J. A11006/15

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

D.Y.C. :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: J.S., : No. 1462 EDA 2014

: Appellant :

Appeal from the Order Entered April 4, 2014,

in the Court of Common Pleas of Montgomery County

Civil Division at No. 04

- 09396, PACMS 00773690

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 09, 2015

Appellant, J.S. (“Husband”), appeals from the order seizing assets

from his bank account in order to satisfy his child support obligation. We

affirm.

The case has an extensive nine

- year history that began when appellee,

D.Y.C. (“Wife”), filed a complaint for divorce in 2004. We adopt the trial

court’s recitation of the proc edural history.

On March 13, 2006, [Husband] and [Wife] reached an agreement on the amount of child support to be paid by [Husband]. In an Order dated March 13, 2006, the Honorable Toby Dickman

ordered that the amount of arrears related to child
support be addressed in equitable distribution. On March 23, 2011, [Husband] and [Wife] attended a hearing before an equitable distribution Master which resulted in a Report and Recommendation. Thereafter, [Husband] filed a Motion to remand the

case back to the Master. On April 12, 2011, theJ. A11006/15

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- parties entered into an agreed support Order, wherein [Husband] pays $391 per month basic child support, and $50 toward arrears, for a total of $441 per month (Agreed Support Order”). On August 22, 2011, the Honorable Carol yn Carluccio entered an Agreed Order granting [Husband]’s Motion to remand the equitable distribution claim to the Master and containing a provision that “[t]he Master’s decision is binding upon the parties and shall be

issued with a 236 Notice entered as a Judgment Lien.” On December 17, 2012, the parties again appeared before the equitable distribution Master. On February 6, 2013, a Master’s Report, Decision, and Judgment upon Equitable Distribution, Alimony, Counsel Fees and Costs (hereinafter “2013 Ma ster’s Report”) was entered which recommended that judgment be entered in favor of [Wife] and against [Husband] in the amount of $30,382.50, recommended charging [Husband]’s account in the support action in the amount of $7,852.23 in arrearages, and furthe r recommended denying [Husband]’s claim for attorney’s fees and costs. Thereafter, on February 8, 2013, [Husband] filed timely exceptions to the Master’s Report dated February 6, 2013.

On June 14, 2013, the Honorable Garrett Page issued an Order ruling that the parties’ August 22, 2011 Agreed Order legally binds the parties to the 2013 Master’s Report dated February 6, 2013 and that said Agreed Order was not modifiable by the Court. Subsequently on July 25, 2013, the Honorable Garrett Page issued a Divo rce Decree and Order that divorced the parties from the bonds of matrimony and further ordered that judgment be entered in favor of [Wife] and against [Husband] in the amount of $30,382.50 and [Husband]’s account in the support action be charged in the amo unt of $7,852.23 in arrears. On August 19, 2013, [Husband] filed a fast track appeal pursuant to Pa.R.C.P. 904(f) to the July 25, 2013 Divorce Decree and Order. That matter is still pending on appeal with the Superior Court.J. A11006/15

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- On January 17, 2014, pursua nt to the Pennsylvania Consolidated Statutes Title 23 Section 4304.1 and 4305 and Pa.R.C.P. 1910.23(a), the Honorable Kelly Wall, issued an “Order to Freeze Assets,” directing Wells Fargo Bank, N.A. to freeze assets belonging to [Husband] up to $7,852.23, the outstanding balance of [Husband]’s support arrears. On January 27, 2014, the Domestic Relations Office provided notice of the Order to [Husband]. On February 7, 2014, [Husband] filed an Objection to Order to Freeze Assets. In [Husband]’s six (6)

par agraph Objection to Order to Freeze Assets, [Husband] stated that the January 17, 2014 Order froze funds in his Wells Fargo Bank account in the amount of $7,852.23, and argued that because he filed a timely appeal to the July 25, 2013 Decree and

Order that consolidated arrears with funds awarded in equitable distribution, “this Court lacks any and all jurisdiction to freeze any funds of [Husband].” On February 9, 2014, [Wife] filed a Motion to Overrule the Objection to Order to Freeze Assets arguing that [ Husband]’s objection cannot form the basis of a valid objection to the Order to Freeze Assets. This Court received both petitions and scheduled oral argument on [Husband]’s objection, and [Wife]’s Motion to overrule said objection. On March 28, 2014, bot h parties appeared and presented argument to the Court.

[Husband] argued that because the July 25,

2013 Divorce Decree and Order directed that [Husband]’s account in the support action be charged in the amount of $7,852.23 and [Husband] appealed that Ord er to the Superior Court, DRO had no jurisdiction to freeze [Husband]’s assets for that amount of money. [Husband] argued that even though the Agreed Support Order was being enforced and [Husband] reportedly had been paying $50 per month toward the arrear s amount, the total arrears amount (i.e. the $7,852.23) is pending before the Superior Court so to freeze assets based on that amount was error. Furthermore, [Husband] argued that if [Wife] wanted to continue the enforcement of the July 25, 2013 Decree an d Order,J. A11006/15

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- then [Wife]’s remedy would have been to try to quash the appeal.

In response, [Wife] argued that under Pa.R.A.P. § 1701(b)(2), this Court has continuing jurisdiction to enforce Orders unless [Husband] filed and requested a supersedeas from the c ourt pursuant to Pa.R.A.P. § 1731(b). In addition, [Wife] argued that even if [Husband] had requested a supersedeas, it should have been denied pursuant to the August 22, 2011 Order, which states that [Husband] waived his right to stay enforcement during the appeal process.

This Court deliberated on [Husband]’s objection to the court’s authority to issue the January 17, 2014 Order enforcing the July 25, 2013 Decree and Order during the pendency of appeal. Thereafter, on April 1, 2014, this Court issued an Order overruling [Husband]’s objection and granting [Wife]’s Motion to overrule said objection. On May 5, 2014, [Husband] filed a timely Notice of Appeal to the Superior Court.

Trial court opinion, 6/23/14 at 1

- 5 (references to footnotes omitted).

Hu sband presents a single issue for this court’s consideration:

Did the trial court abuse its discretion when it permitted the seizure of [Husband]’s bank account to satisfy child support arrears when [Husband] had been making $50.00 month payments on the ar rears pursuant to a 2011 Agreed Support Order?

Husband’s brief at 3.

In reviewing Husband’s claim, we note that our standard of review in

matters of support will allow us to reverse the trial court only when there

has been an abuse of that court’s discre tion. Ney v. Ney , 917 A.2d 863,

866 (Pa.Super. 2007).J. A11006/15

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The domestic relations section has the authority to “[i]ssue orders in

cases where there is a support arrearage to secure assets to satisfy current

support obligation and the arrearage by: . . . [a]t taching and seizing assets

of the obligor held in financial institutions.” 23 Pa.C.S.A. § 4305(b)(10)(iii).

The Rules of Civil Procedure implementing this provision are set forth in

Pa.R.C.P., Rule 1910.20(b)(3), 42 Pa.C.S.A. and Rule 1910.23.

Rule 1910 .20 provides that “[u]pon the obligor’s failure to comply with a

support order, the order may be enforced . . . pursuant to Rule 1910.23,

attaching and seizing assets of the obligor held in financial institutions.”

Rule 1910.20(b)(3). Rule 1910.23 provid es, in relevant part as follows:

(a) Upon identification of an obligor’s assets held by a financial institution, the court shall, upon certification of the overdue support owed by the obligor , enter an immediate order prohibiting the release of those asset s until

further order of court. . . . Service of the order

on the financial institution shall attach the asset up to the amount of the overdue support

until further order of court.

(b) The domestic relations section shall provide

written notification of the attachment to the obligor. The obligor and any joint owner of the account who has been notified by the financial institution may object to the attachment in writing or by personal appearance before the domestic relations section within 30 days after

i ssuance of the notice. The grounds for an objection are limited to the following: (1) no overdue support exists under the support order or there is a mistake in the certified amount of overdue support; (2) there is a mistake in the identity ofJ. A11006/15

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- the obligo r; or (3) the account is not subject to attachment as a matter of law.

(c) If no objection is made within 30 days after notice was issued, the court shall, upon proof that obligor was properly served with notice of the attachment, enter an order seizing t he assets up to the amount of overdue support

owed. The order shall be served on the financial institution and a copy of the order provided to both parties.

Pa.R.C.P. 1910.23(a)

- (c) (emphasis added). 1 “[T]he Rule implies, and

common sense dictates, that the court should take some action to consider

and dispose of the objections before proceeding further with a seizure

order.” Cutlip v. Shugars , 815 A.2d 1060, 1062

- 1063 (Pa.Super. 2003).

Instantly, the premise of Husband’s argument is simple. Husband

a rgues he was in full compliance with the April 12, 2011 support order and

1 The support guidelines differentiate between “overdue support” and “past due support” as follows:

“Overdue support,” the amount of delinquent support equal to or g reater than one month’s support obligation which accrues after entry or modification of a support order as the result of obligor’s nonpayment of that order.

“Past due support,” the amount of support which accrues prior to entry or modification of a suppor t order as the result of retroactivity of that order. When nonpayment of the order causes overdue support to accrue, any and all amounts of past due support owing under the order shall convert immediately to overdue support and remain as such until paid i n full.

Pa.R.C.P. 1910.1.J. A11006/15

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there was no basis to seize his assets. However, we note that in his

objection to the order freezing his assets, Husband claimed the trial court

lacked jurisdiction to freeze any fu nds because Husband filed an appeal of

the trial court’s July 25, 2013 order. 2

In response, Wife contends Husband’s argument is factually inaccurate

and his statement that he was at all times in compliance with the child

support order is disingenuous at best and completely belied by his history of

support payment maintained by domestic relations. (Wlife’s brief at 7.) 3

The March 28, 2014 notes of testimony indicate counsel for Husband

stated: “It is our contention that since the order is on appeal, that there is

no standing, so to speak by DRO to take an order to freeze the assets. And

Common Pleas and DRO has [sic] no jurisdiction at this time to address that

particular amount of money.” (Notes of testimony, 3/28/14 at 3.) The trial

court, in its June 23, 2014 opinion, stated, “the objections hearing focused

2 We note that the appeal Husband claimed divested the trial court of jurisdiction was handed down as an opinion filed on September 2, 2014.

Chen v. Saidi , 100 A.3d 587 (Pa.Super. 2014). In the appeal, there is no

discussion re garding the sum of $7,852.23 that was added to Husband’s child support arrears.

3 Wife has supplemented her brief with copies of PACSES case financial summaries which appear to support her position. ( See R16b

- 22b.) However, we are precluded from conside ring copies of these records. See
Kessler v. Broder , 851 A.2d 944 (Pa.Super. 2004), appeal denied , 868 A.2d 1201, (Pa. 2005) (on appeal, inclusion in the reproduced record is not an acceptable substitute for the original certified record); Warfield v.

Warf ield , 815 A.2d 1073, 1074 n.1 (Pa.Super. 2003) (this court must rely solely on the contents of the certified record).J. A11006/15

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on [Husband’s] objection as articulated, namely, that the trial court was

divested of jurisdiction and lacked authority to enforce the arrears amount

stated in the July 25, 2013 Decree and Or der.” (Trial court opinion, 6/23/14

at 6.) The trial court went on to state:

During the objections hearing, [Husband] did comment that he was paying $50 per month toward arrears, but argued this relative to the fact that he had no issue with Agreed Supp ort Order being enforced, rather [Husband] took issue with the total arrears amount frozen (i.e., $7,852.23) because [Husband] believed that the accuracy of that arrears amount would be addressed on appeal to the Superior Court. As [Husband] failed to rai se the issue in his Objection to Order to Freeze Assets and during the hearing, and also failed to submit any evidence to the court on the issue,

this court had no reason to assume that the January 17, 2013 Freeze Asset Order that specifically states it wa s issued pursuant to Pa.R.C.P. 1910.23 did not comply with 1910.23(a), where a representative from DRO certified that [Husband] owed overdue support prior to the court issuing the freeze order.

Id. at 6

- 7 (emphasis added) (reference to notes of testimony omitted).

We have reviewed the certified record. Husband was identified by the

tactical enforcement unit of MCDRS as owing overdue support arrears. As

stated in Rule 1910.23 there are three limited grounds for an objection;

namely, no overdue support e xists or there is a mistake in the certified

amount of overdue support; there is a mistake in the identity of the obligor;

or the account is not subject to attachment as a matter of law. Instantly,

Husband did not pursue any of the permitted grounds for o bjection.J. A11006/15

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-

Based on the above, we affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/9/2015