The recent case of Brickus v. Dent provides practitioners with a reminder that support orders may be modified in any appropriate manner — either upwardly or downwardly — regardless of whether the petitioner is seeking an upward or downward modification of the order and the respondent does not file a counter/cross-petition to modify.
Brickus was initiated in Chester County. According to a Superior Court opinion, the facts are as follows: Latoya L. Brickus and Raymond T. Dent are the parents of a child and were never married. In August 1999, a month after the child was born, Brickus filed a complaint for Child Support. On May 16, 2001, the court issued a modified support order increasing Dent's child support obligation to $370 per month after Brickus filed a petition to modify. In 2007, Dent filed a petition to decrease his support obligation "due to his impending retirement from the military," and thereafter withdrew his petition when the parties agreed to leave the 2001 modified support order in effect.
According to the opinion, Dent again filed a petition to modify on Aug. 25, 2008, to decrease his support obligation because of his decrease in income as a result of job loss. Dent alleged that his only income was his military pension of $942 per month. Brickus did not file a cross-petition to modify. On Oct. 27, 2008, the parties executed an interim support agreement that temporarily reduced Dent's child support obligation to $200 per month. According to the opinion, "the parties intended the interim support order to remain in effect only until the court heard argument on Father's petition and issued a final support order."
On Jan. 27, 2009, the opinion said, a master's hearing was held. The master found Dent's evidence insufficient to prove that he tried to mitigate his job loss "with diligent attempts to obtain new employment." Therefore, the hearing officer imputed an earning capacity in addition to Dent's monthly military pension to calculate his monthly net income in accordance with the Pennsylvania support guidelines. The master issued a report and recommendation on Feb. 2, 2009, recommending that Dent pay child support in the amount of $511 per month. This amount was an increase in Dent's child support obligation. Thereafter, Dent filed exceptions to the master's report and recommendation "claiming the hearing officer should have considered only his military pension, not his earning capacity, in the computation of his support obligation. Mr. Dent also alleged he made tireless, albeit unsuccessful, efforts to find employment."
After a hearing on Dent's exceptions, the trial court entered an order granting Dent's exceptions in part and denying them in part. The trial court found that the master erred in increasing Dent's child support obligation where Brickus did not file a cross-petition to increase Dent's child support obligation. However, according to the opinion, the trial court denied Dent's exceptions regarding his assertion that the master erred in refusing to decrease Dent's child support obligation where it found that he did not present sufficient evidence to establish mitigation of his unemployment. Therefore, the trial court "reinstated the May 2001 support order retroactive to August 25, 2008, the date Father filed his petition to decrease, except for the period when the interim support agreement was in effect."
Brickus filed a timely notice of appeal and a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Brickus raised seven issues on appeal. Primarily, Brickus claimed that the trial court erred in overruling the report and recommendation of the hearing officer because she did not file a cross-petition to modify the support order, and that the trial court erred in excluding the time period of the interim agreed order for support from the retroactive application of the new support order.
The Superior Court's analysis focused on the wording of Pennsylvania Rule of Civil Procedure 1910.19(a)-(c) and the form notice provisions accompanying initial support complaints and petitions to modify support in Rule 1910.27(b) & (g). Pursuant to Rule 1910.19(a): "A petition for modification or termination of an existing support order shall specifically aver the material and substantial change in circumstances upon which the petition is based." The rule also provides: "A new guideline amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances." Rule 1910.19(c) provides: "Pursuant to a petition for modification, the trier of fact may modify or terminate the existing support order in any appropriate manner based upon the evidence presented." (Emphasis added). Pursuant to Rule 1910.19(c), it appears to be clear that the court has the ability to modify an existing support order in any appropriate manner based on the evidence presented regardless of whether both parties petition for the modification, even though Rule 1910.19(a) requires the petitioner to aver a material and substantial change in circumstances, which is paradoxical. The Superior Court focused on due process requirements and whether the parties each have notice that the modification can occur in either direction regardless of whether both parties have petitioned the court.
In the present case, there was a per curium order provided to the parties scheduling the hearings. The order contained the following language: "The appropriate court officer may enter an order against either party based upon the evidence presented without regard to which party initiated the support action." The Superior Court focused on this notice language, and found that because of such language, both parties received adequate notice that such a modification could occur. Interestingly, in the dissent to the opinion, Judge Mary Jane Bowes focuses on the fact that such notice was "inadequate" in that it did not comport with the specific form language provided in Rule 1910.27 for modification actions, which provides that the language in the notice should be as follows: "The appropriate court officer may modify or terminate the existing order in any manner based upon the evidence presented." The language contained in the per curium order is the same language as provided in Rule 1910.27 for initial support actions filed by a party.
Therefore, the Superior Court found that appropriate notice was given and that the Support Guidelines provide that a court may modify a support order either upward or downward regardless of whether both parties have petitioned for same, as long as one party has brought the matter before the court for modification. Brickus also raised the issue that pursuant to Rule 1910.19(a) an inherent change in circumstances occurred since 2001 when the support amount was calculated, since the support guidelines were revised when the parties were before the court on the modification.
The Superior Court then handled the issue of retroactivity. In citing the case of Krebs v. Krebs , the Superior Court stated: "An order of support shall be effective from the date of filing of the complaint or petition for modification unless the order specifies otherwise." The Superior Court also cited the case of Christianson v. Ely in stating: "In fact, failure to make an award retroactive is reversible error unless specific and appropriate justification for such a ruling is shown." The Superior Court also pointed toward Section 4352 of the Domestic Relations Code regarding retroactivity.
According to the opinion, the parties did not argue whether the time period of the temporary interim support order should cause the exemption of that time period from retroactivity. It was not until the final order was issued from the court did the issue arise. Therefore, Brickus first raised her objection to same in her 1925(b) statement. The trial court stated in its opinion that the temporary stipulation was recorded in a signed writing, which did not contain conditions that the temporary reduction in support was related to the qualitative level of effort by Dent to seek new employment, as Brickus claimed was the purpose of the temporary order.
The Superior Court disagreed with the trial court's rationale. Supporting its holding, the Superior Court stated: "Given the general rules applicable to retroactivity of support orders, we think the better resolution would be for the court to reconsider its decision on this issue as well upon remand."
This case raises an interesting issue for family law practitioners. Based on the rules and guidelines, it is clear that once a party files a petition to modify support, the court has the authority to modify the order upwardly or downwardly regardless of whether a cross-petition is filed. However, the rules appear contradictory because of the requirement under Rule 1910.19(a) to specifically plead the material change in circumstances.
Further, the crux of the Superior Court's analysis in the Brickus case appears to rely on the notice provisions accompanying the filings and scheduling orders by the court. If a family law practitioner is faced with a situation where the respondent may greatly benefit from a modification contrary to what the petitioner is seeking, it may be wise to file a cross-petition to modify to be safe. In light of the detailed and lengthy dissent filed by Bowes, such a precaution should be considered by the practitioner.
However, if the result of the Superior Court's analysis were an affirmation of the trial court's decision, it would appear that in every support modification case, respondents would have to cross-petition if there was the possibility that a modification in favor of the respondent was a potential result. However, based on the opinion in Brickus , such a cross-petition is not required. Further, it is to be noted that there are proposed rule amendments to the support guidelines that have been published for comment that specifically address the issues raised in the Brickus case.
MICHAEL E. BERTIN is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and secretary of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the December 14, 2010, issue of The Legal Intelligencer. © 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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