Appeal from the Order February 19, 2008, In the Court of Common Pleas of Butler County, Domestic Relations Division at No. 25086.
The opinion of the court was delivered by: Popovich, J.
BEFORE: KLEIN, POPOVICH and FITZGERALD*fn1, JJ.
¶ 1 Melissa L. Plunkard (Mother) appeals the order entered on February 19, 2008, in the Court of Common Pleas of Butler County, that granted the petition of John L. McConnell (Father) to terminate his support obligation for their minor child (Child), pursuant to Pa.R.C.P. 1910.19(f). Upon review, we reverse in part and remand.
¶ 2 The relevant facts and procedural history of this case are as follows. Mother gave birth to Child on August 25, 2000. Father and Mother were not married at the time of Child's birth, and they are not presently married to each other. Father's current support obligation to Child is $275.00 per month, and he is in significant arrears. Father was convicted of numerous criminal offenses and has been incarcerated since 2003. He is currently serving a 6-12 year sentence at the State Correctional Institution at Mercer (SCI-Mercer) for charges of aggravated assault, endangering the welfare of children, and simple assault. Father will be eligible for parole on December 6, 2008.
¶ 3 On February 22, 2007, Father filed pro se a petition for modification and termination of his support obligation. Within the petition, Father claimed that he was entitled to the termination of the support obligation and remittitur of the pending arrears because he was incarcerated, lacked income or assets, and was unable to pay the obligation for the foreseeable future. The domestic relations officer recommended that Father's petition should be granted, and the trial court adopted the domestic relations officer's recommendation by order entered November 5, 2007. Mother filed a petition for trial de novo, which occurred on January 30, 2008. Thereafter, on February 19, 2008, the trial court entered an order terminating Father's support obligation pursuant to Pa.R.C.P. 1910.19(f).*fn2 Mother, in turn, filed a timely notice of appeal to this Court, and, pursuant to the trial court's order, a timely concise statement of errors complained of on appeal. Thereafter, the trial court authored an opinion that adopted its February 19, 2008 memorandum as its response to the issues presented in Mother's concise statement.
¶ 4 Mother presents the following issue for our review:
Whether the [trial court] erred in granting [Father's] motion for modification of an existing support order terminating the charging order for support and remitting all arrears[?]
¶ 5 Initially, we note that our standard of review over the modification of a child support award is well settled. A trial court's decision regarding the modification of a child support award will not be overturned absent an abuse of discretion, namely, an unreasonable exercise of judgment or a misapplication of the law. See Schoenfeld v. Marsh, 614 A.2d 733, 736 (Pa. Super. 1992). An award of support, once in effect, may be modified via petition at any time, provided that the petitioning party demonstrates a material and substantial change in their circumstances warranting a modification. See 23 Pa.C.S.A. § 4352(a); see also Pa.R.C.P. 1910.19. The burden of demonstrating a "material and substantial change" rests with the moving party, and the determination of whether such change has occurred in the circumstances of the moving party rests within the trial court's discretion. See Bowser v. Blom, 569 Pa. 609, 807 A.2d 830 (2002).
¶ 6 In a typical case, arrears can be modified retroactively only during the period in which a petition for modification is pending. See 23 Pa.C.S.A. § 4352(e). Title 23 Pa.C.S.A. § 4352(e) states the following:
(e) Retroactive modification of arrears.--No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of the emancipation of the child for whose support the payment is made.
¶ 7 In the present case, Father sought modification of his support obligation and retroactive modification of his support arrears for the entire effective period of the award based upon evidence that he was incarcerated and that he was without sufficient income or assets to meet his child support obligation until released from prison. Until recently, the mere fact of a parent's incarceration was not considered by the Courts of this Commonwealth to be a "material and substantial change in circumstances" that would provide sufficient grounds for modification or termination of a child support order. See, e.g., Yerkes v. Yerkes, 573 Pa. 294, 307, 824 A.2d 1169, 1177 (2003). The basis for this principle was that incarceration, as opposed to institutionalization, results from intentional criminal conduct that results in a conviction and, therefore, was analogous to an obligor who voluntarily diminishes their income in an attempt to avoid a support obligation. Id., at 307, 824 A.2d at 1177. However, on May 19, 2006, Pa.R.C.P. 1910.19 was amended to include the following subdivision:
(f) Upon notice to the obligee, with a copy to the obligor, explaining the basis for the proposed modification or termination, the court may modify or terminate a charging order for support and remit any arrears, ...