On September 9, 2016 the Pennsylvania Supreme Court ruled that portions of the current child custody law were an unconstitutional interference with the fundamental right of parents to raise their children in accordance with their own standards and beliefs. It involves some unusual facts and a quirky portion of the custody law defining when grandparents have standing to seek an award of partial physical custody.

The section in controversy, was enacted in 2010. It relates only to requests for partial custody. In D.P. and B.P. v. G.J.P. and A.P., the mother and father of the subject children had separated for more than six months but no divorce action had been filed. Referencing Section 5325(2) the grandparents brought their action for partial physical custody of the children. Both mother and father filed a motion to dismiss this action asserting that they jointly objected to such an award. The trial court in Westmoreland County considered the objections and, citing the US Supreme Court’s 2000 ruling in Troxel v. Granville, determined that because this was an interference with parental custodial rights deemed fundamental as a matter of law, the statute conferring these rights was subject to strict scrutiny. 530 U.S. 57,65. Under that standard, the state had a duty to demonstrate a compelling need to legislate in this area and the grandparents had failed to show the state had met that standard in crafting Section 5325(2). The only statutory threshold to invade the fundamental rights of the parents to raise their children without interference was a separation of six months. The Court noted that this case involved no assertion that the children were not adequately cared for or that there was other reason for legislative action to protect the children.

The trial court ruling was immediately appealed to the Supreme Court which heard argument in early April. In an analysis by Chief Justice Saylor, the high court concluded that in circumstances where a parent was deceased (Sec 5325(1)) or where a child had actually lived with a grandparent, there was a compelling basis for state action. But, where, as here, the parents actually agreed that grandparent custody was not in the child’s best interests, the state had no basis to interfere with that determination. The majority decision was careful to restrict the holding to cases where parents had separated, appearing to preserve the right of grandparents to make custodial claims once a divorce was filed. Dissenting opinions by Justices Baer and Wecht argue that this distinction was not sustainable under a strict scrutiny standard as the existence of a divorce filing was not more a basis to warrant judicial intervention in family affairs than a separation of six months.

This is an interesting crack in the door and one which invites eventual removal of the door. The dissents ask questions such as: suppose the parents disagree about grandparent visits or file for divorce? Is the door now open? Suppose the parents never did marry or even live together? This heads into even more controversial territory which is fast coming upon us. Who is a parent for purposes of custody and support? Genetic testing affords us the ability to determine this in a biological sense. But we have started to see more and more cases working around adults acting in some form of loco parentis. Obviously, grandparents and, according to the statute great grandparents have their own rights. In a world where “parents” move freely from one relationship to another and children often “attach” to these adults, is there a limit to how many participants can be involved before it becomes clear that the litigation is itself a harm to the child? This is a question which was not before the court but it looms larger every day.

D.P. and B.P. vs. G.J.P. and A.P.     Journal-53-2016             25 W.A.P. 2015   (9/9/16)

 

This author is not much for the world of Hollywood although this law firm does have an office there. But in reviewing the general news of the day, the screen divulged that the divorce involving Halle Berry and Olivier Martinez is now on hold, nine months after that party started.

This is a new phenomenon affecting the ordinary world as well. We have several cases where the parties have either found a reason to stop the presses of divorce filings or just take a pause to refresh.

In olden times, like the 20th century, a break in the action was very rare.  Once a split occurred both parties tended to pound away until the case was either litigated or settled.  There was no “Finland” or Christmas 1914 when soldiers from the Allies and Axis gathered to sing “Silent Night”.  But today, people are doing a better job of taking stock in the havoc that divorce can wreak and sometimes they realize that things were not as bad as they seemed or that the man or woman who may have enticed a separation was not “the best” or even “better.”

The problem with a break is a financial one. For people securing divorce, trust levels are low and the job of the lawyer is to identify the assets that existed at or about the time of separation and make certain they don’t disappear.  That can be hard enough to do when the couple are unhappily split but when they re-unite only to divide once again, it is the task of the lawyer and the forensic accountant to make certain that during the Summer of Love or reconciliation no one stole or dissipated the assets to be divided.  In many instances as well, reconciliation prompts decisions to buy a new home or to take the dream vacation that the couple always wanted.  If the marriage survives, the couple can typically absorb that financial wave.  But if things don’t work out, the financial burdens are now greater and, as we all know, houses can’t be split down the middle.

So if you decide to take a break either from exhaustion or out of renewed affection, just be certain to keep it real and maintain very careful records of your assets and expenses.

One other note. There certainly was plenty of news during the Johnny Depp/Amber Heard controversy that erupted this spring with allegations of physical violence.  What made this matter all the more interesting is the fact that for both participants there was a lot at stake.  Here were two people with enormously lucrative star power whose agents no doubt grimaced when the abuse case was filed.  The risk was that either or both would be found to be violent or dishonest in their statements as to what occurred.  The public tends to be tolerant of what celebrities do but no one ever got a lucrative role for unsocial behavior.  Although there was a dust up at the end about “how” Depp paid the settlement, the end was otherwise peaceable and the brand names remain bankable.  Even real world clients need to realize that while there is undeniable power in getting out the whole truth that truth can come with very drastic consequence.

We have written before about the subject of when and how a person can be in “contempt” of a court order. The word itself is riddled with often misunderstood meaning.  What could be worse than having a court decide that you are contemptible?

In the past week I have been called to court to prosecute or defend two of these cases. The first instance involved a request to find my client in contempt of a custody order.  The court where the matter was heard summons people to a non-record hearing where a hearing officer either recommends or denies a request for a finding of contempt.  The hearings are scheduled one per hour and if you don’t like the recommendation you take an appeal and have a record hearing before a judge.  The typical remedy of make up time for lost custody, an award of $118 in costs and a $200-300 fine makes it such that the game is not worth the candle.  I recommended to my client to do what he wanted as Step 1 would cost $1000-2000 in attorney time and an appeal would consume that much and more.  Who wins contempt proceedings?  Almost without exception it is the party who has superior financial resources. The litigant with $50,000 in net earnings has twice the staying power of the one making $25,000 and the remedies are pathetically weak.  So if you want to exhaust your opponent financially, spurious or weak contempt proceedings and appeals are a great way to win a custody war by attrition.

This week was a petition to enforce a prior court order in divorce. I had the enforcing side and the spouse had been held in contempt on at least two prior occasions for ignoring an order to sell a house. The most recent petition was filed after the house was finally sold while in foreclosure and the actual damages could be calculated and assessed as the hemorrhaging had ended.  The petition to assess the damages had been filed almost 90 days earlier but, the Respondent waited until the day before the hearing to retain counsel.  That begot a request for a continuance to prepare.

My newfound opposing counsel is resourceful. As I anticipated she came to court ready to challenge every paragraph of the petition and to assert defenses that might have had some traction two or more years ago but were effectively waived by the fact that they should have been raised in prior proceedings.  But in contempt court the rules work to the advantage of the party who plays games.  You see, they are entitled to a specific pleading setting forth how they violated the court’s orders.  Do they have to specify their defenses?  Not in Pennsylvania.  The joke is on the party seeking to enforce the order because the responding party needs to do nothing except appear in court on the appointed day. So in my case, we killed three hours of time while new counsel asserted defenses and demanded “proofs” never before articulated.  In candor, some of them had merit.  But whether the defense arguments were good, bad or indifferent, the party prosecuting the contempt never gets to see or hear about them until the case is called.  The cost of preparing a contempt hearing is always unnecessarily high because the person prosecuting the case has to conjure what the defenses might be.  Why force a party to explain why he or she disobeyed a court order or put in writing the reasons their conduct did not violate the order?  That would be efficient.

Then we get to the remedies. In under Section 3502(e)(7) a divorce setting you can at least claim attorneys fees.  But what about damages caused by a party’s refusal to comply with a court order?  You won’t find that remedy in the statute.  Support law is even worse.  Section 4345 allows 180 days of county subsidized imprisonment, a fine not to exceed $1,000 which is payable to the Court and up to a year of taxpayer funded probation.  You have to go to Section 4351(b) to get reasonable fees and costs and you have to prove the obligor did not have good cause for his failure to comply.  Once again, burden is not on the person with the duty to comply but on the person supposedly benefiting from the award.  Custody violations are covered by Section 5339 and impose the same standard as 42 Pa.C.S. 2503.  The action must be obdurate, vexatious, repetitive or in bad faith. Pa.R.C.P. 1915.12’s notice for hearing makes no reference to counsel fees as a remedy which, of course, creates a due process problem in its own right should an award be made.

The statute and the rules need to make it clear that failure to obey costs money and lots of it. The sanction of a fine or award for failure to comply should be monetary and have a temporal element. When the message gets out that failure costs $25 a day or $250 a day, people will pay attention.  Putting parents and divorcing people in prison or on parole only punishes the taxpayer without corresponding benefit to the innocent party victimized by the non-compliance.  But the starting point is to force litigants to frame the issues in writing before anyone enters the courthouse.  It takes what is supposed to be a pointed procedure and dulls it beyond recognition.

Last week Newsweek published its annual rankings of America’s Top High Schools.  This is a much awaited publication for those with children of that age and it is undoubtedly well circulated in the admissions offices of our colleges and universities.

These compilations also commonly hit the family lawyer’s desk whenever there is a hot dispute over primary custody or relocation. In reading the recent history of relocation cases, the decided focus of Superior Court cases is on the matter of how the relocation benefits the child and in many instances we are given these rating compilations by custody litigants who want to show that a new school would be “better” for the child or the present placement is “fine.”

Many judges and hearing officers deciding these cases will admit these magazines “for what their worth.” Technically, there are myriad evidentiary problems with any “ranking.”  The content of the magazine is itself hearsay.  The person making the statement that “Quaker Valley is the 271st best high school in the nation.” is not a named person at all.  It is a magazine.  So we don’t know the identity of the person who decided that Quaker Valley was No. 271 while Penncrest was No. 276.  We also don’t know the specifics of how this was decided.  The article will tell you about general parameters employed such as college matriculation and graduation rates and average SAT scores.  But the typical editors who do the ranking don’t tell us how these metrics are weighted or whether a planetarium is a plus while a ceramics kiln is neutral.  Lawyers who stand up and object to the admission of these rankings have excellent reasons why the objection should be sustained and most law school professors would harshly grade any student of Evidence who would admit “speculative hearsay compiled without ascertainable scientific foundation.”  Of course you could subpoena the editors of Newsweek to explain all of this but, alas, they rarely come to court.

What really happens? Most judges this author has seen will admit the document over objection noting that the actual “value” of this as evidence is not easily ascertained.  I suspect they then lug the magazine back into chambers and scan it first to see whether their high school got in.  Then they will glance at the schools the litigants want to compare and spend a couple of minutes seeing what data there is that they can assess (e.g., grad rates and SAT scores).  Because, even they realize that Newsweek and other magazines of its ilk don’t really spend the other 51 weeks of the year studying America’s 18,000+ high schools. Americans love rankings of all stripes and a magazine’s job is to amuse its audience.

The other thing that happens in chambers after the dust of a school enrollment fight settles is lamentation. I suspect that what most judges would privately tell the litigants is that if they truly wanted a positive outcome, the best thing two parents could do would be to agree on a school placement and support the child together in that placement.  For most children a custody war is a diversion from life and education over which they have no control.  In many instances it is clear that No. 36 ranked Conestoga High School is a superior school to No. 168 Fox Chapel.  But outstanding kids from Fox Chapel go to Harvard too and in the vast majority of custody disputes, Harvard is not really on the horizon.  There are always special cases where a child has really unique gifts (not as much as their parents think) or special educational challenges where a special educational “fit” is called for.  But, most judges grade on the “curve.”  They are not trying to raise young venture capitalists or nuclear physicists.  They want children who will not commit crimes and pay taxes when they grow up.  Judges get to see plenty of adults who are very bright but never mastered the “no crimes” or “pay taxes” thresholds of adult life.  So often they are put off by parents who think that a child custody trial is a sound means of securing maximum educational achievement.  Parents are often disappointed to discover that “The judge doesn’t seem to care.”  Ironically, judges do care, but from their elevated view on the bench they often see quite clearly that moving a child from No. 284 Haverford High to No. 126 Kiski will not vastly improves the chances for post grad studies in math at Stanford.

The ratings wars will go on because we love quick answers to complex questions. And if you have a custody case where you want to enroll Eloise in No. 113 Upper St. Clair while the useless father wants to keep her at a school that doesn’t even have a ranking, be certain to get the August 11 edition of Newsweek and bring it to Court so the judge can see that you are a concerned parent.  But don’t bet the down payment on a house in western Pennsylvania on the belief that the magazine is your ticket to a new life in a new town.  It’s not how the cookie crumbles.

In recent years much has been written about the “marriage penalty” when it comes to federal income tax. As a group known as the Tax Foundation states it “An unmarried couple with equal incomes that earn a combined $300,000 would have a total tax bill of $83,232.50 ($64,374.50 from the individual income tax and an additional $18,858.00 from the payroll tax).  If they were to get married, they would be hit by a marriage penalty of $3,806.50.  The penalty has declined in significance over recent years but it still exists.

A year ago the US Court of Appeals for the 9th Circuit (i.e., the west coast) decided Voss v. Commissioner.  Voss and his life partner Sophy owned a house together on which there was a jumbo mortgage exceeding $1,000,000.  Section 163(h)(3) of the Internal Revenue Code limits home mortgage interest deductions to those attributable to not more than $1,000,000 in mortgage debt if used for acquisition and $100,000 of home equity loans.  The purpose of this law was to capitate home mortgage deductions for the wealthy and, in the case of the home equity cap to discourage people borrowing against home equity to fund activities unrelated to savings.

Personal interest is generally nondeductible. The government allows interest on qualified residences to be deducted with qualified residences being up to two taxpayer’s homes, each being used as a residence.  The statute also states that individuals filing separately are limited to $500,000 each and $50,000 in the case of a home equity loan.

Taxpayer Voss and his partner Charles Sophy who are registered domestic partners under California law. And, together they own two homes with mortgages for which they are jointly liable.  For the tax year involved, their mortgages and home equity debt were about $2.7 million and were recorded on their primary residence in Beverly Hills.  They filed income tax returns separately for the tax years involved and each claimed averaging about $90,000 per annum.  The IRS reviewed the returns and assessed tax premised on the conclusion that any interest associated with debt above $1.1 million ($1 million acquisition and 100,000 home equity) was not deductible.  Messrs. Voss and Sophy filed in Tax Court asserting that the $1,100,000 limitations were not calculated per “residence” but per tax taxpayer.  The Tax Court agreed with the IRS and upheld the limitation on interest to $1.1 million.  But in a decision premised upon the express language found in Section 163 (h)(3) the US Court of Appeals held that the limitation is per taxpayer.  The Court notes that this is probably not what the Congress intended but it is what the statute says and, as such, the clear language trumps legislative intent.

The decision was rendered on August 7, 2015 and undoubtedly, the IRS has hoped that the Congress would adopt a technical amendment to correct this. But, that amendment has not been adopted and on August 1, 2016 the IRS issued something called an AOD (Action of Decision: 2016-2) stating that it accedes to this approach to home interest deductibility until Congress adopts a statute saying otherwise.  So big mortgage deductions for couples not filing jointly are there to be had until Congress finds the time and energy to close the door.

Voss v. Commissioner    796 F3d 1051 (9th Cir. 2015)

Listen to the rhetoric of any political campaign and you will hear the familiar refrain. “Family business is the backbone of the American economy.”  Factually, true enough but history has taught us that families that play together don’t always stay together.  So here is the common scenario: a couple forms a business. They do it on the dining room table of their first apartment and without thinking about any consequence, husband takes 80% of the stock and gives wife 20% because she is going to do the books and scheduling the appointments. Or perhaps they do it 50/50.  But as time evolves one spouse clearly becomes the “active” manager and the other moves on to other things.  The business grows and today the board room of the business is 4x the size of the dining room it was started in.

You represent the “outsider” spouse. She owns 20% of the business and you ask for the tax returns and other related documents in modest proportion.  You are ignored.  You ask her to contact the family accountant who now does the accounting she once did and when she asks them for the same records, she is ignored.

You can always file motions to compel in family court. Sometimes effective; sometimes not. But there is another avenue worthy of consideration.  You not only represent a spouse, you also represent a minority shareholder who has statutory rights under Pennsylvania’s business corporation law.

That law does a better job of defining rights than anything we have in the Divorce Code, where the business involved is not already required to file disclosures under federal and state law with securities regulators. For example, every shareholder has the right to annual financial statements including income statements and balance sheets.  They are to be mailed to the shareholders 120 days after close of the fiscal year.  If independent analysis is done in the form of a compilation, review or audit, that report is also to be published once the accountant has completed the work. The applicable section is 1554 of the Business Corporation Law and the comment to it states that failure to comply is clear evidence of conduct sanctionable under 42 Pa. C.S. 2503(7).  These rights are not really subject to limitation by the shareholders agreement unless it was adopted prior to 1991 and even then it applies only to shareholders who had that status in 1991.

There is also the right to examine the books and records of the corporation. This includes, stock registers, shareholder address records and the bylaws and minute books.  The right is to be exercised at the place where the records are kept during normal business hours and includes the right to have copies made.  Section 1508.  There is a good faith standard here but that is intended to keep shareholders from essentially occupying the business with a limitless set of demands.

Failure to comply with a written request within five days invites a petition directed to the court to order the inspection. The burden falls on the corporation to show improper purpose in proffering the request.  Pennsylvania corporations are required to hold an annual meeting every 12 months. Section 1755.  If a meeting has not been held in 18 months any shareholder has the right to demand one.  In addition, special shareholder meetings can be called by any shareholder or group holding 20% or more of the voting stock.

Unless “written out” of the corporate documents, cumulative voting is permitted. This allows each shareholder to vote all of his shares for one director candidate even though there might be three open seats.  This allows minority shareholders to aggregate votes to assure that one of their candidates can secure a seat on the board.  So, in a setting where there are three board positions open and six candidates, a shareholder with 2,000 shares can cast 2,000 votes for one candidate.

Section 1791 allows for judicial supervision of corporate governance. One such right is to secure a summary order for a corporate meeting where the bylaws designate an annual meeting date but management fails to call the meeting.  Section 1793 allows anyone to raise issues of improper corporate conduct.

Majority shareholders have a fiduciary duty to act for the benefit of the corporation in contrast to their own individual benefit. Ford v. Ford, 878 A.2d 894,905 (Pa, S, 2005); Viener v. Jacobs, 834 A.2d 546,556 (Pa.S, 2003).  A majority that acts to its own benefit to the oppression of the minority may be liable in damages.  This can include conduct like refusal to pay dividends where there are profits and reasonable cash flow, appropriation of business assets or payment of unreasonable salaries.  It also includes withholding information from shareholders.  The same is true of officers and directors, Sections 1712(a)&(c).

Indeed, much of this disclosure is available through the divorce process. So why spend any time thinking about it?  To this writer’s mind, the rights and remedies are much more clearly articulated and not really subject to the “it’s just harassment” defense commonly seen in discover court.  Second, when attacked from a corporate governance viewpoint, you may find other shareholders of the business will rally to your cause or apply pressure to the uncooperative spouse to “get this solved, it’s costing the corporation money.”  These tools may open some doors to resolving not only the discovery but the case itself.

Having just finished one of these, I searched our database and noted that we had written very little about it.

In my case earlier this week, my adversary and I had been negotiating a child support order. After several rounds, we reached a mutually acceptable conclusion. When I wrote to confirm our “terms” I received a responsive email that the child’s father wanted to claim the child as a dependent on his federal income tax returns “every other year.”  My client would justly ask:  What does that concession mean and what is it worth?”

If you do your own income taxes at the federal level, you know that on page 1 of the return you are asked to name your “dependents” and on page 2 you can claim a deduction reducing your taxable income by $4,000 for every eligible dependent including yourself. So if Mr. and Mrs. Hubbard are living in the same shoe and they have two minor children, they can take a total of $16,000 in exemptions (i.e. deductions) from their income ($4,000 x 4).  But what happens when Father Hubbard splits to live with another storybook character?  Clearly, if the Hubbard’s continue to file joint returns, nothing much changes.  But Father Hubbard is now paying some deductible alimony to Mother and he needs to file separately in order to claim it.  And since he is paying child support as well why can’t he deduct at least one of the kids?

Well the Internal Revenue Service is on this and since 1984 they have taken the position that the deduction associated with a child goes to that parent who had primary physical custody.

The parties can agree to split the deductions (one parent takes each child) but absent an agreement, the deduction stays with the parent who has the kid most of the overnights, even though the non-custodial parent may be paying most or all of the freight. More recently as we have seen increases in shared physical (50/50) custody, the service has held that the deduction in that instance goes to the parent with the larger adjusted gross income.  See our blog on this 11/1/12.

As we have noted, the deduction can be traded and the IRS has a Form called No. 8332 that allows parents to do that. So what is the deduction worth?  $4,000 right?  Well, not so fast.

The real value of the deduction depends on your taxable income for single folks with taxable income under $10,000; the deduction is only worth 10% of the face amount or $400. But for a head of household with taxable income over $50,000 it is worth 25% or $1,000.  Get that taxable income up into the $200,000 range and the deduction accelerates to 33% or $1,320.  The value of the deduction tops out at 39.6% or $1,584 but your taxable income has to top $400,000 to get that amount.  Beware that as adjusted gross income (AGI) starts to exceed $150,000 the IRS begins to nibble away at the value of the exemption through a “phase out.”  For many high income taxpayers, there is effectively no personal exemption to deduct because of the phase out.

One other thing to know. Assigning the exemption to another does not affect a taxpayer’s right to be a head of household and to use those slightly lower tables in determining the actual tax due. But one thing is clear; while dependency exemptions do reduce your taxes, they do not do so dollar for dollar. An exemption is, at best worth the equivalent of $110 per month and, at worst worth about $35 monthly.

N.B. IRS Publication 504 is the best place for a layperson to consult on line.  Every one of the rules described above has a plethora of exceptions.

A Friendly Amendment To Our Blog On Dependency Exemptions:

I heard from one reader with a very apt point. As income rises, into levels above $150,000, the dependency exemption does phase out and there is a level where it disappears completely.  So I was incorrect to suggest that it has a minimal value.  It can be zero and you certainly don’t want to get into a fight over “nothing.”

Each month we get a report from our own marketing folks on how many people read and subscribe to our blog. On June 29, we received an email from Adelaide in South Australia in which a law firm has taken the time to evaluate the 100 best divorce blogs in the world.  It was a bit of a shock that someone actually tracked 100 blogs and attempted to rank them but we can happily report that we ranked No. 18 in the WORLD.  We were praised for “Fresh and useful posts, regular updates and a professional approach to a common situation.”

For those who practice in the domestic relations world, one of the great frustrations comes when a client asks us to extract a sometimes appropriate pound of flesh as compensation for the “pack of lies” contained in a divorce related court pleading. Although it comes in an unpublished opinion the July 14, 2016 opinion in Morley v. Collazzo, the analysis contained in Judge Patricia Jenkin’s opinion merits attention because it explains what “lies” are compensable and which are not.  2852 EDA 2016.

For a bit more than three years the parties were involved in a romantic relationship. It ended in early spring, 2013.  A few months later, a senior executive at girlfriend’s employer began to receive anonymous mail that included nude photos of the girlfriend accompanied by letters alleging that she was guilty of larceny and illicit use of opiates.  Girlfriend, when notified of this correspondence filed a police report.  She next filed a Protection from Abuse claim.  The PFA claimed that boyfriend was the source of the letters to the employer, that he had revealed details of their sexual relationship at a local bar and had demanded sex from girlfriend.  It was also alleged that the boyfriend was depressed and that he was verbally abusive.  The appellate decision waffles on the next question of “What result?” stating only that a temporary order was entered.  One must infer that the PFA must have been withdrawn.

Almost a year later, boyfriend filed a defamation case including claims of false light and abuse of legal process. Girlfriend filed objections challenging the complaint on the basis that her court pleadings were absolutely privileged whether true or not.  This prompted boyfriend to file an amended complaint suggesting that her pleadings were published outside of Court and that there was a wrongful use of civil proceedings.  Girlfriend renewed her preliminary objections but these were overruled in early 2015.  When girlfriend filed her answer to the tort complaint she again asserted that her pleading was privileged and true and did not proximately cause any injury to boyfriend. She also included an abuse of process claim of her own.  With pleadings closed boyfriend noticed girlfriend’s deposition and demanded all correspondence she had with a state agency that licensed her and all correspondence with her employer.  The response was a protective order request saying the documents were not relevant.  This protective order was granted.  Next came a motion for summary judgment by girlfriend.  In August, 2015 the motion was granted.

Boyfriend appealed, claiming that the protective order precluded him from access to evidence that might otherwise have proved his case.

The standard here is error of law or abuse of discretion. The sum of the appeal is built around Pa. R.C.P. 4011 which precludes discovery that is either irrelevant or not having a proper purpose.  The Superior Court recites that discovery matters are to be resolved by the trial courts and that reviewing courts will employ an abuse of discretion standard.  No abuse found here.

As for whether the content of the abuse pleading was defamatory the court noted the 2012 decision in Richmond v. McHale, holding that statements by judges, attorneys, witnesses and parties made in the context of judicial proceedings are absolutely privileged.  35 A.3d at 784 (Pa. Super).  From the Superior Court opinion it appears that girlfriend may have told her friends that boyfriend had sent letters to her employer and that she feared for her life.  The appellate court found nothing defamatory in those statements.  The plaintiff also had filed for a claim under the “false light” theory of invasion of privacy.  This tort occurs where the fact related from one party to another about a third may be true but there were no bona fide reasons to publish the fact to third parties except to make a false impression. Krajewski v. Gusoff, 53 A.3d at 806 (Pa. Super. 2012).

Lastly the courts disposed of the wrongful use of civil proceedings claim under 42 Pa.C.S. 8351. The Superior Court affirmed the trial court finding that there was nothing grossly negligent in the filing of the Protection from Abuse claim. The statute requires that in order to recover the petitioner seeking relief has to have proceeded for a purpose other than prosecution of a legitimate legal claim.

The takeaways? Clients need to understand that a litigant can say just about anything in a court pleading without fear of liability although the allegations in girlfriend’s Protection from Abuse complaint test the outer limits of relevance in the context of 23 Pa. C.S.A’s 6102’s definition of abuse. At the same time, they also need to be reminded that faxing a copy of their complaint to the local newsroom or even bringing a copy for the family to review after Thanksgiving dinner has no privilege associated with it, even though the document has been time-stamped as a judicial document.  Recall the ruling in Post v. Mendel, where a lawyer’s post trial missive to a judge attacking the trial conduct of his adversary prompted the Supreme Court to observe that not all communications with the court are immune from liability for defamation.  Abuse of process requires the instigation of legal action with a corrupt purpose for which it was not designed.  Wrongful use of civil proceedings is an action filed for which there is no good faith basis.

 

 

 

This writer only wishes he could wear the mantle of constitutional scholar. The best he can do is claim the appellation: constitutional observer.  Today, I picked up the majority opinion decided by Justice Elena Kagan with the intention of reporting upon how the Court interpreted Maine’s domestic abuse statute in the context of the federal crimes code and its generation long prohibition against allowing persons convicted of misdemeanors of “domestic violence” from possessing a firearm.

There are few subjects of greater controversy today than whether the second amendment can or should have limitations. This is not the place to vex that issue.  My intention was simply to report upon how this 4-2 decision would affect Pennsylvanians.  But that can wait another day. What captured my eye and my imagination today was how the highest court decided this case and what politicians of all stripes can learn from the rather oddly structured institution we call the Supreme Court of the United States.

Today’s decision has two dissenters. Even they do not agree on all points but when I saw that the dissenters were Justices Thomas and Sotomayor, I could not help but race to read the dissent crafted by these two politically disparate individuals.

The dissent is written by Justice Thomas. The term “domestic violence” is one pregnant with judgment.  Congress attempted to limit that term by stating that before a gun would be denied to a person convicted of a misdemeanor involving domestic violence, the violence had to involve the use of “physical force” or an attempt at same. 18 U.S.C. 921(a)(33)(A).

The case decided today has a history. It has been to the Supreme Court before in the form of Armstrong v. U.S. 572 U.S. (2014).  The Supreme Court had remanded the case and it came back this time as Voisine v. U.S. with the question being whether a misdemeanor conviction based upon “reckless” rather than intentional assault in domestic violence setting was sufficient to deny the misdemeanant the right to a weapon under federal law.

Kagan’s majority opinion offers a wonderfully useful paradigm. If a gun owner slips while washing a plate and the plate shatters hitting and cutting his spouse, he may have been negligent but he cannot be said to be reckless.  If, however, in a fit of anger he throws the plate at the wall and it happens to hit and cut his spouse, he has now acted recklessly.  People who throw plates intentionally must accept the fact that their act is reckless and can do substantial harm.  That is a use of force that warrants removal of gun rights if the spouse is harmed even though the intent to harm itself was never shown.  The majority opinion says that if a defendant loses his grip on a door such that it strikes his domestic partner in the face, he has not employed physical force.  But if his anger causes him to slam the same door and it happens to strike her in the face, his reckless behavior is physical force sufficient to allow courts to revoke second amendment freedoms.  The majority concludes that reckless conduct is “no less” forceful than conduct undertaken knowingly and intentionally.

This is where strange bedfellows Thomas and Sotomayor jump out of the semantic sack. They reply that the angry plate thrower and the door slammer knowingly unleashed physical forces but observe that by definition, their conduct did intend harm.  But the harm was directed at inanimate objects.  To “use force” means to intend the force as a device to punish or control the conduct of another person.  The door slammer and plate thrower described by the majority are not using force.  As the dissenters put it, the majority conflates volitional conduct with intentional conduct. An intentional act is designed to inflict harm.  A reckless person acts in derogation of understandable risk.  To the dissenting justices the term “use” coupled with “force” means with the intention to cause harm, not merely conduct that happens to cause harm.

All of us know that we live in polarized times when it becomes more and more difficult to “reach across the aisle” in search of understandable consensus. We also know that there are few issues more polarizing than gun rights; a fact borne out by the votes in Congress last week following the tragedies in Orlando, Florida.  What is remarkable about this ruling is the fact that on this most important of constitutional issues a Bush Republican and an Obama Democrat would set aside ideological differences to find common cause in the language we call “English.”  It is what makes the Supreme Court as crafted by Justice John Marshall, a fascinating institution.