J-S26003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 M.S.K. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. K.J.K.

Appellant No. 1450 MDA 2014

Appeal from the Order Entered July 10, 2014 In the Court of Common Pleas of Lancaster County Domestic Relations at No(s): 2005-02621

BEFORE: OTT, J., WECHT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED MAY 08, 2015

K.J.K. (Father) appeals pro se from the order entered July 10, 2014, in the Court of Common Pleas of Lancaster County, that denied his petition for redress of grievances, which the trial court treated as a petition to modify child support obligations to terminate arrears.^[1] Based upon the following, we affirm. ____________________________________________

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17, 2007, and was expected to remain in prison well past his child’s eighteenth birthday. By order issued August 19, 2008, Father was required to pay $20.00 per month on the arrears. On June 2, 2010, following a March 20, 2010 request for modification by Father, an interim order was entered obligating Father to pay $15.00 per month on arrears and $5.00 on fees. Following a hearing, the trial court made final the interim order. Father appealed, and this Court affirmed. See [M.J.K.] v. [K.J.K], 31 A.3d 751 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 34 A.3d 83 (Pa. 2011). On September 27, 2012, Father filed a petition for modification. At the time of the November 2, 2012 conference, Father reported that he earned $.42/hour and worked 6.5 hours per day, five days a week, resulting in weekly earnings of $13.65 and $59.15 a month. Father reported total monthly expenses of $65.23 without including his child support arrears payment. It was noted by the conference officer that this total could not be accurate given his monthly earnings of $59.15. See Summary of Trier of Fact, 11/20/2012, at 3. On November 21, 2012, the trial court issued an order, decreasing child support arrears payments to $10.00 on arrears and $5.00 for fees, a total of $15.00 a month. On January 24, 2014, Father filed a petition for modification, requesting a further $5.00 decrease, stating commissary items had

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increased in price and his change in diet required him to purchase healthier foods and increased his expenses.^[3] After a conference on March 4, 2014, the trial court, on March 5, 2014, issued an order decreasing payments on arrears and fees to $10.00 a month. Three months later, on June 13, 2014, Father filed the underlying petition for redress of grievances in forma pauperis, asserting “the arrears should be stopped or dismissed under state law,” and further claiming, inter alia, his prison pay is “not income.” Father’s Petition for Redress, 1/24/2014, at 2, ¶¶4, 6 (capitalization removed). The trial court denied Father’s petition and this appeal followed.^[4] Father raises the following issues on appeal: J-S26003-15 day time limit[5] after an Order is made,” when [K.J.K.] has a RIGHT at any time to file for Redress of grievance?[6]

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At the outset, we state our standard of review:

When evaluating a support order, this Court may only reverse the trial court’s determination where the order cannot be 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. In addition, we note that the duty to support one's child is absolute, and the purpose of child support is to promote the child's best interests. Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted).

Under Pennsylvania Rule of Civil Procedure 1910.19(f) modification is permissible with respect to arrears. Specifically,

… the court may modify or terminate a charging order for support and remit any arrears, all without prejudice, when it appears to the court that: …

(2) the obligor is unable to pay, has no known income or assets and there is no reasonable prospect that the obligor will be able to pay in the foreseeable future. Pa.R.C.P. 1910.19(f)(2) (emphasis supplied). “However, the Rule does not automatically entitle an obligor to this broad relief.” Plunkard v. McConnell, 962 A.2d 1227, 1231 (Pa. Super. 2008) (citation omitted), appeal denied, 980 A.2d 111 (Pa. 2009). Where the arrears were incurred prior to the incarceration, the support obligor will not be permitted to “benefit” from his incarceration. Id. at 1231.

Here, the court reasoned:

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[Father’s] case can only be closed out and arrears remitted when there is, “No reasonable prospect that the obligor will be able to pay in the foreseeable future.” [Pa.R.C.P.] 1910.19(f). However, [Father] will be released in 2027 if he serves his maximum term, and he can resume working and paying off arrears at that time. Therefore, even if Father was deemed unable to pay because he lacked viable income, the case would continue. Trial Court Opinion, 7/10/2014, at 8. For the following reasons, we find no abuse of discretion with the trial court’s decision denying Father relief on his petition.

First, we agree with the trial court’s analysis that, as Father did not file a written demand with the domestic relations section for a hearing before the court within 20 days following the March 5, 2014 support order, see Pa.R.C.P. 1910.11(f), his only recourse now is a petition for modification. We further agree that Father has not shown any change in circumstances. As the trial court explained:

Because [Father] failed to file for a hearing within the appeal deadline period, the only other legal avenue available to him under the applicable Pennsylvania support law is to have his filing considered by the Court [] as a petition for modification. The requirements for a petition for modification are that the petitioner show a material and substantial change in circumstances. In past petitions [Father] has shown the change in process of commissary items, and the Court has responded accordingly by decreasing the order. In this Petition for redress of grievance, [Father] alleges no change in current circumstance. Trial Court Opinion, 7/10/2014, at 7.

Here, Father simply claims that his prison wage income should not be attached for payment of arrears. However, as already stated, Father may

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not be permitted to benefit from his incarceration to avoid nonpayment of his pre-incarceration arrears. See Plunkard, 962 A.2d at 1231.

Secondly, Father’s argument that prison wages do not constitute income is based upon an Internal Revenue Service tax refund fraud letter that has no application to this matter. We note that the letter does not address the issue of whether or not wages earned by incarcerated inmates are income for purpose of Pennsylvania’s support law.^[7] In fact, the definition of “income” for purposes of support, as set forth in 23 Pa.C.S. §

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4302 of the Domestic Relations Code,8 is expansive and includes items such as wages, compensation in kind, and “any form of payment due to and collectible by an individual regardless of source.” In the instant case, Father’s remuneration for work he does as an incarcerated inmate fits reasonably within Section 4302.9, 10 Therefore, Father’s reliance on the Internal Revenue Service tax refund fraud letter fails. ____________________________________________

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Thirdly, Father’s reliance upon 45 C.F.R. 303.11(b)(5), regarding case closure criteria, is misplaced. As we stated in Father’s prior appeal, “[t]his federal regulation has no application to [Father’s] case.” [M.J.K.] v. [K.J.K], 31 A.3d 751 (Pa. Super. 2011) (unpublished memorandum, at 2), appeal denied, 34 A.3d 83 (Pa. 2011).

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 5/8/2015 _______________________ (Footnote Continued) 10 To the extent that Father, in his brief at page 6, quotes from Justice Eakins’ dissenting opinion in Fisher v. Commonwealth of Pennsylvania, Department of Corrections, 979 A.2d 840 (Pa. 2009), that states “the definition of income is relevant only in calculating support, not in collecting support,” 979 A.2d at 841, we note that in Fisher the Pennsylvania Supreme Court dismissed the appeal as moot. The Supreme Court’s ruling left standing the Commonwealth Court’s decision that the Department of Corrections should use the definition of “income” found in 23 Pa.C.S. § 4302 in deciding what funds were available for withdrawal to pay the inmate’s support obligations. Fisher v. Commonwealth, 926 A.2d 992 (Pa. Comwlth. 2007), appeal dismissed, 979 A.2d 840 (Pa. 2009). - 10 -