Trial by Ambush in Child Support Cases?

For the third time in several months, a panel of the Superior Court has considered whether to require litigants to plead specific grounds for modification of child support. Each time the Court has favored a less-restrictive policy, but dissenting opinions in these cases indicate a difference of opinion among the Superior Court jurists.

In Summers v. Summers, 2012 PA Super 3 (1/5/2012), Judge Strassberger refused to overturn the trial court’s decision to modify child support, in a case where the father did not give any notice in his petition as to why the trial court should modify his obligation. Using the standard court-issued form, the petitioner checked a box but did not fill in the blank to describe his grounds for modification. His obligation was initially modified at the conference level, and then further modified at a de novo hearing subsequently requested by the mother. On appeal, the defendant argued that her due process rights were violated when the trial court proceeded without advance notice of the nature of father’s claims. The mother also challenged the trial court’s reliance on a physician’s information request form issued by the court, which the father offered into evidence to prove his disability.

The Superior Court’s decision is intriguing, not only for what Judge Strassburger said, but also what he did not say in his opinion. First, in dismissing the mother’s due process argument, the Superior Court placed great weight on the fact that mother had an opportunity to prepare for the de novo hearing after the support conference where father’s claims were first revealed. The Court observed that a conference summary mailed to the parties contained a reference to the physician’s information request form describing the father’s disability. Still, the Court did not even distinguish between the bifurcated support procedure under Rule 1910.16-11 and the expedited procedure under Rule 1910.16-12. In affirming the trial court’s decision, the Superior Court simply held that the defendant suffered no prejudice in this case. What if the hearing had proceeded on the same day, as is done in Allegheny County? Judge Strassburger did not comment on whether his opinion would be different if several weeks had not elapsed between the conference and the hearing.

Second, the opinion did not place any emphasis on the fact that the final support order was an increase from the initial support order, replacing an interim order that temporarily decreased the obligation. That fact, and the fact that the opinion was published, leads this author to believe that the Court meant to relax the pleading requirements in child support cases, or at least to dismiss any notion that the due process rights of defendants might be violated by the existing court-issued forms for modifying child support.

Little effort was made in the Court’s opinion to reconcile what appears to be a clear violation of Rule 1910.19(a), which requires the petitioner to “specifically aver the material and substantial change in circumstances upon which the petition is based.” Nor did the Court mention the recent amendment of Rule 1910.3(b) or the Court’s recent decision in Brickus v. Dent, 5 A.3d 1281 (Pa.Super.2010)(2-1).

A well-argued dissenting opinion was issued by Judge Donohue, who would have vacated the trial court’s decision to modify child support. In her dissent, Judge Donohue cited a sentence from Brickus where the Court held that each party should have advance notice of claims in order to prepare and advocate its position. Judge Donohue argued that ignoring the dictates of Rule 1910.19(a) would thwart settlement by delaying notice of the petitioners’ claims, thereby increasing the court’s burden. She also noted that the defendant had to suffer an unwarranted restriction of her family’s cash flow from the date of the support conference until the de novo hearing. Judge Donohue also disagreed with the Court’s decision to permit the use of the physician’s information request, since the conference officer would not even allow mother to view it until the midst of the de novo hearing.

The recent amendments of Rule 1910.3(b) does not appear to resolve the issues raised by this case, so it appears that the difference of opinions will continue until resolved by the Supreme Court.