I was researching material for this blog when courtesy of some “cookie” embedded in a website, I was treated to an opportunity to save substantially on my divorce legal fees by signing on for a service that offered me “al a carte” divorce services by law firms standing by to help me without the “unnecessary” cost associated with full service divorce representation. Sounds appealing, right? Why buy the whole car when only the tires need to be replaced?

So as the reader has probably already surmised, this piece is being written by one of those pricey full service divorce lawyers. Thus, as the Latin’s would say Caveat emptor (let the buyer or in this case the reader, beware).

The typical person in an unhappy marriage faces a myriad of issues. Custody. Division of property and the debt that accompanies it. Division of future assets like pensions or other retirement plans; child support; spousal support; alimony; health insurance; life insurance. The list goes on but you get the point.

If each of these issues was wholly independent of the other, a la carte divorce services might make more sense. But, that is usually not the case. So let’s take custody. That should be an easy topic to sever from the rest, right? Kids are not for sale and so money issues should not really tie into custody.

Well, not so fast. Do you have primary custody? Then you will probably be a head of household for tax rates and you will be able to deduct the kids on your return even though the other parent contributes more to child support than you do. Do you have shared custody? Then your tax treatment is probably going to be different. Do you have the kiddies more than 146 nights per year? Then your support is subject to adjustment. If you have primary custody of minor children that’s a reason why you should get a greater percentage of the marital estate. At least that’s what the statute says. Spousal support and alimony pendent lite (which is to say spousal support with a Latin spelling) are calculated differently if you are getting child support and you get child support because of how much custody you have of your children. The parent with primary custody will want to ask whether there is life or disability insurance should the other parent experience disability or its more lasting cousin, death.

So you hire a la carte lawyer to help you draft a custody stipulation. Is that lawyer also going to assess and advise on the issues I just described? You want to say yes but you know better.

Let’s use property division as another example. Mother keeps the house subject to the mortgage because she will have primary custody. Do you want Mother to refinance the house to get your name off the mortgage or are you OK with having an extra $200,000 in debt sitting on your Experian credit report for a house that’s now in her name? And if Mother takes up with Mr. Loser and together they decide not to pay the mortgage on that home where the kids live, do you know whose credit rating is going to be dinged and who might be liable if the house sells for less than the principal balance due in foreclosure? One guess only.

In fairy tales, everything turns out right. That’s why you don’t read a lot about lawyers in books by the Grimm Brothers or Hans Christian Andersen. Lawyers came about because things go wrong. Like the parent who signed up to pay for his kids’ college in 2006 thinking that he had a solid job paying him $200,000 a year. He loved his kids and with $12,000 a month in after tax income he felt confident that he could afford it. But then came the Great Recession and it has now been eight years since he cracked $140,000 a year in income. Meanwhile his loving children all chose to go to private universities and so far they have averaged 6 years to complete a four-year program. He didn’t need a lawyer, right? So now he wanders the streets with a $250,000 judgment accruing interest at 6% that has almost no chance of being addressed in a bankruptcy. A lawyer might have suggested capitating the cost of enrollment, the length of enrollment and a failsafe provision in case he lost his job. But, this 21st century Dr. Pangloss trusted that all would be well.

Some readers will call these war stories a form of fear mongering. Bad things don’t always happen. The entire life insurance industry is built around the premise that in any given year only a small fraction of people actually die. Only a small portion of legal agreements blow up in bad ways. But when they do, they can inflict a lifetime of financial pain. The trouble with on line or over the phone legal advice is that you’ll never be able to find the lawyer or algorithm that gave it to you when it turns out badly.

If you are a lay reader cruising the net for information about how to handle your divorce, return to your search engine now in pursuit of more fertile material. Interlocutory appeals of discovery orders can numb the minds of invertebrates. But real lawyers might be interested.

In 2008 the representative of an estate (ie., dead person) brought an action for the wrongful death of his son. The action was brought against three family members alleged to be responsible for causing the child’s death. The gravamen of the case was that the decedent at fourteen years of age had access to a handgun; the defendants owned it knew that he played with it as did their 16-year-old son. The 14-year old’s parents went away, the 14 and 16-year-old got possession of the gun and the following morning the 14-year-old was found dead of a gunshot to the head. It appears uncontested that the 14-year-old took his own life.

The defense of the gun owners was that their 16-year-old asked the 14-year-old if he had the gun before they went to bed the night before the shooting and the 14-year-old said he did not have it.

In the wrongful death and survival action, the plaintiffs issued interrogatories (written questions) asking whether the defendants had sought any mental health care following the shooting. The question was objected to by the defendants (including the 16-year-old) on the basis that this question would not lead to admissible evidence. Defendants were also asked to produce documents related to a criminal trial which appears to have been brought against the 16-year old’s father. This, also was objected to. The trial court granted a motion to compel the discovery requiring the 16-year old’s mother to reveal the identity of her mental health counselor. It sustained the objection to the 16-year old’s father having to produce any notes he provided to his attorney in a criminal trial. The 16-year old’s mother did provide the name of her therapist but objected to any further inquiry on the basis that her meetings with the licensed psychologist were privileged. Concerning the defendant father’s trial notes, a letter was produced by his criminal trial counsel that the notes were taken by father and provided solely to counsel as part of the criminal defense. The trial court ordered production of the notes and the psychological records or a privilege log explicitly setting forth the basis for the objections. Two logs were produced for the psychological records; one applicable to treatment by a psychologist and a second related to sessions with a social worker employed in the psychologist’s practice. Another log was produced asserting that the notes for trial and a related deposition were made by the defendant’s father solely to assist his attorney. A second motion to compel was filed and the trial court ordered production of the material to the court in camera for review. For any laypersons who have endeavored to read this far, in camera means that the Court would examine the documents and determine whether the psychologist-patient and attorney-client were validly claimed. The defendant’s appealed that March, 2015 order.

Was this order appealable? Clearly it did not dispose of the case. But the defendants relied on Pa.R.A.P. 313. The appellee response was that even if the matter was appealable as a collateral order, this was only an order for in camera review and, as such, it could be that the appeal might be moot if the trial court affirmed the claims of privilege.

The Superior Court panel opinion pointed to Yocabet v. UPMC Presbyterian, holding that even a purported claim of privilege subjects an order to produce to appellate review under Pa.R.A.P.313. 119 A.3d 1012 (2015). This decision relied upon Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) which held that denial of a claim of privilege is appealable. The appeals court further noted that privileged materials are not subject to provisional release to a judge for review until it is determined that they are not subject to privilege. Com. v. Kyle, 533 A.2d 120,129 (Pa. S 1987); Com. v. Simmons, 719 A.2d. 336 (Pa. S. 1998). Accordingly, the orders to produce were appealable and the fact that they were to be produced to the court alone (in camera) was immaterial.

On the substantive questions, the court noted that its scope of review was plenary. Having so held, the Superior Court found no language in the trial court opinion addressing either the mental health or attorney client privilege. The opinion begins by noting that statutory privileges such as these are not to be disregarded.

In seeking to know what the defendant told her mental health professional, the plaintiff’s clearly crossed the privilege line inappropriately. The Court appears to open the door to discovery of what the therapist diagnosed, observed or opined, but the patient’s statements are out of bounds. (Opinion p. 22). On the subject of whether such declarations to a social worker fall within the ambit of the privilege the Court sidestepped the issue directly and ruled that any statement made to an agent who is part of a treatment team managed by a psychiatrist is protected. See Com v. Simmons, 719 A.2d. 336, 341 (Pa.S. 1998). Under Com v. Kyle, supra, the same principle appears to apply to a psychologist. This court however, did not extend this to social workers not working under a psychologist/psychiatrist. (Opinion 25)

On the subject of the notes taken by the defendant father in the context of the criminal proceeding at the specific request of his attorneys, these documents were also held to be attorney client privileged even though the defendant could not recall how they came about. The warranty of the attorneys representing him that they had asked their client to provide the notes (as reflected in their affidavits) was sufficient to uphold the privilege.

Although decided in a tort setting, the parsing of the extent of these privileges is worthy of consideration in both a custody and family law setting generally.

Farrell v. Regola, 2016 Pa. Super. 241 (J-A07021-16) 566 WDA 2015   Decided 11/8/16

Recently, a case came before the Superior Court addressing the question as to whether a party has the right to charge interest on unpaid portions of an equitable distribution award. In Raines v. Raines, 2016 PA 227 (Superior Court), the basic facts are that husband and wife divorced and the recommendation of the master requiring husband to refinance a property and pay out wife was entered as an Order of Court. Under the terms of the order, if husband had not paid the cash by a certain date, wife was entitled to 6% interest per year on the unpaid balance.

Suffice to say, husband didn’t pay his obligation. He could not refinance the property and was forced to try to sell it in order to pay out wife. Consequently, wife pursued contempt and to have the debt considered a judgment. She was not successful since the court found that husband was not in willful violation of the Order and was trying to mitigate the problem by selling the house.

Eventually the house sold and at settlement, wife presented husband with a settlement distribution which provided her interest under the order, plus interest under Section 8101 of the Pennsylvania Code which relates to interest attached to monetary judgments. That law exists so that a judgment holder is not prejudiced by any appeals which might delay the ultimate satisfaction of the judgment. Here, wife was trying to attach it to the money owed and increase her recovery from husband, even though the trial court rejected her request to do so.

Husband, under protest, paid the interest so to not delay settlement and filed to have the Section 8101 interest returned.

The trial court found, the Superior Court upheld, that an equitable distribution order is not a “judgment” as contemplated by Section 8101. A judgment is a “final determination” of a case and in the context of divorces, it is the decree which is the “final determination” and the equitable distribution order is an ““ancillary issue.” The court went on to identify that the entry of judgments against equitable distribution property is permitted under 23 Pa.C.S.A. 3502(e)(1) as an enforcement remedy and to accept Wife’s argument in favor of Section 8101 would effectively nullify a portion of Section 3502. The Court, understandably, declined to invalidate Pennsylvania law on this point.

So while Section 8101 is available to family law cases, it is only after someone has successfully had the equitable distribution order entered as a judgment under Section 3502(a)(1). The order, in and of itself, is not a judgment.

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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.

We’ve reported on the United States v. Elonis in the past. This case involved a Northampton County man who made a series of threats on his Facebook page directed at his estranged wife, his employer, and an FBI agent who came to investigate a threat he made to attack an elementary school. Elonis, in his defense, claimed that his posts were not, in fact, threats, but rap lyrics and forms of artistic expression.

He was nonetheless charged with under 18 U.S.C. 875(c) which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. He was eventually convicted at trial of four out of the five charges against him and sentenced to forty-four (44) months in jail. He conviction was upheld by through the appellate system and eventually appealed to the U.S. Supreme Court who granted cert to hear his appeal. The Supreme Court overturned his conviction, but did not address any of the First Amendment claims or other issues raised on appeal except for what they viewed as an error in the jury instruction identifying the standard the jury was to apply to the offenses. Helpfully, however, Justice Samuel Alito articulated in a concurring/dissenting opinion a road map for the Third Circuit Court of Appeals – the court where the Supreme Court was remanding the case for further consideration – on how to have Elonis conviction upheld.

The Third Circuit did just that, finding that the jury instruction amounted to harmless error and he would have been convicted under either of the discussed standards since there was indisputable evidence in the record that Elonis intended his wife and others to perceive the statements as threats.

The reason this case is relevant to family law cases is that Elonis conviction proves that social media posts will be closely scrutinized by the courts to determine whether or not they can be construed as threats. There is no special First Amendment protection attached to them and context will have a huge affect on whether or not a statement will be interpreted as art or as a threat of harm. In this case, there can be little confusion that Elonis wanted to inflict fear and anxiety on his estranged wife and others around him. His threat to attack an elementary school with the intent to die in “blaze of glory” was concerning enough to prompt a visit from the FBI – an episode that prompted Elonis to “creatively write” and post shortly thereafter a scenario where he uses a knife to quickly slit the agent’s throat as she stood on his porch.

In short, even if Elonis had no intention of carrying out these acts, the trial court and Third Circuit found that he clearly intended them to be threats and whether that determination is made by a reasonable person or if his acts were interpreted as reckless was immaterial to the fact they were made and with a desired affect. Issues of the First Amendment and free speech were never considered and, frankly, I don’t think any court will be looking to carve out violent lyrics as being a protected class of speech. For every Eminem who wins Grammys for writing vividly violent verses about his ex-wife, there will be hundreds or thousands of people who try to circumvent their PFA Orders or try to intimidate an ex-partner through social media or other means and use the facade of “art” and “lyrics” to shield themselves from prosecution or being found to have violated a protective order.

What Court wants to define the line between art and threats? Quite simply, the courts – like many of us – don’t know how to define art, but know it when we see it. Similarly, we might not be able to define an easy catch-all definition of what constitutes a threat over social media, but we can discern context and content make those determinations on a case-by-case basis to ensure both the accused and accuser are protected under the law.

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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.

 

There are times when two conversations with two wholly separate individuals causes a person to distill some interesting new thoughts. Earlier this month I had lunch with a woman who has long run the intake program for the Domestic Relations Office in Chester County. We were discussing the triumphs and tragedies associated with the daily business of processing support cases where both emotions and money are at stake. My lunch companion, Rae Morgan, observed that one of the real problems they encounter is that because the litigants are so nervous about going to court over support they lose their ability to listen and appropriately process even simple instructions.

Two weeks later my lunch companion was Judge Daniel Clifford from Montgomery County. Dan is new to the judging business but a long time divorce practitioner before he was elected to the bench in January of this year. He has been hearing a lot of custody cases and we spent some time discussing how his perspective has changed as he transitioned from before the bench to behind it. His comments echoed those of Rae Morgan. Namely, that he wishes that litigants could observe their own testimony because in many instances what they were advocating was really not consistent with a child’s best interest. Put another way, their anxiety about the hearing often deprived them of what might otherwise seem common sense.

In both instances we spoke about how lawyers can try to help people understand how the judicial process works and how they could be less reactive to it. But then today my inbox brought me an article from Popsugar captioned “30 Things that Children of Divorce Wish Their Parents Knew” I commend every parent to take a few minutes to look at this because a great deal of it would address the kinds of concerns Judge Clifford was talking about in a custody setting. I will edit what I saw as editors tend to do. Their 30 became my 15.

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”
  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.
  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.
  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.
  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.
  6. It really, really hurts when you don’t show up for something we have scheduled.
  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”
  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.
  9. I am not staying with you to provide information about what the other parent is doing.
  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.
  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.
  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.
  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.
  14. If there is bad news, please don’t ask me to be the courier.
  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

My colleague, Mark Ashton, reported on the case of D.P. & B.P. v. G.J.P. & A.P., and identified how the Court’s opinion addressed on a limited basis how Section 3525(2) was, in part, unconstitutional by placing an unreasonable restriction on the parents to raise the children as they deem appropriate, including restricting the children’s exposure to their grandparents.  This decision left open many questions about what happens in circumstances other than separation of six months or more which will likely need to be addressed in the future as grandparents seeking custody re-frame their arguments based on this decision.

One point that I found compelling was that this decision articulated a rejection of the implicit idea that separation, in of itself, equated an unfitness of the parents. As the statute was written, if parties were separated by six months or more then grandparents have standing to bring a custody action. The Court recognized that the statute basically treated separation as a “flaw” and “implicit presumption of unfitness” of the parent when in reality there are numerous parents who parent very effectively while separated and/or divorced, while there are couples in intact marriages who are terrible parents. The Court felt that being separated did not justify a third party needing to step in for the children’s best interests or for the state to exercise parens patrie powers. Separation does not equate abuse, neglect, or an inability to perform parental duties.

Finally, the court reiterated prior case law that when a custody dispute arises between parents and a third party, “the evidentiary scale is tipped, and tipped hard, to the parents’ side.” So, as pointed out in Mark’s blog on this case, the door has been cracked for dealing with grandparents’ standing in cases, there is no doubt that the desire of the parents will create a significant hurdle for the grandparents to overcome even if they establish standing.

On September 26, the Pennsylvania Senate returned to session and adopted amendments to the Pennsylvania Divorce Code that reduced the period by which a party can secure a no-fault divorce on the basis of irretrievable breakdown from two years to one. The bill is awaiting signature by Governor Wolf.

When first enacted in 1980 the Divorce Code required a three-year separation before a divorce could be obtained on no-fault grounds without consent. In 1988 the law was amended to reduce the waiting period to two years. Legislation to further reduce the wait was introduced in February, 2015 and secured approval from the House of Representatives in June of 2016.

The new law does not affect pending divorces and does not become effective until 60 days after Governor Wolf signs the bill. But it is a major change and will bring improvement to the lives of many for whom divorce is a financially and emotionally draining life event. Ironically, while many argue that this will only promote divorce, the greatest number of divorces to be processed in any one year, came in 1979, the year before no fault came into play. Today the number of divorces is much lower than in the 1980s and 1990s but the real cause for that statistic may be the reluctance of millennials to embrace marriage as the sine qua non of a meaningful relationship.

There is also an amendment to Section 3323(C.1) of the Divorce Code related to bifurcation. It mandates that Courts evaluate the impact of a proposed bifurcation on any minor children of the marriage as it relates to the economics of the case.

I recently attended a firm sponsored seminar on business valuation where one of the presenters was Sandra Klevan, a seasoned expert in the field who is affiliated with Financial Research in Bala Cynwyd, PA.

One of the subjects Sandy touched upon was the importance of the management interview to the valuation process. In an effort to manage costs and, in some instances, out of pure arrogance, some business appraisers will either severely limit or even skip this highly important step.

A business appraiser’s function is to estimate what an enterprise will sell for in the open market where buyer and seller have the freedom to negotiate. The typical business appraisal involves the appraiser pretending that he or she is a potential buyer. In a sentence, the opening question is: “What do I get if I buy this business?” Obviously, the principle driver of what any buyer is looking at is derived from study of the tax returns and financial statements issued for the business. But as the Pennsylvania courts have often acknowledged, these financial records can often obscure rather than illuminate highly important facts.

The typical interview involves the appraiser asking management questions such as:

  1. How does the business secure customers and what induces them to stay or go?
  2. How is the business managed in terms of both its organization and its personnel?
  3. Who constitutes the competition and what makes the target company competitive or not?
  4. Have there been transactions involving sale of ownership interests and on what terms were they effected?

Let’s take these questions and provide some playful, yet not unrealistic answers. Let’s assume the business is a small convenience store where customers can purchase everything from batteries to milk and eggs. The business has been at its location for more than 40 years.

  1. Obviously, the business secures its customers because it provides convenience. This can often yield higher profits because these stores typically emphasize that convenience. The advantage of these stores is almost entirely geographic.
  2. Let us say that the business is run by the same guy who started when it opened 40 years ago. He knows and grew up with many of the people living in the neighborhood. Like the town post office people often stop in to find out what is going on the in the neighborhood and when they stop there is usually something overpriced they will need and buy. But seller wants to retire to Florida so the new buyer is not going to be a conduit for information and new buyer is not interested in promoting the “town hall” concept.
  3. Profits from this business on a historic basis are great. But Wawa, Landhope, or one of the other chain convenience stores is opening four blocks north where you can get sandwiches and gasoline. Construction permits have been issued. Oh yes, seven blocks south, Target has filed an application to build a 60,000 square foot store with on-site parking.
  4. Twelve years ago, owner bought out his father who started the business to give current owner a job. Son effectively paid, 2x net profit as reported on his father’s tax return. Do you get it? These facts really do change the playing field. This is a tired old business which still reports great earnings but it is facing competition that is likely to overwhelm it in the next 2-5 years. The goodwill of the business is arguably built around the 60-year-old guy behind the counter who is packing for Tampa. And if I want to buy overpriced AA batteries and a quart of skim milk, why not do it when I am getting gas and a meatball sandwich. The advantages of the business are there on the tax returns but the future looks bleak. Past is not always prologue except for Shakespeare. If your appraiser comes to court and testifies to value without knowing these facts, the cross examination will be brutal. We live in an age when things change fast. If you doubt that reality, ask the bondholders for the Revel Casino or anyone else who invested in Atlantic City in the past decade. Cold accounting papers often do not reveal hot trends that can make or break a business despite a long history of success. If you disagree I encourage you to hop over to your neighborhood Blockbuster and watch a movie while your appraiser finishes his report. Oh, never mind.

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.