J-A08028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.P.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

T.J.S.

Appellee No. 1340 MDA 2014

Appeal from the Order of July 9, 2014

In the Court of Common Pleas of Lycoming County

Civil Division at No.: 2010-20828

BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED JUNE 05, 2015

M.P.S. (“Husband”) appeals the July 9, 2014 order that dismissed his 

exceptions to an April 15, 2014 child support order. We affirm.

A prior panel of this Court summarized the procedural history as 

follows:

The parties were married on January 3, 2003, and divorced on 

October 13, 2010. Pursuant to the divorce, Husband and [T.J.S. 

(“Wife”)] executed a property settlement agreement on July 1, 

2010. This agreement dealt with, inter alia, the distribution and 

division of various marital assets, mortgage payments for the 

family residence, custody of the parties’ three minor children, 

and support. The agreement was incorporated but not merged 

into the divorce decree. The parties agreed that they would 

share legal custody of the children and Husband “would always 

have the children for at least 51% of the time and [Wife’s] time 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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with the children shall not exceed 49%.”[1] Property Settlement 

Agreement, 7/1/2010, at 9 ¶8(A) and (B). The agreement 

further provided:

6. EQUITABLE DISTRIBUTION

(A) Real Property. The jointly owned real estate of the 

parties situate at 105 West Penn Street, Muncy, Lycoming 

County, Pennsylvania, and more particularly described and 

recorded in Deed Book 6652, page 139, shall be conveyed 

to Husband, and become the sole and exclusive property 

of Husband. Wife specifically waives, sets over, transfers 

and assigns all of her right, title and interest in said 

property to Husband. Wife agrees to execute [any] and all 

written instruments, including deeds, as may be necessary 

to effectuate this clause.

The Mortgage currently existing on the property in 

Muncy, Pennsylvania, in favor of Wells Fargo Bank, N.A. 

shall be the sole and exclusive responsibility of Husband. 

However, Wife shall pay to Husband the sum of Six 

Hundred Dollars ($600.00) monthly to assist with the 

mortgage obligation. Said monthly payments are to 

continue until the youngest of the parties’ children attains 

the age of eighteen (18) years or graduates from high 

school, whichever occurs last. The parties agree that 

Wife’s payments to Husband shall be in lieu of child 

support. . . .

* * *

9. CHILD SUPPORT, HEALTH INSURANCE AND TAX 

EXEMPTIONS. The parties agree that Wife shall have no 

child support obligation, in light of the provisions of 

paragraph 6(A) above. It is further agreed that Husband 

shall continue to carry health insurance on the parties’ 

children as long as the premium is reasonable in 

comparison to Husband’s net monthly income. Husband 

shall claim all of the parties’ children on his income tax 

return for 2010 and for all future years.

____________________________________________

1

Pursuant to a March 14, 2013 order, the parties currently share 

physical custody equally.
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Property Settlement Agreement, 7/1/2010, at 5 ¶6(A), and at 15 

¶9.

On February 25, 2011, Husband filed a Complaint in Support 

requesting that Wife pay child support for the three minor 

children. A hearing before a domestic relations conference 

officer was held on March 21, 2011. The court, adopting the 

recommendation of the conference officer, entered an order on 

March 22, 2011, dismissing the complaint without prejudice, due 

to the parties having equal income and 50/50 custody of the 

children.

On October 26, 2011, Wife filed a petition to interpret the 

property settlement agreement, requesting that the court 

determine whether, in light of the child support determination 

rendered on March 22, 2011, she should have to continue to pay 

the $600 monthly mortgage payment to Husband. Specifically, 

Wife requested that the court determine if the monthly 

payments are in lieu of child support or if the payments stand 

separate from child support as part of the property distribution. 

Wife further requested that if the trial court determined that the 

$600 payment was in lieu of child support that the payment be 

vacated due to the determination made by the Domestic 

Relations Officer that Husband was due no support.

Husband filed a response to Wife’s petition alleging that the 

agreement is a valid contract between the parties and not 

modifiable by the court. . . .

. . . The trial court determined that the monthly payments 

toward the mortgage replaced any child support obligation due 

and owing by Wife. The court then reasoned that because 

“[p]arents are not permitted to bargain away child support . . . 

[p]rovision 6(A) of the [a]greement violates public policy.” Trial 

Court Opinion, 11/15/2011, at 5. 

[M.P.S.] v. [T.J.S.], 2193 MDA 2011, at 1-4 (Pa. Super. Dec. 17, 2012) 

(footnote omitted).

On December 17, 2012, this Court agreed with the trial court that the 

$600 monthly payment constituted child support, but concluded that the 

agreement did not violate public policy because Wife had agreed to an 
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amount in excess of what the law required. Therefore, the agreement was 

valid and did not prejudice the children’s welfare. Id. at 12. However, 

because Wife had sought only to interpret the agreement and had not pled a 

change in circumstances sufficient to permit the trial court to consider 

modification, this Court held that the trial court had erred in eliminating 

Wife’s payment. Therefore, we reversed the order and remanded for further 

proceedings. Id. at 13.

Upon remand, on February 14, 2013, Wife filed a petition to modify 

child support, in which she alleged that the parties’ incomes had changed 

since the 2010 agreement. Wife also sought retroactivity beyond the filing 

date as the appeal had deprived the trial court of jurisdiction to address a 

modification earlier. On February 22, 2013, Husband filed a petition to 

enforce the property settlement agreement, alleging that Wife had not paid 

the $600 monthly as agreed.

On March 18, 2013, Husband filed preliminary objections to Wife’s 

petition to modify support, in which he alleged that the agreement was not 

modifiable. On May 15, 2013, the trial court dismissed those objections, 

finding that the child support provision was modifiable pursuant to 23 

Pa.C.S.A. § 3105(b) which states that “[a] provision of an agreement 

regarding child support . . . shall be subject to modification by the court 

upon a showing of changed circumstances.” The trial court ordered a 

hearing before a hearing officer on Wife’s modification petition.
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After several days of hearings, on April 21, 2014, the hearing officer 

found that the parties’ incomes had changed and that, as of 2011, Husband 

had a greater income than Wife. The hearing officer also found that 

Husband had filed a petition to reopen child support on December 29, 2011, 

which was still pending. Therefore, the hearing officer set the child support 

order retroactive to December 29, 2011. The hearing officer found that for 

all relevant periods, Husband owed support to Wife.

On May 13, 2014, Husband filed exceptions. On July 9, 2014, the trial 

court dismissed Husband’s exceptions. On August 7, 2014, Husband filed a 

notice of appeal. On August 19, 2014, the trial court ordered Husband to file 

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and Husband timely complied. The trial court filed its opinion 

pursuant to Pa.R.A.P. 1925(a).

Husband raises the following issues in his appeal:

Whether the Trial Court erred in its:

(a) Finding a substantial and material change in 

circumstances in the parties’ income;

(b) [F]ailing to include Mother’s contractual obligation to 

pay $600 per month support; and

(c) [F]inding the agreed amount prejudiced the 

child[ren]’s welfare.

Husband’s Brief at 4.

Our standard of review is well-settled:

When evaluating a support order, this Court may only reverse 

the trial court’s determination where the order cannot be 
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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. 

Brickus v. Dent, 5 A.3d 1281, 1284 (Pa. Super. 2010).

Husband first argues that the trial court erred in finding that there had 

been a material and substantial change in circumstances. Husband contends 

that the income differentials were not sufficiently substantial to justify a 

modification. Husband’s Brief at 10-11.

The difficulty that we have in reviewing Husband’s contentions is that 

there is no transcript in the certified record from the support hearing. As we 

stated in Commonwealth v. Preston:

The fundamental tool for appellate review is the official record of 

the events that occurred in the trial court. To ensure that an 

appellate court has the necessary records, the Pennsylvania 

Rules of Appellate Procedure provide for the transmission of a 

certified record from the trial court to the appellate court. The 

law of Pennsylvania is well settled that matters which are not of 

record cannot be considered on appeal. Thus, an appellate court 

is limited to considering only the materials in the certified record 

when resolving an issue. In this regard, our law is the same in 

both the civil and criminal context because, under the 

Pennsylvania Rules of Appellate Procedure, any document which 

is not part of the officially certified record is deemed nonexistent—a deficiency which cannot be remedied merely by 

including copies of the missing documents in a brief or in the 

reproduced record.

904 A.2d 1, 6 (Pa. Super. 2006) (citations omitted). Without a transcript, 

we cannot determine the scope of the evidence received by the hearing 
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officer or conduct an independent review of the evidence. Specifically 

addressing missing transcripts, we held that:

With regard to missing transcripts, the Rules of Appellate 

Procedure require an appellant to order and pay for any 

transcript necessary to permit resolution of the issues raised on 

appeal. Pa.R.A.P.1911(a). . . . When the appellant or crossappellant fails to conform to the requirements of Rule 1911, any 

claims that cannot be resolved in the absence of the necessary 

transcript or transcripts must be deemed waived for the purpose 

of appellate review. It is not proper for either the Pennsylvania 

Supreme Court or the Superior Court to order transcripts nor is it 

the responsibility of the appellate courts to obtain the necessary 

transcripts. 

In the absence of specific indicators that a relevant document 

exists but was inadvertently omitted from the certified record, it 

is not incumbent upon this Court to expend time, effort and 

manpower scouting around judicial chambers or the various 

prothonotaries’ offices of the courts of common pleas for the 

purpose of unearthing transcripts, exhibits, letters, writs or PCRA 

petitions that well may have been presented to the trial court 

but never were formally introduced and made part of the 

certified record. If, however, a copy of a document has been 

placed into the reproduced record, or if notes of testimony are 

cited specifically by the parties or are listed in the record 

inventory certified to this Court, then we have reason to believe 

that such evidence exists. In this type of situation, we might 

well make an informal inquiry to see if there was an error in 

transmitting the certified record to this Court. . . . An appellant 

should not be denied appellate review if the failure to transmit 

the entire record was caused by an “extraordinary breakdown in 

the judicial process.” However, if the appellant caused a delay 

or other problems in transmitting the certified record, then he or 

she is not entitled to relief and the judgment of the court below 

should be affirmed. 

Id. at 7-8 (citations omitted). 

As the appellant, it is Husband’s responsibility to provide a complete 

record so that we may review thoroughly the issues before us. Id. at 7. 
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Here, there is no indication that the transcripts were ever ordered. Neither 

the trial court nor the parties cite to any transcripts in the opinion or the 

briefs. No transcript request form is appended to the notice of appeal. The 

docket contains no notations that transcripts were filed. Therefore, we have 

no reason to believe that the transcripts exist or that a remand would 

demonstrate anything beyond Husband’s failure to comply with the rules.

This Court cannot meaningfully review claims raised on appeal 

unless we are provided with a full and complete certified record. 

This requirement is not a mere “technicality” nor is this a 

question of whether we are empowered to complain sua sponte

of lacunae in the record. In the absence of an adequate certified 

record, there is no support for an appellant’s arguments and, 

thus, there is no basis on which relief could be granted.

Id. at 7 (citation omitted). Without a transcript, we cannot determine if the

evidence supports the court’s decision or if “the judgment exercised is 

shown by the record to be manifestly unreasonable or the product of 

partiality, prejudice, bias or ill will.” Brickus, 5 A.3d at 1284. While neither 

the parties nor the trial court remark upon the lack of a transcript, we are 

constrained to find this first issue waived because it cannot be resolved 

without reference to the transcript.2 See Commonwealth v. Houck, 102 

A.3d 443, 456 (Pa. Super. 2014) (“When the appellant . . . fails to conform 

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2 Without a transcript, it is unclear how the trial court met its obligation 

“to conduct a complete and independent review of the evidence when ruling 

on exceptions.” Sirio v. Sirio, 951 A.2d 1188, 1196 (Pa. Super. 2008). 

However, we must find Husband’s issues waived and are constrained to 

affirm the trial court.
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to the requirements of [the rules requiring transcripts to be ordered], any 

claims that cannot be resolved in the absence of the necessary transcript or 

transcripts must be deemed waived for the purpose of appellate review.” 

(citation omitted, ellipsis in original)).

Husband’s third issue must fail for the same reason. Husband argues 

that there was no prejudice because Mother did not prove that paying the 

$600 per month obligation would leave her unable to meet the needs of the 

children. Husband’s Brief at 11-13. The only way to determine whether 

Mother proved prejudice would be to review the transcript of the hearing. 

Father has not produced that transcript. Therefore, we must find this issue 

waived.

We must also find Husband’s second issue waived, albeit for different 

reasons. First, Husband purported to raise the claim that the trial court 

erred by failing to include Wife’s contractual obligation of support. However, 

Husband devotes three sentences to this entire argument, and cites no legal 

authority to support any point. Husband’s Brief at 11. Husband did not 

develop a legal argument; accordingly, this issue is waived. See 

Commonwealth v. Antidormi, 284 A.3d 736, 754 (Pa. Super. 2014). 

Second, within this section of his brief, Husband introduces a new issue: 

whether the support order’s retroactive date was appropriate. Husband’s 

Brief at 11. However, we must find this issue waived as well because 

Husband did not include it in his concise statement. See Lineberger v. 

Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (“An appellant’s failure to 
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include an issue in his [Rule] 1925(b) statement waives that issue for 

purposes of appellate review.”).

Finding that all of Husband’s issues are waived, we affirm the trial 

court’s order.

Order affirmed.

Judge Shogan joins the memorandum.

Judge Strassburger files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/2015