, 971 A.2d 1121 (2009); Crum v. Bridgestone/Firestone North American Tire , LLC , 907 A.2d 578 (Pa.Super. 2006). "An abuse of discretion is not lightly found, as it requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. [This Court] will not usurp the trial court's factfinding function." Holz v. Holz , 850 A.2d 751, 757 (Pa.Super. 2004), appeal denied, 582 Pa. 700, 871 A.2d 192 (2005) (internal citations omitted).
Our standard review of child support orders is well settled:
When evaluating a support order, this Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused. In addition, we note that the duty to support one's child is absolute, and the purpose of child support is to promote the child's best interests.Krebs v. Krebs , 944 A.2d 768, 772 (Pa.Super. 2008) (quoting Mencer v . Ruch , 928 A.2d 294, 297 (Pa.Super. 2007)).
After a thorough review of the record, the briefs of the parties, the applicable law, and the reasoned opinion of the Honorable Raymond L. Hamill, we conclude Father's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed May 18, 2017, at 1-5) (finding: (1) Father did not aver material and substantial change in circumstances in his January 9, 2017 petition for modification; instead, he challenged testimony and evidence from October 4, 2016 de novo hearing; Father repeatedly failed to abide by Rules of Procedure and needlessly increased cost of litigation, which warranted entry of sanction order; (2) Father failed to argue Mother did not serve him with written notice and demand of her motion for sanctions; Father raised this argument for first time in his Rule 1925(b) statement; therefore, Father waived this issue; (3) Father requested inappropriate discovery; Father sought information to show material and substantial change in circumstances; Father, however, failed to establish how sought-after information would show change in circumstances; Father also claims Mother failed and/or refused to provide Physician's Affidavit and Verification Form, but Mother did not introduce this form into evidence, so Father was not entitled to copy; Father's purpose for obtaining the Physician's Affidavit and Verification Form was suspect, because he originally sought this Form to use against Mother in separate custody action; (4) court determined after February 1, 2017 argument that Father's petition for modification of existing support order failed to aver material and substantial change in circumstances; therefore, court properly dismissed support proceeding on Father's petition). Accordingly, we affirm on the basis of the trial court opinion.
Mother's open application for relief in the form of a motion for counsel fees is denied without prejudice to Mother's right to seek reasonable attorneys' fees in the trial court along with other costs associated with this appeal. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/11/18
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