The September 7 issue of TIME Magazine features our obsession with childhood sports.  The statistics tell the story.  In 2005, school age children played sports at a combined cost of about $8 billion per annum.  Today that number is about $15 billion, almost double. And, during this same period there was no increase in the population of American children.  About 73 million, then and now.  So, how about household income over the same period?  Nominally, it went from an average of $45,000 to $50,000, but if you adjust for inflation, it actually declined a little bit.

This writer’s conclusion?  Americans are spending money they don’t have on something they want and enjoy but do not need.  The cost of team sports for children is itself frightening.  Time reports these as average costs including enrollment, uniforms and lots of travel:

Lacrosse                $8,000

Ice Hockey            $7,000

Baseball/Softball  $4,000

Football                 $2,700

Soccer                    $1,500

Basketball              $1,150

This is not a sport economics blog but we see this every day in our divorce practices.  Parents fight over the logistics of these sport activities. They fight over who will pay.  They fight over whether the child belongs in the sport and, as we recently noted, whether the risk of injury exceeds the benefit.

As the cost of college rises, we also see many parents eyeing their children’s athletic skills as something they can capitalize upon in the form of athletic scholarships.  Putting money in a 529 plan is a tedious way to prepare for college.  But travel with the child’s team to Baltimore or Richmond to watch 72 hours of continuous soccer is now viewed as an “investment.”  Curiously, as time has passed, emphasis is now focusing on athletic performance at younger ages.  Time reports of colleges following “star” athletes at ages as young as 10.  Middle school is now where the talent is first evaluated.  This means, the sport and the child must be nurtured for seven years before the scholarship is awarded.  And, children are seeing repetitive motion injuries crop up more frequently because many of these sports are now scheduled “year round.”  A gifted basketball player cannot afford to risk his future by playing another sport where he could be injured, or worse-yet, his shooting and passing skills are allowed to wither.

In May, I testified before the Pennsylvania House of Representatives about some possible changes in support guidelines.  The witness before me was a Father who, together with his wife, invested heavily in a child’s future as a competitive snowboarder.  Much of this investment was borrowed using husband’s credit cards.  Shortly after it became clear that son’s snowboarding career did not have much promise, wife departed leaving husband with massive credit obligations.  Then she had the temerity to sue him for support.  He wanted relief from the support guidelines because a lot of his income was paying credit card debt associated with promoting their child’s sport.

I must confess, I did not have much sympathy for either parent.  But, as the Time article observes, modern day parents have difficulty saying “no” to their need driven kids.  What child would not want to go to Baltimore, stay in a hotel and hang with his friends while assembled to play back to back softball games on gorgeous college campuses?  Unfortunately, the psychological community is warning that in addition to premature serious sports injuries, many children and their families are starting to experience competitive sports burnout. Especially where scholarships are involved, many competitions and tournaments are mandatory because that’s where the college coaches and scouts are going to be found.  I spoke recently with a fellow lawyer whose child is still reeling from seeing that her son finished both college and his baseball driven career with nowhere to go.  His persona and all of his goals were erected around his athletic talent and now that talent no longer had value.

This is a bad cycle and one that often robs the children of their physical and emotional well-being while robbing their parents’ purse with little chance of return.  Each year about 400-500,000 high school kids play baseball, soccer and basketball.  Another 1.1 million play football.  The likelihood they will take this skill to the professional world is frighteningly small.  Baseball: 1 in 760; Football: 1 in 600; Soccer: 1 in 800; and, basketball: 1 in 1,860.  Sports have much merit. But all good things must come in moderation.

We live in a day when reported (i.e. precedential) decisions are rare and decisions touching upon important philosophical differences are like hen’s teeth. But on November 18 the planets aligned to give us Hanrahan v. Bakker, a 2-1 panel decision with Judges Ford Elliott and Dubow in the majority and Jenkins in dissent. The subject; how much child support is “enough” when the combined incomes exceed $15,000,000.

We have seen this before. Branch v. Jackson involved a major league baseball player. In that case there was a large support order and money deposited in an UTMA account for an unspecified “later.” This writer was troubled by support paid into trust because that really does transfigure the basic premise of the income shares approach to child support. But the result could be explained when one sees that the average career span of a baseball player in the majors is about 5.5 years. Statistics tell us that the rainy day is coming and that for professional athletes there is rarely a “second act.” Meanwhile we know that childhood is 18 years by law.

Hanrahan is different. Both parties are lawyers sharing physical custody of two children. Mother earned approximately $105-180,000. Father’s earnings as a specialist in corporate takeovers with an established Wilmington law firm ran a gamut from 1,083,000 in 2010, $4,010,000 in 2009; $2,303,000 in 2011 and $15,592,000 in 2012.

The parties divorced in 2009 after 17 years of marriage. The opinion references but does not describe income or lifestyle during the marriage. The property settlement agreement called for an annual exchange of tax returns and an annual adjustment of support based on net income and Pennsylvania guidelines. It also contained a counsel fee provision should there be a breach of the agreement.

All proceeded smoothly in 2009 which is to say the calculation was done and the support adjusted to $15,878 per month. In 2010 father’s income declined sharply but again they followed the guideline formula and support fell to $3700 a month. In 2011 Father’s income was $2,303,000 and the support was calculated as $7,851 per month.

2012 was the year the mold broke. With $15,600,000 in income and mother’s reported as $105,000 Father wrote to Mother stating that he ran the calculation but that the number was “way beyond” any realistic reasonable needs. He also generously proposed not to reduce the support below $7,851 per month. It should be noted that Father also covered about $6,000 a month in tuitions, camp, and activities in addition to the support specified by calculation.

To complicate matters Father also took $2,500,000 of the 2012 earnings and clapped it into an irrevocable trust for the children. As if that doesn’t make it complex enough, the partners of his firm agreed to fund a scholarship in honor of the law firm’s founding partner. The “contribution” to this cause for Father was $150,000 but the firm reimbursed him for the contribution.

As one might expect, $14,000 a month in support and direct payments did not seem adequate to Mother and she filed to enforce the agreement. Father filed an unspecified counterclaim and the matter was heard in January, 2015. Over Father’s objection that the income level made the guideline presumptive amount under Pa. R.C.P. 1910.16-3.1 absurdly unrealistic, the Delaware County Common Pleas Court came back with an order ranging from $52-59,000 per month from May 2013 through April 2014. But the Court simultaneously ordered Mother to deposit $30,000 per month from that sum into Uniform Transfer to Minor Act accounts for the children where she would act as custodian. It also found that Father had breached the agreement and made an award of attorneys’ fees pursuant to the agreement. Both parties appealed.

Mother’s appeal settled on the issue of putting the support money into an UTMA account. Her argument was that every other support order in Pennsylvania affords a recipient unfettered access to the support awarded. On this subject the majority agreed, noting that children should not be made to wait for child support and that UTMA is a gifting mechanism with a trust aspect in contrast to child support which is an obligation of parenthood. The UTMA statute declares that these “gifts” are not a substitution for child support. 20 Pa.C.S. 5314(c). The UTMA funds are secondary to the underlying duty to support from current resources. Sternlicht v. Sternlicht 822 A.2d 732,737 (Pa.Super, 2003) aff’d 876 A.2d 904 (Pa. 2005). That aspect of the order was reversed.

The trial court had made a downward deviation in the support amount by reason of the $2,500,000 Father had deposited into trust for the children. Mother asserted that this also was an unwarranted intrusion into the support formula. The trial court had reviewed the deviation factors under Pa.R.C.P. 1910.16-3.1(a)(3) and concluded that the trust was a “relevant factor” warranting deviation. Here the Superior Court again relied upon cases noting that the support obligation was not reduced because of the child’s own property. This contribution was made voluntarily at a time when Father knew he had a child support obligation. See Portugal v. Portugal, 798 A.2d 246 (Pa. Super, 2002)(a parent’s voluntary retirement contributions are still income available for support). The downward deviation was reversed.

On the counsel fee award, the trial court had found this to be a reasonable dispute and not a breach of the agreement. The Superior Court disagreed finding that Father covenanted to pay according to the guidelines and that his position that the guidelines were now absurd or confiscatory was without legal basis. This denial of fees was also reversed.

Father’s appeal starts with a claim that the 1994 decision in Ball v. Minnick, 648 A.2d 1192 (Pa. 1992) somehow eliminated reasonable needs as a standard for support. The Superior Court held that guidelines and the rebuttable presumption of their applicability had been part of a statutory scheme approved by Act 66 in 1985 and remained the law. The income shares model had been adopted in 1989. Ball v. Minnick had established that where the guidelines stopped (then at $10,000 combined net income) the formula of Melzer v. Witsberger, 480 A.2d A.2d 991 (Pa. 1984) would prevail. But Ball was overruled in 2010 by adoption of Pa. R.C.P. 1910-3.1 which stated that all support cases were to be first analyzed through an income shares model after which the courts could evaluate whether deviation was appropriate. Father placed his reliance upon use of the terms “reasonable needs” in the statutory framework of 23 Pa.C.S. 4322. But the Superior Court responded that the guideline formula adopted in the Rules was the formula adopted for determining reasonable needs. It further noted that reasonable needs were not a deviation factor specified in the existing rules.

Along the same lines Father asserted the deviation was appropriate because this support result was an aberration of the standard of living of the parties. Pa.R.C.P. 1910.16-5(b)(7). He also borrowed from the trial court’s reliance on “other factors” to deviate. 1910.16-5(b)(9). The trial court appears to have followed the rainy day reasoning of Branch v. Jackson. Essentially, the argument there was that funds needed to be set aside for a day when incomes were likely to be reduced. The amended trial court order referenced the children’s’ post majority needs. The analysis here seems somewhat muddled but the clear import is that post majority needs and standards of living are not part of a child support analysis.

What makes this case interesting is not so much the result but the trend. We are seeing lots of disparity in annual earnings on the part of more and more people. In this case, even Mother’s income varied markedly. The support amount (excluding the add ons) over three years varied from $3,700 to $59,000 a month. Assuming a caring, honest and intelligent recipient what is that person to do. We can hope the payee would not spend every dollar received, but we are trusting that the right thing will be done with some fairly astronomical levels of child support. If the payee took the excess over the mean level of support (roughly $8300 a month) and purchased a $500,000 home with the excess cash accumulated over the 12 months of “surplus” whose house is it when the children are emancipated.

When large sums like that in Hanrahan come into play, would it not make sense for the court to appoint a guardian ad litem to at least make some suggestions or perhaps ask some questions. Certainly this should not be an appointment to wrest control of the support from the payee but we have all heard the stories, whether apocryphal or not of fortunes wasted on cashmere socks and fast cars. As a business lawyer Mr. Hanrahan probably still has a few more seasons in the big leagues of mergers and acquisitions. But wide receiver Michael Jackson was drafted in 1991 and finished in 1998. We don’t know how Ms. Branch’s children by Mr. Jackson ended up but even the best of us certainly would be tempted to think that the father of her children might become the next Jerry Rice (20 seasons). If the money we call child support really is for the kids, some caution should be taken in circumstances where the income level is erratic and the source fleeting. A GAL would be money well spent to assure that children do not ride the road from rags to riches back to rags when that calamity could be avoided.

The dissenting opinion of Judge Jenkins would go even farther. She believed that a downward justification was warranted based upon the funding of the trust and she also approved of the notion that it was in the best interests of the children for funds to be segregated into a UTMA account.

One of the things the Pennsylvania Bar Association makes a part of its mission is to review and, where appropriate, comment on legislation introduced for consideration by the General Assembly. These proposed laws cover a large swath of public policy territory.  Earlier this year the legislature passed a bill creating a presumption of consent to divorce where a violent crime had occurred between spouses.  Today there is a bill to reduce the separation period required to obtain a consent divorce from 2 years to 1.  It may well pass before the end of the month. There is another bill to affect how custody proceedings may change upon a parent’s military deployment.

The Family Law Section was recently asked to comment on House Bill 1975, a bill introduced by Representative Todd Stephens of Montgomery County and 18 of his colleagues imposing interest on support arrears. While this writer sees limitations in the bill as currently drafted, the subject is one that certainly merits legislative consideration.

The nub of the problem can be described as follows: Two parents separate on January 1, 2016 and parent A has primary custody of their child.  Parent A applies to the court for a child support order and on March 1, a conference is held and an interim order of $1,000 a month is issued.  The Court instantly attaches the wages of Parent B and the matter is referred for a hearing to establish a final order.  That hearing takes place on June 1 and a decision is rendered setting support at $2,000 a month on June 30, 2016.  This means that the support account would be set at $12,000 (6x $2,000) against which there would be credits for the $4,000 for those payments collected under the interim order (Mar, Apr, May, Jun).  Thus the account would show what lawyers call an arrearage of $8,000.  The technical legal term is called “past due support.”  When it enters a final order, courts are also supposed to address liquidation of the past due support.  Typically, courts add 10% to the order to reduce the arrearage over time.  An award of $2,000 would be increased to $2,200 per month with $200 being applied to eliminate the $8,000 arrearage.

Those facile at long division and the “time value of money” will see the immediate inequity. Parent B paid no support for two months and half the correct amount of support for the next four months while the final order was being decided. At $200 per month it will take 40 months to pay off the overdue support.  At the legal rate of 6%, the interest that should be applied to this payout would be about $48 per month or $1,920.  But under prevailing law, Parent B gets the payout interest free.  So, the effective rate of the payout is not $200 a month but $152.

House Bill 1975 does not change this if Parent B unfailingly remits $2,200 per month as the June 30 order mandated. But if Parent B, fails to make the correct payment amount each and every month, the “past due support” becomes “overdue support.”  And that is not just the particular missed payment but all past due support (arrearages).  Under Bill 1975, if Parent B paid only $2,100 per month in September, 2016, all past due support would become overdue and subject to interest at the legal rate of 6%.*

*The proposed bill applies interest at 6% or Wall St Journal Prime +1%, whichever is greater.

The statute does not specify the date the interest would be calculated from. Should it be from the date the case was initiated; the date the order became final or the date of the default. There are meritorious arguments for all three dates.

But there is also reason not to apply these interest rates or to apply them at a rate that is today 25% above prime rate. One cannot reasonably defend an interest free loan of what the law defines as essential support for dependent minor children.  On the other hand, many if not most support obligors incur unusual expenses at separation (e.g., moving, rental or home purchase deposits and related soft costs) and the economies of one family under one roof are erased.  Another concern is the new trend toward spasmodic employment.  In the past decade employers have increasingly relied on computer models to instantly add and/or terminate employees.  Payor parents who find themselves terminated often forget to put on their “to do” list a visit to modify support based on unemployment.  So the employee who neglects to make $2,200 a month payment in the month immediately following his/her termination risks falling into the “overdue support” bin that would trigger interest rates at a time when the payor is least able to make the full payment.  Presumably, this might be rectified in subsequent modification proceedings but that requires recalculation of not only the support but any interest which began to accrue.

In a conference call of the state bar association’s family law section, the discussion focused upon the complex interest algorithms that would need to be written to trigger and calculate interest and to revise those numbers if, as, and when a modification is granted. In our example Parent B pays his $2,200 in July, August and September but is fired on September 30 and pays only $1,000 in October.  Now his past due support is overdue support and the computer calculates and adds interest to his arrearage.  In November, he applies for a reduction and in January, his support is modified to $750 a month because his income is vastly reduced.  Are we still charging interest on $7,400 arrearage balance at 6% despite his reduced condition?

Lest we be accused of shilling for the payor, the plain fact is that there are times when lengthy payouts of past due support should be subject to some form of interest. Often Courts routinely apply their unwritten 10% on arrears rule despite the fact that the parties have large deposits that could easily satisfy the arrearage.  At its worst, in one case, the arrearage on a $45,000 a month order was well in excess of $1,500,000.  Despite the fact that the payor had reported income 5x the arrearage, the Court ordered a token payment of $5,000 a month in reduction of the past due amount.  The effect was a 26 year interest free loan.  The Superior Court deemed this alleged error to be harmless.  See Karp v. Karp, 686 A.2d 1325 (Pa. Super. 1996)

Is there a middle ground? Encourage courts to award modest interest to incentive Payors to liquidate their obligation.  Apply it to all final orders but allow it to be suspended where justice would make such accruals inappropriate in the court’s discretion.  This might create the proper tension between interest free payment of past due support and debilitating interest assessments against those not really in a position to pay interest.  Research provided to us by Summer Clerks Eunice Kim and Kelsey O’Neil informs us that 28 states apply interest on past due support and 40 states charge it on overdue support as H>B. 1975 suggests.  When states such as Alabama, Mississippi, and Arkansas are charging 7.5-10% interest, one has to ask whether this is another example of “Carville was right” except that we might be a little less modern.

For a list of which states charge interest and how search http://www.ncsl.org/research/human-services/interest-on-child-support-arrears.aspx

 

 

For those of you who practice in this area or are “regulars” in the child support system, you know that every four years, the statewide child support guidelines are due for an update. The purpose is to try to keep pace with the economic times and the cost of raising children.  For the 2008 and 2012 revisions, the Domestic Relations Procedural Rules Committee retained Dr. Jane Venohr of the Center for Policy Research in Denver, CO. to compile economic data.  Dr. Venohr is again involved in the 2016 process.

The Rules Committee published its proposed guidelines on April 21. For now, they are subject to comment from any interested individual and should be directed through Bruce Ferguson, Esquire (domesticrules@pacourts.us) as counsel to the Committee.  Once the comment period closes, a final version will be sent to the Pennsylvania Supreme Court for its review and decision.  Because the guidelines typically do not present policy issues, the Court has usually adopted the proposal without amendment.

The current draft guidelines make no substantive changes to the procedures by which a support order is established or modified. At the same time there is another proposed substantive modification to Pa. R.C.P. 1910-16-4(d) which may be adopted by the Supreme Court known as Recommendation 146.

Generally, the news is that costs have increased and so have the guidelines. The self-support reserve has increased 5.1% to $981.  Support for children has also increased.  Using two children for illustrative purposes, the amount of support to be allocated between the parents looks like this:

Combined income                              2012                      Proposed

5000                                                    1369                      1415

10000                                                  1981                      2044

15000                                                  2532                      2586

20000                                                  2997                      3052

25000                                                  3425                      3492

30000                                                  3836                      3902

Above 30,000                                      11.6%                    11.8%

Generally the increase ranges from 3.3% at the lower end to 1.6% at the top. The data analyzed to arrive at these values comes from September, 2015 data.  During this period the CPI for all Urban Consumers in the Northeast rose from 243.323 to 252.922.  One could suggest from this that the guidelines are not keeping pace.  But then the guidelines do not include the costs of health insurance and related expenses, which are allocated by net income “on top” of the guideline amount.  Needless to say, a major driver of consumer prices is the cost of health insurance and related care.  The same can be said for day care costs, which also travel outside the guideline amount.

On October 5th of this year, the Superior Court disposed of an alimony modification request that was decided by the trial court in October, 2014.  The facts and the ruling present a tale of how divorce practitioners need to pay heed to language when modifying an order of alimony.

Egan v. Egan, 2015 Pa. Super. 2013 was decided in Montgomery County, Pennsylvania but began as a divorce in Montgomery County, Maryland.  In 2002, the Maryland Court issued a divorce decree with an alimony order providing for one year of alimony at $4,000 per month and then alimony of $3,000 per month “thereafter.”   In 2004 the former husband filed to register the alimony award in Montgomery County, Pennsylvania and in April 2005, the parties formed a stipulation that transferred both the alimony and child support to Pennsylvania.  The Pennsylvania order made several modifications to alimony, child support and arrearages.  The Pennsylvania Order contained a provision that should father succeed in reducing his child support, his alimony obligation would have a corresponding increase.  We have seen these kinds of arrangements in agreements for many years, but this is the first time we have seen this discussed in an appellate case.  If Father petitioned to decrease child support, the agreed upon increase in alimony was also to render the revised alimony number, non-modifiable.  This agreement was made an order of court in April, 2005 in Pennsylvania.

In February, 2013 Husband/Father filed in Pennsylvania to modify the alimony.  Wife/Mother countered that the alimony was non-modifiable because what was submitted in 2005 was a stipulation or “agreement”.  In a ruling made without a hearing, the trial court ruled as a matter of law that the 2005 document was an agreement under Section 3105 of the Divorce Code and therefor was not subject to modification.  It also held a hearing on Wife’s counterclaim and held Husband in contempt for failure to comply with the 2005 stipulation.  Husband or rather ex-husband appealed.

Because the Maryland divorce decree mandated payment of indefinite alimony, it appears that the Pennsylvania court viewed the alimony award as modifiable as registered here in 2004.  But the “agreement” to modify the alimony and child support provisions of the Maryland decree after registration in Pennsylvania was “agreed”.  The Superior Court ruling is a determination that in resolving the modification of alimony by “agreement”, the parties took an order that otherwise was subject to modification under Section 3701(e) and converted it to an agreement under Section 3105(c).

Section 3105 (c) states that an agreement regarding disposition of existing alimony shall not be subject to modification absent “a specific provision to the contrary.”  In this case, husband argued that Section 3105 governed only those cases where there was a comprehensive agreement.  The Superior Court rejected the argument that agreements under Section 3105 need to be comprehensive, holding instead that if he wanted his 2015 modification to continue to permit further modification, that language needed to be written into the modification instrument.  His argument that alimony was modifiable because he never did seek a modification in child support was rejected for similar reasons.  By reaching the agreement embodied in the 2005 stipulation, husband took an otherwise modifiable alimony order and transformed it into a non-modifiable agreement.

The opinion discussed at length the policy reasons behind the difference in modifiability between Court ordered and agreed alimony.  In a word, the view expressed is that parties to an agreement understand that non-modifiable alimony under Section 3105 is a fundamentally different animal than agreed alimony under Section 3105, and that the parties have to understand that when they negotiate agreements.

The net of the ruling is that a party seeking to modify judicially ordered alimony needs to understand that unless the right to modify again is clearly enunciated, the right is lost where an agreement is reached.  This might be said to have a chilling effect upon such agreements, but the Superior Court found the statutes in controversy to be unambiguous.  It also found the argument that the unmodifiable alimony obligation was onerous (62% of payor’s net monthly income) to be unworthy of consideration.

To the practitioner, the lesson is to draft alimony modifications with great care. To the layperson, the lesson is, do not try to modify your own alimony orders without someone with experience looking at your modification documents.

 

 

Enforcing out of state support orders is controlled by the Interstate Family Support Act (23 Pa.C.S.A. § 8101 et al.  It may seem like the most obvious of steps, but imperative in successfully obtaining and enforcing a support order is correctly identifying the individual subject to the support order. Such was the case in Worley v. Effler in which a fourteen year old North Carolina child support order was registered in Centre County, Pennsylvania for the purposes of enforcement.

The matter was heard by the Superior Court on the basis that the trial court did not adequately allow the purported payor to present evidence demonstrating that she was not, in fact, the individual against whom the order was entered. Mistaken identity is not something that happens merely in movies or on television. Here, Kelly Richards Webster, also known as Kelly Lynn Effler, found herself subject to $24,309 in unpaid child support based on the North Carolina support order.

At the trial level, having immediately requesting a hearing to contest the entry of the support order against her, Webster was barred from presenting evidence that she was not the person named in the order. The trial court believed it was obligated to give the North Carolina support order full faith and credit and the trial court is not wrong on that position.  However, by entering the order without allowing Webster to present evidence contesting her identification as the payor was deemed an abuse of discretion by the Superior Court. Webster is to be afforded the opportunity to demonstrate that North Carolina does not have personal jurisdiction over her to make the underlying order valid against her.

This case offers an interesting analysis of the rules governing the validity and enforcement of foreign orders, but it also prompts one to consider how Worley and/or North Carolina concluded that Webster was the payor. The North Carolina order appears to have laid dormant from an enforcement standpoint for over a decade. Either the payee or the North Carolina domestic relations unit (or both) did not find the arrears to be important enough to enforce the order earlier. I would surmise that at some point the over $20,000.00 arrearage caught someone’s attention and a public records search was made based on names, age range, and other information to track down the payor. Webster was caught in that net. Absent more conclusive information, Worley/North Carolina may have reasonably believed that Kelly Webster of Centre County was their delinquent payor.  Unfortunately for them, they were wrong and a deadbeat parent continues to avoid her child support obligation.

In most instances, people who take the time to visit a website like this are either enmeshed in domestic relations problems or trying to be supportive of those who are.  No one likes being in this position but statisticians tells us that this is a pretty common event in modern society.

Folks in the “system” are often frustrated.  Very few people want their relationships to fail or to fight over how they will allocate their income, their assets or how and when they will see their children.  But that is what occurs when relationships fail.

When these sad events occur, people tend to want advice.  Of course there is lots of free advice from friends, family, co-workers, and people at the gym who passed a bar exam in Indiana ten years ago and worked briefly for a law firm doing securities work in Indianapolis.  Divorce lawyers who really do this work charge what some would call an unfair amount of money undoing the damage of free advice.  “No, you are not automatically divorced after ninety days or two years or whenever.”  “No you are not entitled to live the frivolous lifestyle you and your spouse had for the last three years of your marriage.” “No, you don’t always get one year of alimony for every three years you were married.” Of course, you were getting much better free answers from your friends who “only want to help.”  In 2008 when your financial adviser told you that Citigroup was a buy at $60 a share, he wasn’t out to ruin you.  He just didn’t know better.

Almost like the sixth sense, people will reach out for free advice when intuitively they know that “professional” advice won’t be what they want to hear.  What does a client want to hear?  They are entitled to live the lifestyle they enjoyed during the marriage.  They want to hear that a father who has left a mother for another won’t get an overnight visit with his child.  The person who wants the divorce must pay the other spouse’s legal fees.   So, check with mother, sis or your brother in Istanbul first before checking with your lawyer.

Anyone involved in the divorce process can tell you it is frustrating, time consuming and expensive.  For most, this is absolutely true.  But part of the reason it is frustrating, time consuming and expensive is because clients (a) don’t like what their counsel is telling them and (b) tend to ignore advice they don’t like because they are getting free advice they do like.

This leads to today’s topic; the unasked question.  It comes out of an experience last week where a client’s former spouse sued him to increase the child support.  While we did not know her income (and the payee’s income has very little to do with the child support amount), our initial analysis was not only that support would not increase, it would most probably decrease.  At the support conference on the modification we exchanged data and the hearing officer came back with a recommendation that did involve a five percentage increase.  We reported all of this to our out-of-state client.  And while we reported that we did not agree with the conference officer’s analysis, the recommendation was not completely off base and merited consideration particularly if one looked at the cost of the next stage of litigation.  The client saw the point and wrote back that much as he loved his lawyer, he did not feel impelled to fight over principle given the dollars involved and that he knew that such a fight was only going to adversely affect their shared child, who would be caught in the middle.

It’s not always that easy.  But what is frustrating to lawyers is that their clients will often tell them things like: “He/She will never get overnight visits given what has happened.” Or “She will have to pay child support based on her last year’s reported earnings” even though she was part of Merck’s recent reduction of 9,000 employees.

The great unasked question is: “What is the likely income if we litigate?”  That is often a complex question with many moving parts.  But it is a question best posed to your own lawyer with the companion question of: “What is the estimated cost to litigate.”  Today, in many instances, the uncertainty of “winning” coupled with the relative certainty of investing in litigation make the question vitally important, and thus, well worth asking.

Facebook reutersTo the best of my knowledge, using Facebook as a way to serve legal papers or proving notice of a lawsuit or other legal issue has not been addressed by Pennsylvania courts, but that doesn’t mean it won’t in the future. Recently, two different states took two different approaches to the use of Facebook as a method of legal notice.

This month, a court in Oklahoma ruled that a woman could not use Facebook to notify the father of her child that she was pregnant in advance of putting that child up for adoption. The basic facts are that the couple had a brief sexual relationship resulting in a pregnancy. Though they had little contact with each other after the encounter, the mother sent the father a Facebook message informing him of her pregnancy. Though he claims to have never seen the message, he learned of the child’s existence shortly after its birth and visited the baby for several months. He later had his parental rights terminated and the child was adopted with the mother’s consent.

The Oklahoma Supreme Court ruled in a 6-3 decision that the Facebook message was insufficient for providing notice to the father of the pregnancy because it is not “reasonably certain to inform those affected.” There is a strong dissent which basically states that the Court is being naive that Facebook is less reliable than other forms of communication and that other forms of notice (face-to-face; mail) can just as easily be ignored.

It is worth noting that Oklahoma is also where a major adoption case arose involving a Native American child and was ultimately adjudicated before the U.S. Supreme Court.Perhaps that case has made Oklahoma’s courts particularly sensitive to issues of verifiable notice for legal actions?

The second case in which Facebook was recognized as a valid form of notice and service was in New York where a father placed his child’s mother on notice of his intent to have child support ended since his child had turned 21 years old.

The New York father had no address for his child’s mother; mailed documents were returned without a forwarding address. However, the father was aware of the mother’s activity on social media, including her “liking” photos on his wife’s page. The judge ruled that serving the mother personally had proven “impracticable” and that the Facebook message was a viable way of contacting the other party.

These are two cases with two significantly different perspectives on the reliability of social media to effectuate notice of a legal action. How this issue will be addressed in Pennsylvania will remain to be seen, but it will clearly need to be only after exhaustive attempts to serve under the traditional methods have been taken.

(Photo Credit: Reuters)

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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.

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

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

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

What You Imagine Happens to Your Ex-Wife
What You Imagine Regularly Happens to Your Ex-Wife

 

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

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

Rule 1910.16-6 identifies nine areas for deviations:

1)         Unusual needs and unusual fixed obligations;

2)         Other support obligations of the parties;

3)         Other income in the household;

4)         Ages of the children;

5)         The relative assets and liabilities of the parties;

6)         Medial expenses not covered by insurance;

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

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

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

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

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

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

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

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

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

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