El Moursi, K.M. v. Al-Amin, J.
364 EDA 2016
| Pa. Super. Ct. | Oct 26, 2016Background
- Mother (German citizen) filed a child support complaint on June 19, 2015 seeking retroactive support for two now-adult children for periods when they were minors; children were ages 23 and 24 at filing.
- Parents married in 1990; Father was arrested/convicted in Germany in 1992, deported to the U.S., and thereafter resided in Philadelphia from 1995 onward.
- Mother testified she attempted to locate Father in Germany (contacting German authorities in 1995 and notifying them when she moved) and received German welfare; she did not obtain Washington divorce or pursue sustained child-support enforcement in the U.S. until 2009 and filed in 2015.
- Father testified he returned to the U.S. in 1994, lived in New York briefly, then Philadelphia since 1995; he paid support for a different child in Washington through wage garnishment until 2013 and was located via Facebook by the children in 2010.
- Trial court denied retroactive relief, finding no statutory authority to make an original support order retroactive before the filing date, and concluding Mother failed to prove a compelling reason (e.g., disability, misrepresentation) to justify pre-filing retroactivity.
- Superior Court affirmed, holding Rule 1910.17(a) and related statutory interpretation preclude retroactivity earlier than the complaint date for initial support complaints; equitable arguments did not overcome the rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may order retroactive child support to a date before the filing of an initial support complaint | El Moursi: Rule 1910.17 and equity permit retroactivity before filing where Father’s whereabouts were unknown and Mother faced language/foreign-law barriers | Al-Amin: No authority supports making an original support order retroactive prior to filing; Rule 1910.17 limits retroactivity to the filing date absent modification petition | Court: Denied; original complaints cannot be made retroactive before the complaint date; Mother failed to show "compelling reason" to override rule |
| Whether Mother’s inability to locate Father or other hardships justified equitable pre-filing retroactivity | Mother: Deportation, incarceration abroad, language/geographic barriers and delayed notice justify an equitable remedy | Father: He was reachable (contacts, family in Philadelphia, past child-support garnishment, online presence); Mother did not promptly pursue support after learning whereabouts | Court: Credibility findings favored Father; Mother did not promptly file when she learned location and did not prove disability/misrepresentation to preclude filing |
| Whether Rule 1910.17(a) was misapplied or can be interpreted to allow earlier retroactivity | Mother: Rule should allow equitable flexibility to prevent unjust results | Commonwealth/Trial Court: Rule and statutory scheme clearly limit retroactivity for initial complaints to filing date; only modification petitions permit pre-filing retroactivity in narrow circumstances | Court: Rule 1910.17 properly interpreted/applied; trial court did not abuse discretion |
| Whether factual findings about efforts to locate Father were supported and whether trial court abused discretion | Mother: Trial court ignored evidence of searches and barriers | Father: Testimony and documentary indicia showed contactability (returned mail, Facebook, paid other child support) | Court: Accepted trial court credibility determinations and found evidence insufficient to justify pre-filing retroactivity; no abuse of discretion |
Key Cases Cited
- Samii v. Samii, 847 A.2d 691 (Pa. Super. 2004) (standard of appellate review for support orders and abuse of discretion)
- Hogrelius v. Martin, 950 A.2d 345 (Pa. Super. 2008) (deference to trial court credibility findings)
- Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296 (Pa. Super. 2001) (trial court’s province to weigh witness credibility)
- Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003) (appellate court may not usurp factfinder’s role)
- Mackay v. Mackay, 984 A.2d 529 (Pa. Super. 2009) (standard for reviewing child-support and modification decisions)
- Pfeifer v. Cutshall, 851 A.2d 983 (Pa. Super. 2004) (initial support orders cannot be made retroactive to periods when no order existed)
- Bowser v. Blom, 766 A.2d 1259 (Pa. Super. 2001) (retroactivity rules tied to dates of filings/complaints)
- Christianson v. Ely, 838 A.2d 630 (Pa. 2003) (retroactivity of support orders linked to pendency of complaints)
- Sutliff v. Sutliff, 489 A.2d 764 (Pa. Super. 1985) (discussion of retroactivity and reasons for denying retroactivity on the record)
- Crawford v. Crawford, 633 A.2d 155 (Pa. Super. 1993) (trial court should state reasons when denying retroactivity to complaint date)
- A.S. v. I.S., 130 A.3d 763 (Pa. 2015) (equitable imposition of support when party sought parental rights and duties)