Darcy Williams of our Chester County office recently provided an entry to our firm's Berks County legal blog by discussing how the Court of Common Pleas dealt with a support modification which was filed less than twenty days after an agreed order went into effect. Citing the Pennsylvania Support Code with respect to filing modifications based on changes in circumstance, the Court dismissed the petitioning mother's claim that a mutual mistake occurred when the parties reached an agreement on the amount of support to be paid in this case. The Court noted that the Mother's remedy was to file an appeal within twenty-days of the Order, not file to modify since no change in circumstance had occurred.
It is an interesting example of procedural nuance and code interpretation and offered in its entirety below:
On December 11, 2012, the Honorable Peter W. Schmehl of the Berks County Court of Common Pleas, Domestic Relations Section, explained what factual and legal requirements must be met for a petition for modification of a support order in Miller v. Miller, No. 12-15465 (Pa. Ct. Com. Pl. Berks Co., Dec. 11, 2012). In this case, Ms. Miller filed a Complaint for Support against her ex-husband, Mr. Miller, for both her and her child. After a domestic relations conference before a Domestic Relations Conference Officer, the parties consented to a Support Order allocating approximately $1,900 per month to Ms. Miller and her child.
On August 31, 2012, a mere eighteen days after consenting to the Support Order, Ms. Miller filed a Petition for Modification of a Support Order (the “Petition”). In the Petition, Ms. Miller claimed that “Since the entry of the Order, the circumstances have changed substantially as follows: Expense of $3,800 per month was improperly deducted from Mr. Miller’s net income.” On September 13, 2012, Mr. Miller filed Preliminary Objections to the Petition claiming that Ms. Miller failed to comply with Pa. R.C.P. 1910.19(a), which requires that the Petition aver a material and substantial change in circumstances in the two weeks since the Support Order was entered. Basically, Ms. Miller did not allege any financial changes over the eighteen-day period, but instead, Ms. Miller simply believed that there was a calculation error in the Support Order. On September 20, 2012, the Court sustained Mr. Miller’s Preliminary Objections and dismissed the Petition.
On October 1, 2012, with the assistance of her new counsel, Ms. Miller filed a Petition for Reconsideration and an Answer to the Preliminary Objections. Ms. Miller argued that Judge Schmehl should reconsider because she was not given the requisite twenty (20) days to either Answer Mr. Miller’s Preliminary Objections or to file an amended Petition. In her Answer to the Preliminary Objections, Ms. Miller also argued that the agreed upon Support Order was based on a mutual mistake of the parties, and that the biweekly expense of $1,900 was improperly deducted from Mr. Miller’s support calculations.
Judge Schmehl found that, although the decision granting the Preliminary Objections cut short Ms. Miller’s twenty-day period to answer or amend the Petition, any Answer or amendment would be futile given these particular Preliminary Objections and Ms. Miller’s underlying Petition. Ms. Miller could not possibly answer the Preliminary Objections such that the Court would overrule the Preliminary Objections.
In affirming the prior Order sustaining the Preliminary Objections, Judge Schmehl first noted that 23 Pa. C.S.A.§ 4352(a) provides that a petition to modify a support order may be filed at any time if the requesting party demonstrates a substantial change in circumstances. Further, Pa. R.C.P. 1910.19(a) requires that a petition to modify a support order shall specifically aver the material and substantial change(s) in circumstances upon which the petition is based.
Judge Schmehl found that Ms. Miller did not aver any changes in circumstance in her Petition, let alone a material or substantial changes. Judge Schmehl noted that Ms. Miller did not allege such valid changes in circumstances such as loss of employment or receipt of a promotion in the Petition. Clearly, a mere allegation that a support calculation is “improper” is insufficient to support a finding that circumstances had materially changed.
Relying on Florian v. Florian, 689 A.2d 968, 971-72 (Pa. Super. Ct. 1997), Judge Schmehl held that had Ms. Miller wished to challenge the calculation set forth in the Support Order, she should have filed an appeal, not the Petition.
Judge Schmehl held that the Support Order was not only an arrangement between the parties, but was also the result of the determination of an officer of the Court - the Domestic Relations Conference Officer - acting as a trier of fact. The Conference Officer’s finding was consented to by both parents and no appeal followed. Judge Schmehl found, therefore, that the Support Order is now the law of the case, and would be subject to change only upon some material and substantial change in circumstances.
First, Judge Schmehl’s order affirms that a support litigant must follow the proper procedures for challenging an incorrect calculation by filing an appeal. Second, Judge Schmehl cut short a potentially futile, costly and time-consuming battle involving the Petition when it was clear that Ms. Miller’s arguments were without merit from the outset.