Opinion
J-A23009-18 No. 233 WDA 2018
02-22-2019
ANDREW D. HEARY Appellant v. DINA M. DICENZO
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 6, 2018
In the Court of Common Pleas of Allegheny County Civil Division at No(s): FD-07-00810-006 BEFORE: BOWES, J., SHOGAN, J., and STABILE, J. MEMORANDUM BY BOWES, J.:
Andrew D. Heary ("Father") appeals pro se from the February 6, 2018 order dismissing his exceptions to the November 27, 2017 Report and Recommendation of the hearing officer regarding child support for two minor children ("the Children"). We affirm.
The trial court set forth the relevant history underlying this matter as follows:
The parties married in 2000, separated in 2007 and divorced in 2010. They have two children[.] . . . [Dina A. Dicenzo ("Mother")] is an OB/GYN. Father is disabled. Mother filed a complaint in divorce on October 2, 2007. Father filed a complaint for custody on October 11, 2007[,] and a long, arduous and acrimonious custody battle began. [The parties share physical custody of the Children equally, and Mother has sole legal custody]. The case has a long history of the parties fighting over scheduling, extracurricular activities and certain health issues of the children. In addition to child support, Mother pays $400 per month to Father to defray the costs of his medical expenses.
Father filed a Petition for Modification on September 11, 2017. Neither party motioned the court to have the matter deemed complex. A hearing was held on November 24, 2017. Father and Mother both appeared and testified. The hearing officer set Mother's net monthly income at $23,723 and Father's net monthly income at $2,272. She took into consideration the $400 per month Mother pays to Father for his medical expenses and set a guideline order of $3,198 per month. Father filed exceptions which were denied by order dated February 6, 2018. Father timely appealed [and filed a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal raising 28 issues.]Trial Court Opinion, 4/16/18, at 1-2 (cleaned up).
On appeal, Father raises the following issues for our review:
1. Can Judge [Kim] Eaton ignore Edelstein v. Edelstein and destroy [F]ather and [the C]hildren's 10[-]year home?
2. Can Judge Eaton ignore the law?
3. Can Judge Eaton be blatantly prejudiced on and off the record?
4. Can Judge Eaton ignore medical proof that she has harmed the [C]hildren?
5. Can Judge Eaton allow [Mother's counsel] to lie when she knows [counsel] is lying?
6. Can Judge Eaton go unpunished for killing a disabled [F]ather who has been the primary caregiver of the [C]hildren all of their lives?
7. Can Judge Eaton ignore the fact that she has directly harmed the [C]hildren by harming the [F]ather?
8. Are the trial court's reasons for its ruling so unfocused, and so vague as to not be discernable from the record?
9. Can a judge just "make up stuff" that is not supported in the record or by evidence- when the record is clear on the issue?
10. Can a judge cause direct medical harm to a child and then refuse to recognize clear facts that her decision has done so?
11. Can a judge hurt the [C]hildren she is supposed to protect without recourse?
12. Can Judge Eaton's failure to consistently ignore the PA Law on the following factors?
• unusual needs and unusual fixed obligations
• other support obligations
• other household income
• the child's age
• the relative assets and liabilities of the parents
• medical expenses not covered by insurance
• standard of living, and
• other factors, including the best interests of the child law?
13. Can Judge Eaton be so vague?
(a) . . . the trial court cannot expect the appellant to file a Rule 1925(b) statement that is not vague when the trial court has "given absolutely no indication of the reasons for its decision."
Appellant's brief at 5-8.
14. If "Statement of Questions Involved" can only constitute an educated guess as to the trial court's reasoning based upon the issues presented, does the appellant have additional ability to preserve his arguments based on what the trial was really supposed to be about , and not a tangential issue of what the judge tried to make it about?
582 A.2d 1074 (Pa.Super. 1990).
We must first determine whether Appellant's issues are preserved for our review. Pennsylvania courts have repeatedly held that an appellant waives all matters for review where he identifies an outrageous number of issues in the concise statement. See Jones v. Jones , 878 A.2d 86 (Pa.Super. 2005) (holding that a seven-page, twenty-nine issue statement resulted in waiver). This Court may also find waiver where a concise statement is too vague. See In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013) ("When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review.") (citation omitted).
Here, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement. In response, Father filed a document raising twenty-eight matters of which he complained. Although Rule 1925(b) dictates that the number of issues raised in a concise statement will not be grounds for finding waiver, this principle applies only "[w]here non-redundant, non-frivolous issues are set forth in an appropriately concise manner[.]" Pa.R.A.P. 1925(b)(4)(iv); see also Kanter v. Epstein , 866 A.2d 394, 401 (Pa.Super. 2004) (holding that "[b]y raising an outrageous number of issues" in a Rule 1925(b) statement, an appellant impedes the trial court's ability to prepare an opinion addressing the issues on appeal, thereby effectively precluding appellate review).
The trial court described Appellant's concise statement as "a rambling dissertation on Pennsylvania child support guidelines and contains 28 numbered paragraphs accusing the [trial c]ourt, the [h]earing [o]fficer, and Mother's counsel of a number of improprieties." Trial Court Opinion, 4/16/18, at 2. Based on its review of the document, the trial court considered there to be only one relevant issue; namely, Father's claim that this is not a guideline support case and he is entitled to an upward deviation because the parties are not similarly situated financially and he has extraordinarily high expenses for himself and the Children. Id.
Based on our review, we agree with the trial court's characterization of the concise statement, as well as its determination as to the single relevant issue sufficiently raised therein. Thus, we deem that to be the sole issue preserved for our review. See Pa.R.A.P. 1925(b)(4)(ii) and (vii).
Our standard of review of a support order is well-settled:
We review child support awards for an abuse of discretion. A court does not commit an abuse of discretion merely by making an error of judgment. Rather, a court abuses its discretion if it exercises judgment that is manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record. [An appellate court] will not disturb a support order unless the trial court failed to consider properly the requirements of the rules governing support actions. Additionally, [if the] appeal presents questions of law, . . . "our standard of review is de novo and our scope of review is plenary" for such questions.Hanrahan v. Bakker , 186 A.3d 958, 966 (Pa. 2018) (internal citations omitted).
Child support "shall be awarded pursuant to statewide guidelines." 23 Pa.C.S. § 4322(a). In determining the ability of an obligor to provide support, the guidelines "place primary emphasis on the net incomes and earning capacities of the parties[.]" 23 Pa.C.S. § 4322(a). See also Woskob v. Woskob , 843 A.2d 1247, 1251 (Pa.Super. 2004) (finding that "a person's support obligation is determined primarily by the parties' actual financial resources and their earning capacity"). An award of support, once in effect, may be modified via petition at any time, provided that the petitioning party demonstrates a material and substantial change in their circumstances warranting a modification. 23 Pa.C.S. § 4352(a). The burden of demonstrating a "material and substantial change" rests with the moving party, and the determination of whether such change has occurred rests within the trial court's discretion. Plunkard v. McConnell , 962 A.2d 1227, 1229 (Pa.Super. 2008). The trial court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed conditions. McClain v. McClain , 872 A.2d 856, 863 (Pa.Super. 2005).
Much like Father's concise statement, the argument section presented in his appellate brief is rambling, disputatious, and references numerous alleged errors and "lies" in Judge Eaton's Pa.R.A.P. 1925(a) opinion. Appellant discusses various court filings, testimony provided at various hearings, and documentation he claims was submitted to the trial court. However, Appellant fails to make references to the places in the certified record where those items can be found. See Pa.R.A.P. 2119(c) ("If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears ( see Pa.R.A.P. 2132)."). Appellant's argument section is also devoid of any reference to or discussion of pertinent legal authority. See Pa.R.A.P. 2119(a) (stating that the parties' briefs must include a discussion of each question raised on appeal and a "citation of authorities as are deemed pertinent").
In the argument section of his brief, Appellant makes a single reference to the reproduced record, wherein he specifies the location of a Physician Verification Form verifying his disability. See Appellant's brief at 24.
While we are mindful that Appellant is proceeding without counsel, his status as a pro se litigant does not relieve him "of his duty to properly raise and develop his appealable claims." First Union Mortg. Corp. v. Frempong , 744 A.2d 327, 337 (Pa.Super. 1999). "Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant." Wilkins v. Marsico , 903 A.2d 1281, 1284-85 (Pa.Super. 2006). Moreover, given that the certified record herein exceeds 5,600 pages, we are disinclined to search for the items mentioned by Appellant; nor are we willing to make legal arguments on his behalf. See Coulter v. Ramsden , 94 A.3d 1080, 1088 (Pa.Super. 2014) (holding that "[t]his Court will not act as counsel and will not develop arguments on behalf of an appellant.").
Although we could find waiver on these bases, we decline to do so. Instead, we have reviewed the parties' briefs, relevant portions of the certified record, the relevant case law and statutory authority, and the trial court's Pa.R.A.P. 1925(a) opinion. Based on that review, we discern no abuse of discretion, and conclude that the trial court adequately and accurately disposed of Father's sole preserved challenge to the support order in its Pa.R.A.P. 1925(a) opinion, which we incorporate herein by reference. On the basis of the trial court's cogent opinion, we therefore affirm the trial court's February 6, 2018 order dismissing Father's exceptions to the November 27, 2017 Report and Recommendation of the hearing officer regarding child support.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/22/2019
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