J-A21005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MIRIAM A. JOHNSON, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALBERT D. JOHNSON, JR.,

Appellant No. 2843 EDA 2015

Appeal from the Order Entered August 28, 2015

In the Court of Common Pleas of Chester County

Domestic Relations at No(s): 0582 N 1997

PACSES #133001257

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2016

Albert D. Johnson, Jr., (Father or Petitioner) appeals from the order, 

entered on August 28, 2015, that denied his request to terminate an existing 

support order and an obligation to pay for health insurance coverage for 

Jessica Amanda Gardener, who Father claims is no longer a dependent child. 

We vacate and remand. 

The trial court provided the following factual and procedural 

introduction to this case, stating:

We consider the June 2, 2014 Petition of [Father] to 

modify an existing support order originally entered on February 

1, 1998 on the application of Miriam A. Johnson (the “Obligee” 

[or Mother]), Petitioner’s former wife and the mother of the 

parties[’] natural child, Jessica Amanda Gardener (hereafter “Ms. 

Gardner”). Therein, Petitioner averred his retirement from 

employment, his ineligibility for continuing Ms. Gardener’s 

medical insurance coverage under his former company’s health 
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insurance policy, and his request that she secure coverage under 

The Patient Protection and Affordable Care Act. The Petition was 

amended on August 4, 2014 to include a prayer for the 

termination of the support order, upon the allegation that Ms. 

Gardner, who is now 39 years of age, is no longer a dependent 

child. No formal written response to the Petition was filed. The 

support order was modified by this court on October 17, 2002 by 

the removal of Petitioner’s natural son from the order, who was 

then 19 years of age; however, Ms. Gardener, whose date of 

birth is April [], 1976, was then 26 years of age and was found 

to remain an adult dependent child within the meaning of 23 

Pa.C.S.A. §[]4321(3). Petitioner was ordered to pay for her 

benefit the sum of $2,000 per month, effective January 1, 2002, 

the amount from which relief is now sought by Petitioner. We 

conducted a hearing on the Petition on May 11, 2015 at which 

Petitioner was represented by Evan Hambleton, Esquire, and 

[Mother] appeared pro se as the respondent to represent her 

daughter’s interest. 

On December 23, 2014, Petitioner served on the Obligee 

Requests for Admissions pursuant to Pa.R.C.P. 4014, to which no 

objection or response was made. Prior thereto, on October 23, 

2014[,] we entered an Order directing Obligee to respond to 

Petitioner’s discovery demand, including requests for production 

of documents and interrogatories, including those inquiring into 

Ms. Gardener’s treatment for any condition which might render 

her incapable of self-support. In its October 17, 2002 order, the 

court found that Ms. Gardener “has suffered and continues to

suffer from multiple disabling mental illnesses.” Under Rule 

4014(b), requests for admissions to which no objection or 

response is made are admitted. 

Trial Court Opinion (TCO), 8/28/15, at 1-3. 

Following this preliminary discussion, the court related numerous facts 

about Ms. Gardener, involving her schooling, the locations to which she 

moved over the ensuing years, and the jobs that she held. The court also 

discussed Ms. Gardener’s previous diagnosis, the treatments she underwent, 

and the medications she took. The court also found that:
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There is no competent evidence that Ms. Gardener is physically 

incapable of working; however, even though she is a highly 

intelligent person, from the testimony adduced during trial, 

including our observation of her during her lengthy testimony, 

we find that she continues to suffer from a life-long psychiatric 

illness that prevents her from normally interfacing with other 

people. She displays continuing fearfulness of situations and 

people, lives an isolated life, with her two dogs her closest 

companions and protectors, and she has a work history that 

demonstrates an inability to successfully compete or hold on an 

ongoing basis a competitive position in the job market place, 

such as would allow her to become totally self-supporting.

TCO at 13 ¶ 21. 

Additionally, the court discussed Father’s financial situation upon his 

retirement and Mother’s limited income. The court also set forth the law 

directed to the issue of whether a parent continues to have a duty “to 

support a child that has a physical or mental condition, which exists at the 

time the child reaches its majority that prevents the child from being selfsupporting.” Id. at 16. The court explained that the test a court must 

employ “to determine continuing disability is whether the support beneficiary 

has become and is now physically and mentally able to engage in profitable 

employment and whether such employment is available to her at a 

supporting wage.” Id. (citing Hanson v. Hanson, 625 A.2d 1212 (Pa. 

Super. 1993)). Notably, however, it is the adult child’s burden to prove the 

conditions that make it impossible for her to be employed. Id. at 17 (citing 

Verna v. Verna, 432 A.2d 630 (Pa. Super. 1981)). 

The court also noted that it did not “have the benefit of current 

psychiatric testimony....” Id. at 17. However, in this regard, it stated: 
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It is well established that a court may not ordinarily take 

judicial notice in one case of the records of another case, 

whether in another court or its own, even though the contents of 

those records may be known to the court. Naffah v. City Deposit 

Bank, 13 A.2d 63 (Pa. 1940). However, we know from this 

Court's 2002 Order and the record made at that time in this selfsame case that Ms. Gardener has suffered since childhood from 

psychiatric illness and previously has been diagnosed with 

schizotypal personality disorder. People suffering from a 

schizotypal personality disorder typically display a need for social 

isolation, anxiety in social situations, odd behavior and thinking, 

have few or no close friends and are inappropriate in their 

display of feelings. Source: Diagnostic and Statistical 

Manual of Mental Disorders (DSM); Encyclopedia of Mental 

Disorders. In our opinion, the evidence in this case clearly 

demonstrates that Ms. Gardener continues to suffer from a longstanding mental disability that adversely affects her ability to 

become fully self-supporting. Given the instant facts, we 

conclude that the support recipient has rebutted the presumption 

of emancipation that arises as a consequence of her age.

Id. at 20 (emphasis in original). Accordingly, the trial court denied Father’s 

petition and continued his obligation to pay support for Ms. Gardener and 

provide health insurance coverage for her. 

Father filed a timely appeal to this Court and now raises the following 

seven issues for our review:

I. Did the trial court err in allowing the testimony of Jessica 

Gardener without prior notice to [Father]?

II. Did the trial court err in relying on medical records in its 

opinion after sustaining the objection to the introduction of said 

records into evidence at trial?

III. Did the trial court err in forming and relying upon its own 

medical opinions and conclusions regarding [Ms. Gardener], 

given the absence of competent evidence in the record of [Ms. 

Gardener’s] condition?
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IV. Did the trial court err by, in effect, placing the burden of 

proof on [Father] to establish that a prior medical condition no 

longer exists?

V. Did the trial court err in finding that Jessica Gardener is not 

capable of self[-]support?

VI. Did the trial court err in its determination of a continuing 

support obligation which was against the evidence?

VII. Did the trial court err in not terminating [Father’s] support 

obligation?

Father’s brief at 4-5.

In reviewing an order entered in a support proceeding, an 

appellate court has a limited scope of review. The trial court 

possesses wide discretion as to the proper amount of child 

support and a reviewing court will not interfere with the 

determination of the court below unless there has been a clear 

abuse of discretion. The function of the appellate court is to 

determine whether there is sufficient evidence to sustain the 

order of the hearing judge. An abuse of discretion is not merely 

an error of judgment; rather, it occurs when the law is 

overridden or misapplied, or the judgment exercised is 

manifestly unreasonable or the result of partiality, bias or ill-will.

Style v. Shaub, 955 A.2d 403, 406-07 (Pa. Super. 2008). The Style

decision also provides that “[i]n Pennsylvania, the duty to support a child 

generally ceases when the child reaches the age of majority, which is 

defined as either eighteen years of age or when the child graduates from 

high school, whichever comes later.” Id. at 408 (citing Blue v. Blue, 616 

A.2d 628 (Pa. 1992)). However, the Style opinion further explains that “23 

Pa.C.S.A. § 4321(3) ... provides that ‘[p]arents may be liable for the support 

of their children who are 18 years of age or older.’” Id. A continued 

support obligation occurs “where such child is too feeble physically or 
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mentally to support itself[.]” Id. (quoting Commonwealth ex rel. 

O’Malley v. O’Malley, 161 A. 883 (Pa. Super. 1932)). Furthermore, 

“[w]hen the disability resulting in the child’s inability to be self-sufficient 

already exists at the time the child reaches the age of majority ... the 

presumption is rebuttable by the adult child upon proof that there are 

‘conditions that make it impossible for her or him to be employed.’” Id. 

(quoting Hanson, 625 A.2d at 1214). 

We begin by addressing Father’s issue relating to the alleged reliance 

by the court on recent medical records although the court had denied their 

introduction into evidence. In conjunction with this argument, Father also 

contends that the court relied on its own medical opinions, gleaning 

information from medical records introduced in the court hearing held in 

2002. See discussion supra. In the trial court’s supplemental opinion, 

written after Father submitted his concise statement of errors complained of 

on appeal, the court addressed these arguments, stating: 

[Mother] sought to introduce medical records of Ms. Gardener’s 

recent treatment at a community mental health service in the 

State of Washington. We precluded her from doing so in that 

such records without testimony of the provider constituted 

hearsay and denied [Father] the opportunity to cross-examine; 

however, we do not believe we were precluded from consulting 

this court’s file in this case, specifically Ms. Gardener’s medical 

records in the court’s file introduced at a prior court hearing in 

2002 in which [Father] sought termination/modification of his 

support obligation, that had been subject to cross-examination, 

and from which the court at that time found Ms.[] Gardener to 

be the victim of an on-going psychiatric illness from age 7. 

These records were equally available to [Father]. 
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. . . 

Our discussion at page 20 of our [initial] opinion discusses our 

observations of Ms. Gardener during her trial testimony, and 

describes exactly the manner in which she presented while on 

the stand. Indeed, our findings of fact relative to her troubled 

employment history, such as it has been, and our observation of 

her trial demeanor and her responses to counsel’s questions and 

our own, supports the conclusion we reached under all of the 

facts as we found them to be. As the trier of fact, we had the 

authority to judge the demeanor of this witness, measure her 

credibility, and determine whether either was affected by mental 

impairment. We do not believe we required psychiatric 

testimony to reach a conclusion respecting those factors, given 

her long-standing illness and the facts described in our findings 

that support our ultimate conclusion. Neither is our resort to the 

DSM, a manual available and commonly used by trial judges, 

unusual, nor inconsistent with the records in the court[’]s file 

pertaining to this case and Ms. Gardener. 

Trial Court Supplemental Opinion (TCSO), 10/16/15, at 5-7. 

Specifically, Father argues that the court improperly relied on

unidentified medical records in arriving at its conclusion that Ms. Gardener 

remained a dependent child. Father further contends that the court is 

prohibited from considering evidence not part of the record in this case or 

from taking judicial notice of the records in another case, even if known to 

the court. We agree. Although the certified record in this matter contains 

copies of medical reports from the 2002 litigation, those documents were not 

admitted into evidence in this case. Therefore, the court was not permitted 

to rely on any information gleaned from those documents. “A trial court 

may not consider evidence outside of the record in making its determination. 

Eck v. Eck, 327 Pa. Super. 334, 475 A.2d 825, 827 (1984). Nor may this 
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[C]ourt uphold a trial court’s order on the basis of off-the-record facts. Id.

(citing In re Frank, 283 Pa. Super. 229, 423 A.2d 1229 (1980)).” Ney v. 

Ney, 917 A.2d 863, 866 (Pa. Super. 2007). 

Here, the court references the more than ten-year-old medical records 

not contained in the record in the instant case and the newer medical 

records Mother sought to introduce. The court directly indicates that it 

precluded the more recent documents as hearsay, because they could not be 

authenticated. However, the court apparently relied on selected documents 

from the litigation that took place in 2002, which we conclude is troubling 

because of the age of the information contained in those records and the 

fact that the evidence is outside the record presently before the court. 

Based upon this conclusion, we vacate the court’s denial of Father’s petition 

and remand this matter for consideration by the court of the evidence before 

it without reliance on any evidence, medical or otherwise, that is not part of 

the record.1 

Order vacated. Case remanded for further action consistent with this 

memorandum. Jurisdiction relinquished. 

____________________________________________

1

In light of the fact that we are vacating the order appealed from for the 

reasons stated above, we do not address the other issues raised by Father in 

this appeal.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016