Header graphic for print

Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

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

Posted in Divorce, Practice Issues

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.

————————————————————————

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)

———————————————————————————————–

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)
 
________________________________________________________________________
 
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.

THE EMERGING STUDENT DEBT CRISIS IS AFFECTING PARENTS, TOO.

Posted in Custody, Divorce, Support

A decade ago, a debt crisis was looming; erected upon the twin foundations of mortgage and consumer debt.  The downturn of 2008-2009 shifted that as lenders realized that much of the debt they had issued could not or would not be repaid.  While the availability of credit has been more limited in recent years in the consumer and commercial markets, lenders have shifted to student loans as a substitute. The difficulty here is that these loans are based on little more than assumed levels of post-graduation earnings.  As we have seen, the job market for college graduates is not what it once was and herein lays a problem that is affecting the divorce process.

For lenders, student debt enjoys a special safe harbor in that student loans are ordinarily not dischargeable in bankruptcy.  But lenders recognized that the advantage of non-dischargeability came with the risk that the students simply “walked” on the debt; paying nothing.  So lenders began to press for parents of students to “co-sign” the student debt.  And co-sign they did taking student debt owed by adults ages 60 and older from $15 billion in 2007 to $43 billion in 2012.  It is self-evident that adults 60 and up are not typically students of any kind and that those who are pay for education out of current income or savings.

We all understand that parents and grandparents want their children to succeed and for most of American history, investments in post-secondary education have yielded excellent returns financially.  But today, labor markets are not absorbing college graduates in the same way they did 20-30 years ago.  According to U.S. News & World Report over the past decade college tuition has risen a stunning 79%, almost double the rise in health care costs.  But a recent study from the San Francisco Federal Reserve Bank indicates that from 2006-2013 wages for recent college graduates grew by only 6%.

Parents faced with the dilemma of either guaranteeing student debt or seeing their children drop out are stepping up, but they do so at considerable risk.  If the child cannot pay his own student debt, the guarantor parent will have to.  And what parents don’t seem to consider is the fact that as they age, their life in the workforce is coming to its end.  The response of many is that they expect to keep on working far beyond what used to be called normal retirement at 65.  But while those who are self-employed may have that option, many older workers are finding that they are targeted when businesses elect to reduce their labor forces.  Parents also tend to assume, they will always be able to work.  But that assumption ignores the fact that as we age, we become less healthy.

These financial commitments to help children are causing a rippling effect in the domestic relations field.  An intact couple with roughly $80,000 in earnings can often absorb several hundred dollars a month in guaranteed student debt.  But once that intact couple separates and now resides in two households, the student debt service becomes unsustainable.

We have come to see post-secondary education and training as a kind of birth right.  Today, like any other form of investment, education costs should be viewed in the same light as the prospectus of any financial instrument.  “Past Performance is not necessarily indicative of future results.”  This is true enough for the student but potentially disastrous for the parent with assets who signs the guarantee for a $50,000 obligation when, at age 50, his expected life in the work force is already 2/3 behind him.

WINDSOR DECISION AFFECTS RETIREMENT ACCOUNTS

Posted in Equitable Distribution, Practice Issues, Same Sex Marriage, Taxes

Last May, Susan Foreman Jordan in our Pittsburgh office issued a very informative alert on the impact of the United States Supreme Court’s decision in United States v. Windsor on the IRS and Department of Labor recognition of same-sex marriages.

Susan identifies and explains how the IRS and Department of Labor clarified, so as to avoid any ambiguity, that if the same-sex marriage was legally entered into, then they would consider it a valid marriage even if the parties were domiciled in a jurisdiction which does not recognize same-sex marriage.

More technically, the IRS issued a Notice (Notice 2014-19) confirming that for qualified retirement plans and other employee benefit programs must recognize same-sex marriages as of June 26, 2013 when the Windsor decision was made, but that they do not have to extend retroactive recognition to that marriage. Susan expands upon that point and amending plan language to confirm to the Windsor decision.

Susan’s alert is really aimed at plan sponsors and what they can do to confirm with the law. It is also informative to plan participants to understand how the Windsor decision has affected their retirement plan.

_______________________________________________________

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 CLARIFIES WHEN CUSTODY FACTORS MUST BE EVALUATED

Posted in Custody, Practice Issues

We are slowly observing some flesh of judicial precedent applied to the bones of the custody stature enacted by the General Assembly and made effective in January, 2011.  A recent and significant contribution to that came in a Superior Court decision which was ascribed precedential value on July 11.

S.W.D. v. S.A.R. is an appeal from a custody decision made in Armstrong County.  The dispute involved a child identified by initials in the opinion as B.A.D. and is reported at 2014 Pa. Super. 146.  The primary dispute revolved around where a five year old would attend kindergarten.  The parents disagreed and when that disagreement ended in selection of public versus church oriented kindergarten, the Father appealed.

The seminal question decided in this case was whether a school decision required the trial court to evaluate the sixteen specified custody factors legislated by 23 Pa.C.S. 5328(a).[1]  The Superior Court’s panel, consisting of Judges Stabile, Bowes and Wecht provide bench and bar with a cogent analysis of when the factors must be drawn from the statute book and applied to the facts in order for a trial court decision to be fully reviewed.

The Court latches on to the statute itself and its internal statement that the factors must be applied to any form of custody.  This is distinguished from custody decisions which may change terms but not form.  The Court decided that a decision related to where a child is schooled is not one that warrants analysis of all of the statutory factors, although it did note that a school change that required a change in the form of the custody (e.g.,  a school so distant that one parent could not fulfill the custody arrangement and get the child to school) might require the complete analysis.

The Court also cited its own decision in M.O. v. J.T.R. wherein the question was whether a parent awarded a custodial period had the duty to take time off from work when awarded custody during school vacation times.  85. A.3d 1058 (Pa. Super, 2014). In that opinion the Court stated that if the decision does not affect the physical allocation of time between the parents, the Section 5328 factors do not come into play. Id., at p. 1063, n. 4.

The panel also cited three other cases involving school selection as cases which did not involve changing the form of the custodial arrangement.  See, Staub, 960 A.2d 848 (Pa.S. 2008); Fox v. Garzilla, 875 A.2d 1104(Pa.S. 2005); Dolan, 548 A.2d 632 (Pa. S. 1988)

The Court notes that the 16 factors may become relevant in any custody decision and that both the factors and the general mission of any Court are to promote the child’s interest. All that the decision really concludes is that not every trial court opinion need come wrapped in a 16 point analysis.

Meanwhile, the ultimate decision is to reverse and remand. Why? In 2010 the trial court had imposed its version of a physical custody arrangement. But somewhere along the way the parties had decided to alter it to something else.  The petitions that brought them to court requested reinstatement of the 2010 order and, alternatively, judicial endorsement of the existing arrangement (i.e., “something else”). The Superior Court held that a request for something else besides the docketed order was, per force, a request to modify and required an analysis that did incorporate the statutory factors. So the cases was remanded for a full hearing on the question of whether a five year old is better served by spending 42.86% of time with Father or 50%.


[1] The newest factor effective 1/1/14 is involvement with child abuse and related protective services.  Sec 5328(a)(2.1)

PA COURTS WILL ENFORCE OUT-OF-STATE RESTRAINING ORDERS

Posted in Child Abuse, Evidence, Practice Issues, Protection from Abuse
Welcome Gift for Coming to PA and Violating a Restraining Order

Welcome Gift for Coming to PA and Violating a Restraining Order

Like many border areas of states, living in eastern Pennsylvania commonly results in legal issues which “span the river” into New Jersey, New York, Maryland, or Delaware (for our colleagues in the central and western part of the state, you can add West Virginia and Ohio); states with distinct laws and procedures from each other. Jurisdictional issues, choice of law issues, and standing can become important considerations for cases. For an action like a Protection from Abuse (“PFA”) or, in New Jersey, a Final Restraining Order (“FRO”), it is not uncommon for parties to live in each state and for incidents to occur in each jurisdiction.

Such is the recent Bucks County case on appeal to the Pennsylvania Superior Court. In this case, the issue arose as to whether Pennsylvania Courts had jurisdiction to enforce a New Jersey FRO. The FRO was entered against two individuals in New Jersey in 2009. Later, in 2012 and 2013, the protected party had interactions with the defendants which rose to violations of the FRO. He brought contempt actions in Bucks County after a series of incidents with the defendants in Pennsylvania.

The Bucks County wrote this opinion after the defendants sought appeal on three different grounds based on a due process claim, insufficiency of evidence, and, the one relevant for this discussion, that Bucks County did not have jurisdiction to adjudicate the contempt action against the defendants.

The Bucks County court relies on 23 Pa.C.S. § 6114.1 of the PFA Act which allows a plaintiff to file a petition for civil contempt with the issuing court or on a foreign protection order. As defined by 18 U.S.C. § 2266, a foreign protection order covers any order or injunction in civil or criminal court which prevents violent or threatening acts or harassment against sexual violence, contact or communication with or physical proximity to the protected person. In other words, if any jurisdiction issues a restraining order or something comparable, Pennsylvania will enforce it provided the violating act occurred in Pennsylvania.

The logic behind this section of the PFA code is obvious: what good does a restraining order do if its effectiveness stops at the state line? By allowing for the enforcement of the order in Pennsylvania’s courts, the goal – the protection of an individual from harm by others – is accomplished. Furthermore, by limiting the enforcement to incidents happening in Pennsylvania, there is no opportunity for forum shopping or abuse of the system by plaintiffs looking for a favorable jurisdiction.

The Bucks County opinion strongly argues that jurisdiction exists to consider the Pennsylvania incidents for contempt of the New Jersey FRO. What this cases serves to demonstrate, however, is that restraining orders travel in Pennsylvania; the Courts will not deny someone an opportunity to enforce that protection simply because the restraining order was issued by a court in another state. The emphasis should be on the protection of the individual.

Smithers v. Stanton, C.P. Bucks County, Family Division, No. A06-09-61861-A-36; 2014 BCBA, 87 Bucks Co. L. Rep. 286 (2013).

(Image: www.wisegeek.com)

_____________________________________________________________

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.

ATTORNEY-EXPERT CONFIDENTIALITY NOW A RULE

Posted in Divorce, Practice Issues

In May I wrote about the Pennsylvania Supreme Court’s split decision (resulting in affirmation) on protecting the communication between attorneys and the experts working on their cases. This was an important decision for a number of reasons, but despite the affirmation of the lower court’s decision, the fact it was a 3-3 split with some dissent made it precedence, but not without some concern that another case could cause the courts to shift course again.

The Pennsylvania Supreme Court has now taken that decision one-step further and codified it as the new Rule 4003.5 of the Pennsylvania Rules of Civil Procedure. Unlike the Federal rule on attorney-expert communications, the Pennsylvania rule has no exceptions to its prohibition against producing this information. Some attorneys have cited concerns about this rule effectively making it impossible to detect manipulation of their opponent’s expert or the expert simply signing their name to a report prepared by the attorney. Nevertheless,this “bright-line rule” has gone into effect and precludes any production of communication between an expert and the attorney.

____________________________________________________

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.

 

COLLEGE SUPPORT AND THE APPARENT REVIVAL OF MILNE V. MILNE

Posted in Custody, Divorce, Support

MAZUREK v. RUSSELL   2014 Pa Super. 130 (2014)

College provisions in property settlement issues have always been a source of controversy.  The typical provision calls for mutual consent “which consent shall not be unreasonably withheld”.  The language seems clear enough when pen is set to paper but when enrollment time comes the games begin as mother has one set of ideas and father another.  The other wrinkle is that by the time college rolls around a child may be estranged from one parent.  So what is “consent” and can it ever be reasonably withheld?

A case decided on June 24 affords us some insight into these questions.  In Mazurek v. Russell, the parties agreed in 2010 to the typical language recited above.  When Mother filed an emergency petition to compel payment for one of the children to attend Marymount Manhattan college in NY, Father blasted back with several defenses including:

1.            Son had lackluster academic performance in high school;

2.            Son had been estranged from Father for five years despite Father’s best efforts. 

Father then said, he would pay if Luke reconciled with Father, maintained a 3.0 GPA and did not take a car.  His terms were not agreed to.  He then noted that there had been no consultation about the school selection.  

A hearing was held in late July, 2013.  The trial court heard evidence and ruled that Father was on the hook for the college and Mother’s counsel fees. 

On appeal a panel of the Superior Court found the “not unreasonably withheld” consent language to be ambiguous as a matter of law and subject to parole evidence to help interpret the intent of the parties.  The Court then looked at two conflicting cases where consent has been an issue.  The first, Fina v. Fina, 737 A,2d 760 (Pa. Super, 1999) held that mutual consent language required meaningful interaction.  A second case, Wineburgh v. Wineburgh, required payment on the basis that the agreement’s use of language that Father would “have a say” did not require consultation. 

The Mazurek Court sided with the ruling in Fina, noting that “we cannot ignore the significant of {mutual consent} language to which the parties contracted.  The Court found that Father evinced a reasonable basis for withholding his consent.  It also appears from the opinion that Father’s prior history of paying large sums for private secondary school for all children and private college tuitions for two other children were factors that weighed in his favor.  

There is an interesting twist to this reported opinion.  Judge Allen devotes a fair amount of time to discussing the estrangement issue and the opinion has a strong flavor of Judge Cirillo’s famous opinion in Milne v. Milne, 556 A.2d 854 (1989) where nine judges of the Superior Court decided that a child’s conduct toward a parent could be grounds to forfeit what was then a judicially imposed, non-contractual duty to contribute to college.  The question the bar will grapple with in the wake of this opinion is whether “reconciliation” with a parent is a necessary component to consultation and consent.  What makes the question even more complicated is that if Father’s testimony is to be credited, he was estranged from his child two years before he contracted to pay 100% of his reasonable expenses for college.  Did Father not have the last clear chance to demand “reconciliation” as a condition to assuming this pricey obligation?