Opinion
J-A32035-13 No. 970 MDA 2013
04-29-2014
ANN P. RINE, Appellant v. KEITH C. RINE, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order May 12, 2013
in the Court of Common Pleas of Montour County
Domestic Relations at No.: DR-00080-2012
BEFORE: DONOHUE, J., OTT, J., and PLATT, J. MEMORANDUM BY PLATT, J.
Retired Senior Judge assigned to the Superior Court.
Appellant, Ann P. Rine (Mother), appeals from the Order of May 12, 2013, which lowered the child support obligation of Keith C. Rine (Father) to $103.97 per month and directed that Mother pay Father, after an offset, $438.03 in spousal support. For the reasons discussed below, we affirm.
The order is dated May 3, 2013 but was not filed until May 12, 2013.
We take the underlying facts and procedural history in this matter from the trial court's May 12, 2013 opinion. On October 2, 2012, Father filed a claim against Mother for spousal support and, on October 24, 2012, for alimony pendente lite (APL) as part of a divorce action filed to case number 335-CV-2011. Mother subsequently sought child support for the parties' adult disabled son (Son), filed to case number DR-0080-2012. Son, who primarily resides with Mother, works twelve hours per week as a dishwasher, and has a net income of $305.00 per month. He also receives Supplemental Security Income (SSI) of $698.00 per month; Mother is his representative payee.
( See Trial Court Opinion, 5/12/13, at 1-5).
The parties' 19-year-old son suffers from autism.
A master's hearing on the issues of spousal support, APL, and child support took place on November 13, 2012. On January 18, 2013, the master submitted a recommendation, resulting in an interim order. The master determined that Mother's net income per month was $4,623.17; Father's net income per month was $3,238.53. Neither party disputes these figures. The master did not award APL and determined that Father's obligation to pay child support and Mother's obligation to pay spousal support offset each other, with neither party owing the other any monies. Father filed exceptions. However, Father made an apparent procedural error, filing the exceptions only under the divorce caption and not under the child support caption. Mother did not file exceptions. The trial court, sua sponte, dealt with the exceptions as though Father had filed it to both captions.
A hearing took place on November 13, 2012. By Order of May 12, 2013, the trial court granted the exceptions in part, determining that while Mother's spousal support obligation, which she had not challenged, remained at $542.00 per month, Father only owed $103.97 per month in child support. ( See Order, 5/12/13, at 10). Thus, after the offset, Mother owed Father the sum of $438.03 in spousal support. ( See id. ).
Mother filed the instant timely appeal, challenging the trial court's treatment of Son's SSI benefits. On June 17, 2013, the trial court ordered Mother to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); the trial court docketed the order to both the divorce caption and the support caption. See Pa.R.A.P. 1925(b); ( see Order, 6/17/13, at unnumbered p. 1). The certified record ends with this order.
On appeal, Appellant raises the following issues for our review:
I. Whether the trial court's inclusion of SSI as income available for support in direct violation of Pa.R.C.P. 1910.16-2(b)(1) was in error and amounts to an abuse of discretion?(Mother's Brief, at 4).
II. Whether the trial court erred and abused its discretion by applying an overly large deviation downwards from the guideline amount of child support?
Mother appeals from the award of child support. Our standard of review is as follows:
[w]hen evaluating a support order, this Court may only reverse the trial court's determination where the order cannot beBrickus v. Dent, 5 A.3d 1281, 1284 (Pa. Super. 2010) (citations omitted).
sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the 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.
Prior to analyzing the issues in Mother's brief, this Court must determine whether she has properly preserved any issues for our review. See Commonwealth v. Wholaver, 903 A.2d 1178, 1183-84 (Pa. 2006), cert. denied, 549 U.S. 1171 (2007) (holding that appellate courts may sua sponte determine whether issues have been properly preserved on appeal). Pennsylvania Rule of Appellate Procedure 1925 provides in pertinent part:
(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.—If the judge entering the order giving rise to the notice of appeal ("judge") desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ("Statement").Pa.R.A.P. 1925(b). This Court has long held that "[w]henever a trial court orders an appellant to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b), the appellant must comply in a timely manner." Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super. 2011) (citations omitted) (emphasis in original). The failure to file a concise statement results in the waiver of all issues on appeal and requires dismissal of the appeal. See id. at 940-41.
(1) Filing and service.—Appellant shall file of record the Statement and concurrently shall serve the judge. Filing of record and service on the judge shall be in person or by mail as provided in Pa.R.A.P. 121(a) and shall be complete on mailing if appellant obtains a United States Postal Service Form 3817, Certificate of Mailing, or other similar United States Postal Service form from which the date of deposit can be verified, in compliance with the requirements set forth in Pa.R.A.P. 1112(c). Service on parties shall be concurrent with filing and shall be by any means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.—The judge shall allow the appellant at least 21 days from the date of the order's entry on the docket for the filing and service of the Statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc.
(3) Contents of order. —The judge's order directing the filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the judge's order within which the appellant must file and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the Statement timely filed and served pursuant to subdivision (b) shall be deemed waived.
"Rule 1925(b) applies to both criminal and civil cases, and [waiver] is equally applicable in civil cases." Forest Highlands Community Ass'n v. Hammer, 879 A.2d 223, 226 n. 2 (Pa. Super. 2005) (citation omitted).
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In a recent en banc decision, this Court reiterated that we have no discretion to excuse the failure to comply with Pa.R.A.P. 1925(b), stating that the Pennsylvania "Supreme Court does not countenance anything less than stringent application of waiver pursuant to Rule 1925(b)" and that such waiver is "automatic." Greater Erie Indust. Dev. Corp. v. Presque Isle Downs, Inc., --- A.3d ---, 2014 WL 930822, at *2 (Pa. Super. March 11, 2014) (en banc).
In the instant matter, by order dated June 7, 2013, and filed on June 17, 2013, the trial court properly directed that Mother "shall produce a concise statement of the errors complained of on appeal . . . within 30 days after entry of the present Order and [Mother] shall file said [s]tatement of record and shall serve the [s]tatement within said time period." (Order, 6/17/13, at unnumbered pages 1-2). The order also stated, "[a]ny issue not properly included in the [s]tatement, timely filed and served pursuant to Pa.R.A.P. 1925(b) shall be deemed waived." ( Id. at unnumbered page 2). As noted above, the docket and the certified record ended with this order.
In Mother's brief, as required by Pa.R.A.P. 2111(a)(11), Mother included a copy of a Pa.R.A.P. 1925(b) statement. ( See Mother's Brief, at 15). However, that Rule 1925(b) statement does not include a date stamp or file mark. Further, this Court has continually stated that copying material and attaching it to the brief does not make it a part of the certified record. See First Union Nat. Bank v. F.A. Realty Investors Corp., 812 A.2d 719, 724 n.3 (Pa. Super. 2002); In re M.T., 607 A.2d 271, 275 (Pa. Super. 1992). Nevertheless, in an overabundance of caution, this Court made inquiry to the trial court. We did so because: (1) the docket and certified record forwarded by the trial court appeared incomplete; (2) Mother did include a Rule 1925(b) statement in her brief (thus demonstrating her knowledge that the trial court had ordered one); and (3) the confusion regarding captioning in the trial court. We requested that the trial court search the record and forward to us updated dockets and any Rule 1925(b) statement and Rule 1925(a) opinion filed to either the support case, number DR-00080-2012, or the divorce case, number 335-CV-2011.
The trial court was unable to locate any Rule 1925(b) statement filed in either case and there is none listed on either docket. No Rule 1925(a) opinion appears on either docket. However, the trial court did certify and forward to this Court an unfiled Rule 1925(a) opinion issued in the support case, number DR-00080-2012. That opinion, dated July 5, 2013, does not reference any Rule 1925(b) statement and consists of a single sentence incorporating by reference the trial court's opinion and order dated May 3, 2013. ( See Pa.R.A.P. 1925(a) opinion, 7/05/13, at unnumbered page 1). Thus, it does not appear that Mother, despite her evident awareness of the order directing that she file a Rule 1925(b) statement, ever filed one.
The record in this matter demonstrates that the trial court order conformed with Pa.R.A.P. 1925(b), that Mother prepared a 1925(b) statement and attached it to her brief, but that she did not file the Rule 1925(b) statement. Because of Mother's failure to comply with the trial court's Rule 1925 order, we find that all of her issues on appeal are waived. See Greater Erie, supra at *2; Feingold, supra at 940-41; see also Mudge v. Mudge, 6 A.3d 1031, 1032 (Pa. Super. 2010) (dismissing appeal and finding all claims waived based on appellant's failure to file a Rule 1925(b) statement).
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary