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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

PA CHILD ABDUCTED BY FATHER IN SEATTLE – OCEAN CROSSING FEARED

Posted in Custody
Billy Hanson (Age 9)

Missing: Billy Hanson (Age 9)

About a month and a half ago I wrote about parental kidnappings and Pennsylvania’s statute designed to prevent such situations.  Based on numerous reports going back to mid-September, it unfortunately appears that such a situation is occurring right now out of Seattle, Washington.

Around September 12th, Seattle area newspaper blogs and other forums began reporting about a situation involving a nine year old boy and his biological father. Billy Hanson had been visiting his father, Jeffrey Hanson, in the Seattle area during August and was scheduled to return to his mother in Pennsylvania on a September 4th flight. After never getting on the plane, his mother, Joanna Hanson, contacted the authorities and about a week later the FBI issued a federal warrant for his arrest on the charge of international parental kidnapping.

Jeffrey Hanson and his son left a marina in Seattle on or about August 30th and there are reports that they were going to a nearby island, however, at this point and based on other information, the authorities believe he may be trying to cross the Pacific to Tahiti, Hawaii, or travel south to Mexico. Jeffrey Hanson is apparently a competent open sea sailor and his sailboat, “Draco,” is capable of handling such voyages.

It is important to note a fact and allegation relayed in the kirotv.com article by Graham Johnson: (fact) the FBI was not brought into the case until about September 10th, six days after Billy was due to return to Pennsylvania, but too late to issue an Amber Alert, and; (allegation) that a family friend’s concerns about Jeffrey Hanson taking the boy to Tahiti were reported to police and the FBI weeks in advance of the abduction, but were not taken seriously.

Without any information as to whether a Pennsylvania custody order applies to this case, it is difficult to speculate whether the Pennsylvania statute on parental abduction would have served any purpose. More importantly is that at this time the coverage on this case is growing and will hopefully result in Billy Hanson being returned to his mother in Pennsylvania.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

HAGUE CONVENTION ON SUPPORT ORDERS MOVES CLOSER TO RATIFICATION

Posted in Support

Seven years after becoming a signatory state to the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance, Congress passed and the President signed into law implementing legislation which will gives the treaty the procedural rules to operate. The purpose of the treaty is to provide a relatively uniform and consistent process among the signatory states for enforcement of foreign support orders.

The U.S. still has yet to ratify the treaty, though Secretary of State John Kerry points out in the linked press release that the Senate has already given its advice and consent for ratification. Once ratified, the U.S. will need to create an administrative entity to handle the enforcement of the foreign orders. Since the states already have well-established domestic relations units, I would think the main role of any Federal entity would be to simply act as the gateway into the system of registering the Order with the state or local domestic relations unit where the payor resides and utilize the state’s enforcement mechanisms to obtain the support.

We have several expatriate or naturalized citizen clients. Some of their concerns stem from whether their former spouse will reside back in their home country and make the enforcement of things like custody or child support difficult, if not impossible. This treaty, which will hopefully expand beyond the European Union, Ukraine, and some Scandinavian countries, can be an effective tool for ensuring that a parent cannot abandon their financial obligations to their children just by leaving the country.

DAD’S SELF-IMPOSED CUSTODY “TAX” IS ENFORCEABLE

Posted in Custody

It is well established in Pennsylvania that it is against public policy to allow parents to bargain away child support for their children, but what about “taxing” themselves whenever they file a custody action? That is essentially the question raised in the Huss v. Weaver case before the Pennsylvania Superior Court.

The Superior Court ruled in favor of the enforceability of a $10,000.00 payment due to the mother each time the father filed a custody modification action. It is pointed out in an article written by Gina Passarella of the “The Legal Intelligencer” (registration required) that no appellate court had previously deemed a contract addressing custody and visitation to be unenforceable as against public policy. This case blurred the lines at the trial level, however, and while not a child support issue, the trial court nevertheless found that it was similarly against public policy as contracts limiting child support and an unenforceable element of the agreement.

Without knowing the provisions of the custody agreement, any number of explanations can be made for this type of seemingly restrictive aspect of the agreement. It is clearly designed to disincentivize the father from seeking modifications and “lock-in” the terms of the parties’ custody agreement against future efforts to modify, though the court could find no specific language in the agreement articulating that intent. Realistically, the amount is significant enough to discourage frivolous petitions to modify, but not a significant enough obstacle to father (an attorney) to seek modification in the event a modification was absolutely necessary.

The Superior Court could not find any justification to determine the provision to be so restrictive as to prevent the father from bringing an action in court. In fact, the agreement specifically states that the father was an attorney and capable of high level of income and that agreement included language specifically stating that both sides viewed the agreement as “fair, just and reasonable.”

As a consequence of the Superior Court’s overruling the trial court on the enforceability of the clause, they did not explore the merits of her second basis of appeal: that the father was estopped from contesting the enforceability of the agreement when he participated in the drafting and advised the mother that it was legal and enforceable. This would have been an interesting analysis for the court to make since it is a common occurrence for parties to reach agreements on custody without attorneys only to litigate the terms of those agreements months or years later.

This case continues Pennsylvania’s legal tradition of applying contract principles to family law agreements. Notwithstanding provisions that do, in fact, violate public policy, the court is going to give considerable deference to the wishes of the parties as they are articulated in their agreements. Here, the father negotiated and agreed to a clause which cost him $10,000.00 every time he filed a custody petition. Whether that has a chilling effect on his legal rights is a consideration for another time, but in this case, the court was not going to “fix” the agreement that the father co-authored with the mother.

(Photo Credit: www.vibshifting.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

IS COLLEGE PLANNING A CONTRADICTION IN TERMS

Posted in Custody, Divorce, Practice Issues, Support

Today began with a meeting with co-counsel and clients to follow through on matters we had resolved by agreement reached earlier in the summer.  The parties have two children, one of whom is heading into the age of college search.  Our agreements contain some reasonably clear provisions about continuous enrollment, consultation with parents and suitable grade point average.  But today’s subject ventured into the field of funding for college.

The landscape of college planning has become very foggy in recent years.  The conventional wisdom was to start early and make regular contributions to Uniform Minor accounts or to 529 Plans.  The more you saved, the less traumatic the college shopping process would be.

That was then.  This is now.  In today’s discussion when one of the parents mentioned putting money aside for the soon to arrive day of matriculation, I casually noted that having lots of money saved for college might make the applicant a very solid candidate for admission but a very weak one when it came time to discuss what has become known as the “package.”   The package is not something delivered to your door but the array of loans, grants and subsidies for which the admitted student can be eligible.

As I returned from my meeting, I picked up the Wealth Management supplement to the September 22 Wall Street Journal and read an article by news editor Charlie Wells titled “Mistake Parents Make With College Aid.”  If there was a positive note to the article I somehow missed it.  The article begins with the story of a middle aged single mother who looked at her own financial situation and estimated that her son would be eligible for a reasonably substantial “package” at nearby Farleigh Dickinson University in New Jersey.  The mother had the good fortune to remarry a few years ago but did not consider when doing so that her new husband’s financial condition was going to be counted in deciding whether her son (his stepson) would qualify for aid.  As it turns out son finished college but with a huge student debt that probably could have been mitigated had Mother opted to merely live with, rather than marry, Husband #2.

The article then described college aid red flags.  Some are easy.  If your little student inherits from Aunt Tilly in DesMoines while attending college, his inheritance will count against him in terms of eligibility. But suppose a parent gets a great offer on his/her house at the shore and decides to sell, triggering a large capital gain.  Or worse; suppose Father is downsized by his Fortune 500 employer so that he gets a large severance and sees all of his benefits paid out.  Yes, that was a handsome tax return he filed but he’s now 52 and has few prospects for any other comparable employer to pick him up.  A year earlier his daughter might have qualified for a package.  But the sudden and unforeseen distribution of accumulated severance and benefits means too much income is showing for daughter to be an eligible receiver.

Money from grandparents, putting funds in a student’s name, remarriage or even purchase of a pricey car or home can all trigger review and withdrawal of various forms of student aid.  It seems good fortune can cripple you (e.g., inheritance) or bad fortune (e.g, loss of job with severance) could do the same.  So can one really “plan” for college?  Of course the answer is yes but today one must be prepared for a good plan to be spoiled by “events”.

The article suggests that financial aid decisions can be appealed to the conferring institution.  But one does have to wonder how badly a $60,000 a year college financial aid evaluator will feel about cutting aid to a student whose Mother was just cut from a $170,000 a year job with a $400,000 package of severance and benefits.  But if you are among those who is not feeling badly for daughter, the same Journal section features a graph showing that a four year private college now averages just under $45,000 a year.  This means “all in” costs of a private college education are $180,000 after tax dollars. Assuming a marginal income tax rate of 30%, parents have the need to earn $260,000 to pay that $180,000 education bill.  If we take the $400,000 pre-tax severance package and reduce it by 35% because that’s where the new rates take us, $400,000 pre-tax feels more like $260,000 after tax.  So the severed employee can look at his “package” and say “Well, I got my kid’s school paid for and an additional $80,000. That’s roughly six months of income. “

 

A HOUSING TAKE VIEWED FROM ONE STREET

Posted in Divorce, Equitable Distribution, Practice Issues

We periodically report on macro trends in housing prices because our clients typically have a lot of their wealth invested in their homes.  And each time we have a case, one of the questions that comes about is:  Stay or go?

We recently happened upon some data that gives us insight into home values measured over roughly 20 years.  In the early 1990s Toll Brothers began to build luxury homes in central Chester County, about 30 miles Northwest of central Philadelphia and accessible to the city both by train and turnpike.  These were big homes ranging in size from 3100-6300 square feet on lots that were typically one acre.

What was unusual was that we identified seven homes on one street which had sold in the last nine months.  We confirmed that this was not a fire sale caused by the construction of a nuclear plant or abattoir next door.  Moreover the economy of this area is strong with low unemployment.  Median household income in the township where the homes are located ranges near $100,000 per annum.

The homes we examined were all built between 1995 and 1998.  Only one sold more than once during the last 18 years.  So, we looked at what they sold for when built and what prices they commanded in 2013 and 2014.

DATE   SOLD BEDS/BATHS SQUARE   FEET ACRES PRICE 1995-8 PRICE
A.     7/2014 4/4 6300 1        650,000 1995/410,000
B.     7/2014 5/4 4800 2        570,000 1995/435,000
C.     2/2014 5/3.5 5200 1        590,000 1998/335,000
D.     11/2013 5/4 3100 1.2        555,000 1997/341,000
E.    10/2013 4/2.5 4200 1.2        557,000 1996/345,000
F.    10/2013 4/2.5 4500 1        579,000 1995/435,000
G.    10/2013 5/4 3500 1.3        565,000 1995/354,000

 

Four of the Magnificent Seven were sold in 1995 at an average price of $85.50 per foot.  In 2013-4 these houses sold for $124 per foot.  Over 19 years, the average return comes to 2.4%.  This trails the 2.7% average annual increase in consumer prices over the same period.  It rose from 162 to 245 for the Philadelphia region.

The lesson.  In June 1996 the S&P 500 closed at 670.  Nineteen years later it was just over 1600. So where the Toll Brothers manse increased by 1.45x, an index fund would have increased 2.3x.

Now, we acknowledge, you can’t raise a family inside an index fund.

An index fund does not allow $250-500,000 in gain to pass tax free.

And you can’t margin stock 90% anymore when you can still buy a house with less than 10% down.

But houses are not the investment they were from 1950-2007.  We are in a new age where real estate is not high-yield and risk free.  So, think clearly when choosing to keep a marital residence.

 

N.J. CIVIL UNION DISSOLVED BY PENNSYLVANIA COURT

Posted in Divorce, Practice Issues, Same Sex Marriage

Mont Co Courthouse Douglas Muth

This week I obtained a Divorce Decree on behalf of a same-sex spouse in Montgomery County.  What makes this Decree interesting and worth noting is that I believe it to be one of the first examples of a Pennsylvania court exercising full faith and credit to dissolve an out-of-state civil union under the Divorce Code, rather than a marriage.

The parties in this case have been separated for over three years and neither sought any economic damages from the other. After their civil union in New Jersey (which they obtained prior to New Jersey legalizing same-sex marriage), the couple found themselves relocated to Pennsylvania where they separated shortly thereafter. In the media coverage surrounding the marriage equality issue, it is not uncommon to hear of same-sex couples finding themselves in legal limbo after having moved to a non-recognition state. Such was the case of my client who, while wanting to legally sever ties with his spouse, could not relocate to New Jersey or elsewhere for the requisite amount of time to establish residency and file to dissolve the civil union.

The U.S. District Court for the Middle District of Pennsylvania case of Whitewood v. Wolf changed that for him and other spouses in similar situations.

Since the Whitewood v. Wolf case established Pennsylvania’s Defense of Marriage Act as unconstitutional, Pennsylvania joined eighteen (18) other states recognizing same-sex marriage.  Not only did this ruling allow same-sex couples in Pennsylvania to marry, but it also opened up the recognition of same-sex marriages and civil unions legally entered into in other states.

Whenever a court ruling precedes statutory reform, there can be some ambiguity as to how the new law will practically operate. While I had every expectation that a same-sex marriage could receive a divorce, a civil union, while similar in substance, is different in form from marriages.

New Jersey’s “Civil Union Law” is the predecessor to the New Jersey Superior Court decision in Garden State Equality v. Dow, which legalized same-sex marriage. The Garden State Equality builds upon the New Jersey case, Lewis v. Harris, 188 N.J. 415 (2006), which unanimously held that “the New Jersey Constitution guarantees same-sex couples in committed relationships the same rights and benefits as married couples of the opposite sex.”

The Whitewood case established that Pennsylvania needs to extend full faith and credit to the New Jersey civil union and has an obligation to provide a legal remedy for the dissolution of the parties’ civil union. Access to the legal system to dissolve the civil union is what makes my client’s case and those like it so important. Even without a revised Divorce Code, parties can seek redress in Pennsylvania’s family courts to dissolve their out-of-state marriages and civil unions.

(Photo Credit – Douglas Muth)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

DON’T TRY TO AVOID COURT THROUGH A POWER OF ATTORNEY

Posted in Divorce, Practice Issues

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My colleague and long-suffering Mets fan, Robert Epstein, in our Roseland office wrote a blog post in July about an interesting New Jersey case. A litigant to a divorce case tried to have his daughter appear in court on his behalf through an executed Power of Attorney. It is a very interesting attempt at circumventing the Court’s requirement that litigants appear in court. As Bob points out, there are a host of issues which are impacted by using an appointed “attorney-in-fact” in a divorce case: the certification of discovery; being subject to cross-examination, and; lack of personal knowledge of the facts relevant to the case.

The New Jersey decision, Marsico v. Marsico, which is linked on Bob’s blog entry, goes into great detail about the rationale behind denying someone the opportunity to appoint an attorney-in-fact. While the question may be posed as to whether there is any real difference between what a licensed attorney can do on behalf of a client and the powers of an “attorney-in fact,” the reality is that the family court’s often rely upon the parties’ testimony and direct participation in order to assess elements such as credibility or in their reaching a finding of fact. Even attorneys require their client’s to verify pleadings, so it stands to reason that the court would decline to strictly follow an appointed attorney-in-fact and will, instead – and absent exigent circumstances – require direct participation of the parties.

Bob’s blog post gives more detail and is definitely worth taking the time to read.

(Photo Credit: <a href=’http://www.123rf.com/profile_andreypopov’>andreypopov / 123RF Stock Photo</a>)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

PREVENTING CHILD ABDUCTIONS BY PARENTS

Posted in Child Abuse, Custody, Practice Issues

Child abduction

Though I could count the instances on one hand, I have had a few cases in my career where a client had a legitimate concern about their former spouse or their child’s parent attempting to abduct the child. Usually this fear stems from long-standing threats designed to leverage access to the child against some financial demand. In those instances, the demand related to issues surrounding child support: either the filing for it or expenses related to the child. Fortunately, nothing ever happened and the fear subsided.

Based on data from the FBI, 76% of kidnappings are perpetrated by a family member or acquaintance. When you consider that the majority of kidnappings are by someone known to the child, however, it is not an unreasonable fear and one justifiably addressed by the state through specific laws to deal with the person the child knows best: their parent.

In 2010 (and updated and expanded in 2014), Pennsylvania enacted the Uniform Child Abduction Prevention Act to codify measures to identify and address parent abductions. This act is found within larger Domestic Relations Code and is part of the custody statutes (23 Pa.C.S.A. 5201 et al.). The act provides emergency, ex parte relief to a party whose child has been abducted and helps identify at risk cases.

It also offers specific factors which support the risk of abduction. Previous attempts are obviously a good indicator of the likelihood of a future attempt, but the statute also identifies behavior such as abandoning employment, selling a residence or terminating a lease, closing bank accounts or otherwise behaving like someone about to leave the area. It also cites the risk posed by a parent who has few ties to Pennsylvania or the United States. The latter being particularly important because a citizen of a country which is not a signatory state to the Hague Convention on the Civil Aspects of International Child Abduction or the other Hague Conventions addressing international child custody can be shielded from U.S. court orders or attempts to seek recognition of the U.S. custody order in that country. Consequently, the local judiciary, laws, and customs can make retrieving a child extremely difficult, if not nearly impossible.

Utilizing this statute will allow a party to obtain very specific abduction prevention conditions, restrictions on the other party, and limitations on custody and visitation. It is a powerful piece of legislation, and one not lightly entered into. In short, a parent has a tough burden to have this statute applied to their case, but if the facts justify it, they will have strong safeguards against abduction.

There are some other, non-Act measures that parents can use to limit the risk of parental abduction, particularly where the other parent is a citizen of another country or holds a foreign passport:

1.         The State Department’s Children’s Passport Issuance Alert Program. If a parent tries to obtain a passport for their child, the program will notify the other parent and they have the opportunity of preventing the international travel.

2.         Bonds. Requiring that the other parent post a bond prior to their custodial time with the children will serve as a preventative measure, financial leverage against withholding the child, and, if the parent does not return the child, financial resources to pursue litigation in the foreign country. Again, this measure contemplates international travel, but it could be applied for domestic travel, too, if the geographic difference is great enough or the facts justify it. I have had it successfully applied to international cases, particularly a case involving a Russian national. Russia was not a signatory to the child custody Hague Conventions for a long time, thus making a bond a valuable deterrent and possible source of funds for my client if the children’s father did not return the children after his custodial time in Russia. Considering the international state of affairs between the U.S. and Russia, Russia’s subsequent adoption of the Hague Conventions does not alleviate the need for this bond for the foreseeable future. The source of the bond needs to be readily accessible and releasable to the parent.

3.         Local Police Department. Custody orders are Court Orders, but do not expect a local police force to enforce your custody schedule. There is a huge difference between contempt of a Custody Order and parent abduction and the police will expect you to use the judicial system to deal with contempt. That said, IF there is a legitimate concern about the health and well-being of the child or the location of the child, the local police can be a resource to do a spot check to ensure the other parent is residing where she claims to reside and the child with is with her. I cannot stress enough how the police should be judiciously and cautiously used; if you are ready to use the police, you should have already talked to an attorney and in the process of pursuing a court action based on the facts of situation.

Parent abductions are a scary thought, but despite how remote they may seem, a reality. The Uniform Child Abduction Prevention Act provides the mechanism for minimizing that risk for those most extreme of cases.

(Photo Credit: www.yoursdp.org)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

 

SUPERIOR COURT DECLARES WHEN “FULL CUSTODY ANALYSIS” IS REQUIRED.

Posted in Custody

A Superior Court decision reported last month lends new insight to questions of what kind of record lawyers and judges must make in a child custody case.  The requirement of a thorough record has been a mainstay of appellate law for many years but the landscape shifted somewhat when the General Assembly passed its latest custody statute, effective in 2011.

In S.W.D. v. S.A.R., the Armstrong County court had issued a custody order following a hearing in January, 2010.  Mother was awarded primary physical custody and Father had partial custody two nights per week and every other weekend from Friday evening to Sunday evening.  Legal custody was shared.  The parties appear to have informally adopted a 5-2-2-5 schedule without court involvement in September, 2012.

During the Spring, 2013 Father filed a Petition for Special Relief to (a) resolve a dispute over where the child would begin kindergarten and (b) obtain judicial approval of the revised custody schedule.  The parents disagreed about the appropriate school enrollment.  After hearing testimony the Court decided that Mother’s public school selection was more appropriate than Father’s private school choice.

Turning to the question of changing the old custody schedule, the Court noted that the parties are free to modify the order as they see fit.  But the trial court saw “no evidence to suggest that the current 5-2-2-5 schedule” was an improvement over the prior court order.  Accordingly, the request was denied unless the parties agreed.

Father appealed the Order.  The core question from the appellate court’s view was when is a complete analysis of the sixteen plus factors dictated by the Custody Act required.  In assessing that matter the Court turned to the statute’s language where it says the factors must be considered when “ordering any form of custody” 23 Pa. C.S. Sec 5328(a).

In this case, the Court held that where the questions before the Court do not “change the form” of the custody schedule, a petition for special relief is appropriate and courts need not perform the complete statutory analysis.  Thus, in this case, the school enrollment question was not one where complete analysis was necessary.  But, the Court noted that where the geographic location of a school necessitates a change in the “form of custody” (i.e., modification of the schedule), then the statutory analysis is required.  Here, the competing schools were within manageable driving distance for both parents.  Thus, issues like school enrollment, extracurricular, foreign travel and other legal custody decisions may not require comprehensive hearings.

The next piece of the case is more telling.  The Superior Court reversed the denial of the Father’s request to change to the 5-2-2-5 schedule because this was a change in the form of custody and required a complete analysis of the seventeen factors.  Note that the Court imposed schedule had awarded father two weeknights and alternate weekends.  Assuming that Father had two weeks of vacation and a split of roughly 10 holidays, he was in the range of 171 overnights per year. Obviously 5-2-2-5 is shared physical custody.  The difference in time between the schedules was a matter of 3.1%.[1]

The decisive utterance:  “We hold that a trial court must apply the Section 5328(a) factors and issue a written explanation of its decision when it orders any of the seven forms of custody provided for by the Act.” Those forms include any kind of legal or physical custody arrangement.  The case was remanded for that analysis to be provided.  The decision related to the school enrollment was affirmed.

The implications of this decision are quite broad.  Litigants commonly work with a custody schedule either by agreement or judicially imposed and then decide they want a court to modify it.  In this case, the modification appears to involve a relatively insignificant amount of time.  But the appellate court is still insisting on a full record and a full opinion for what some would call a “tweak” in the schedule.

Many counties have adopted practices where Court appointed hearing officers customarily hear these kinds of proposed changes without a record proceeding and make “recommendations” to the trial court.  This decision would also appear to deal a blow to those procedures where temporary modifications are made without hearings. Citing two other recent Superior Court cases, this panel holds that:  “Mere recitation of statute and consideration of the Section 5328 factors en masse is insufficient. C.B. v. J.B. 65 A.3d 946,950 (Pa. Super, 2013).  A trial court’s failure to place its reasoning regarding the Section 5328(a) factors on the record or in a written opinion is an error of law.  J.R.M. v. J.E.A. 33 A.3d 647,650 (Pa. Super. 2011).” Moreover, the factors must be not only listed but applied to the facts.  M.P. v. M.P., 54 A.3d 950, 955-56 (Pa. Super. 2012).

So here we have a case where the Court imposed nearly equal custody after a full hearing in 2010.  The parties “experimented” with an equal custody plan and one of the parties sought to have the Court adopt it.  The trial court found there was no real advantage and rejected it while acknowledging that it could be agreed to.  The Superior Court responded by stating that the trial court erred in rejecting the equal custody arrangement; insisting that whether it affirmed the former arrangement or adopted the new “equal” plan, there needed to be a complete written analysis applying the facts to the statute.  No tinkering here, thank you. As the Sinatra standard begins, it’s “All or Nothing at All.”

S.W.D. v. S.A.R.  2014 Pa. Super. 146          

              

 

 


[1] Note that the precise terms of the 2010 schedule are not part of the case report.

“OTHER” HOUSEHOLD INCOME JUSTIFIES SUPPORT ORDER DEVIATIONS

Posted in Support
What You Imagine Happens to Your Ex-Wife

What You Imagine Regularly Happens to Your Ex-Wife

 

Among some of the more frustrating situations I have seen clients deal in their cases is the presence of “other money,” usually in the form of a new spouse or the other party’s parent who contributes money which isn’t considered “income” under Pennsylvania’s Support Guidelines and, therefore, not included in determining the receiving party’s net income available for support. In other words, the court will not necessarily consider an ex-wife’s rich new husband when determining the child support obligation.

For as much as child support obligations are determined by the support guidelines, there is still an element of evaluation and assessment which may occur by the court under Pennsylvania Rule 1910.16-6. This rule deals with “deviations” to the guideline support amount.

Rule 1910.16-6 identifies nine areas for deviations:

1)         Unusual needs and unusual fixed obligations;

2)         Other support obligations of the parties;

3)         Other income in the household;

4)         Ages of the children;

5)         The relative assets and liabilities of the parties;

6)         Medial expenses not covered by insurance;

7)         Standard of living of the parties and their children;

8)         In a spousal support or alimony pendente lite case, the duration of the marriage from the date of marriage to the date of final separation; and

9)         Other relevant and appropriate factors, including the best interests of the child or children.

For the purposes of this discussion, I am going to address “other income in the household.” There is not a specific definition of “other income” in the support guidelines, but that actually serves as an advantage to litigants because it frees them to argue for the specific facts in their case which justify a deviation under this section.

The main case which is referenced for “other income in the household” is a 2009 Pennsylvania Superior Court case, Silver v. Pinskey, which considered the children’s social security derivative benefit as income. The parties had 50/50 custody of the children and the designated payee of the social security benefit had been changed from mother to father at some point.

The Court first undertook a support calculation and determined that Husband’s support obligation was $0.00. However, due to the receipt of this income in the form of the children’s social security derivative benefit, he was ordered to split the derivative benefit with mother.

Husband argued, unsuccessfully, that federal statutes precluded the inclusion of this benefit for child support purposes, but the trial court felt that his receipt of this income in his household justified the deviation. This made sense considering the parties were equally sharing custody of the children.

Later, in 2010, Rule 1910.16-2(b)(2) was amended to deal with social security benefits made to a child, but that does not change the methodology behind the Silver Court’s decision to develop a justification under Rule 1910.16-6 to reach the outcome it deemed appropriate. The Court did not consider father’s receipt of that benefit as the designated payee to be something he should retain to the exclusion of mother. The parties were, theoretically, spending equal time and money with the children; father’s retention of the children’s benefits would have constituted a windfall to him.

This is a very narrow case, but based on the language of the rule and the discretionary nature of support deviations, it is possible that any number of forms of “household income” could justify a deviation. It is difficult to assess with any certainty how a spouse’s income would impact the other spouse’s support case, but it is clear that the courts are prepared to hear argument on those facts and consider whether there is sufficient justification to deviate from the guideline support order. The most important part is to be prepared to offer substance to the argument to give the Court the room it needs to articulate a clear and justifiable reason to deviate from the support order.

 
(Photo Credit: www.kenlauher.com)
 
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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.