: child support : Pennsylvania Family Law

The Prisoner Controversy

Posted on July 9, 2009 by Mark Ashton

Part of what makes the law fascinating is that there are certain legal issues that have no clear solutions. In many cases, both sides have equal merit. The matter of whether incarceration should reduce or eliminate a support obligation is one such question.

The Supreme Court of Pennsylvania ruled on this question in Yerkes v. Yerkes, 824 A.2d 1169 (Pa. Supreme 2003). In Yerkes, the court found that criminal conduct was a volitional act and that where one acts in a way that results in incarceration, that person should not be able to use his crime as a basis to avoid a support obligation.

Even though the Supreme Court is the state’s highest judicial authority, the controversy has not ended. In 2000, Melissa Plunkard gave birth to a child by John McConnell. She sought and obtained an order of $275 a month in child support. In 2003, Mr. McConnell was convicted of a crime and sentenced to 6-12 years. In February 2007, Mr. McConnell filed to terminate his support obligation premised upon the fact that his incarceration prevented his earning income. He also sought the elimination of support arrearages that had begun to accrue before his incarceration and continued after he was confined in prison. Under Yerkes, the law would have been clear. But, in 2006 the Supreme Court issued a Rule of Civil Procedure (1910.19) that gave courts the authority to modify or suspend support orders where it was found that the person owing the support had no income or ability to pay and that this condition would continue for the foreseeable future.

So what happened to Yerkes and the principles it espoused? In a word, it fell victim to federal laws regulating federal subsidies. As welfare costs skyrocketed in the 1970s and 1980s, the US government decided to get involved in the collection of child support. Beginning in 1984, the US government began to issue regulations to states. The regulations essentially dictated how state child support systems would operate. If the state failed to comply, federal welfare subsidies to the state would be reduced or eliminated.

To encourage states to collect child support, the system is now rigged with incentives for collection and disincentives for states that have large pools of unpaid support arrearages. Needless to say, from 2003 forward, Mr. McConnell’s support account was an expanding pool of unpaid child support. This caused problems for the state when McConnell’s arrearages, and those of the thousands of other Pennsylvania inmates, came under federal scrutiny. It was not enough to tell the US Department of Health and Human Services that these sums were presently uncollectible. Instead they had to be “written off”. Thus, in 2006 Pa. Rule of Civil Procedure 1910.19 was born and the principle of Yerkes (even parents in jail owe support to their children) was subordinated to the demands of the federal bureaucracy.

But wait. At the insistence of the federal government, Pennsylvania had passed another statute that would have “trumped” the 2006 rule in part. Mr. McConnell was jailed in 2003. He did not seek modification until 2007. The Support Law, 23 Pa. C.S. A. 4352(a) states that except where a child is emancipated, there can be no retroactive modification of arrears. The exceptions to this rule are very narrow. They include a physical or mental inability of the petitioner to file the petition; misrepresentation (e.g., failure to disclose facts required to the other party) or other compelling reason. The statute further says that the party seeking retroactive modification must act promptly once the disability is removed or the misrepresentation discovered.

In the McConnell decision, the Superior Court applied several different approaches. The arrears that accrued before McConnell was incarcerated were not remitted, even though it seems clear that he has no present ability to pay them. And even though the Court expressly finds that Father showed no compelling reason for his failure to seek the termination when first incarcerated, it remitted the arrears anyway. The premise for this decision appears to be the fact that the rule allowing termination was issued by the Supreme Court in May, 2006. How the Court had authority to vacate arrearages that accrued before the Supreme Court rule was changed is a question still lingering in this writer’s mind.

The appellate court also emphasizes a part of the 2006 rule that states that these orders are without prejudice. What does that mean in the real world? Can they later be reinstated and, if so, on what basis? All of this remains to be seen. In the meantime, if you find yourself encountering a petition of the kind Ms. Plunkard did, we would probably recommend that you promptly convert all existing arrearages to a judgment recorded with the Prothonotary.

A CHILD SUPPORT CASE BOTH BIG AND RICH

Posted on June 12, 2009 by Mark Ashton

Although our law firm has litigated several of the largest support cases decided in Pennsylvania the matter of how much support children need is one of endless controversy for those who have household net incomes exceeding $20,000 per month. We are often asked to offer second opinions or discuss those cases we have tried. The fact is that while we have opinions about these larger cases, most of them settle because the range of possible outcomes is so wide even in cases where we believe we understand the approach taken by the judicial officials deciding the law.

Since 1984, Pennsylvania has operated under a Supreme Court ruling in Melzer v. Witsberger, 480 A.2d 991 (Pa. Supreme 1984). The case created a multi-part formula beginning with an analysis of the income each parent’s available income and then assessing the “reasonable needs” of each parents for his or her own support and graduating to an assessment of the reasonable needs of the child or children in each parent’s household. Based upon a subjective evaluation of these needs, the court allocates what contributions need to be made from one household to the other to cover the child’s reasonable needs. The process is complicated and rife with opportunity for “judgment” calls. Moreover, most members of the judiciary will candidly admit that a lifetime of common sense experience often leaves them unprepared to decide what is reasonable when wealth is enormous. Does a one year old need a governess if the primary caretaker is already staying at home. Does a reasonable vacation expense include first class seats? Private plane? 747? While Pennsylvania has not opined on these subjects, other states have had to.

It is rare for high income cases to be reported because they usually settle. But in January of this year a Schuylkill County case, Rich v. Rich, was decided by the Superior Court based upon their review of a Melzer analysis. 967 A.2d 400 (Pa. Super. 2009)

The case involved support of four children at its beginning. One was emancipated during the two years of litigation culminating in the final order. The father was a CEO for several coal and co-generation companies. Father’s gross income was $9-10 million per annum. His net worth roughly four times that amount. Mother was not employed. Father’s home and contents occupied 150 acres and had an aggregate worth of $2-3 million. Mother lived in a mortgage free $725,000 home.

Mother presented expenses of roughly $180,000 a year for the four children. The trial court accepted these expense and awarded $15,000 a month. Support was not reduced upon the eldest child’s emancipation, the Court finding that other expenses would have risen during the period involved.

Father appealed from the order. His first complaint is that Ms. Rich failed to document her expenses. The Rules of Civil Procedure were amended in 2006 to require documentation of expenses in cases decided under Melzer where net income of the family exceeds $20,000 per month Pa.R,C.P. 1910.27(c)(2)(a). His particular complaint was a $50,000 item budgeted for credit cards charges without supporting data or delineation. The Superior Court found that Father waived the argument when he agreed that the expenses presented for 2005 were reflective of actual post separation expenditures.

The second basis for the appeal was the trial court’s refusal to reduce support by 25% once the eldest child was emancipated. The appellate court properly noted the law to forbid arithmetic reductions not supported by testimony related to expense savings. At the same time, it observed that it was also an abuse of discretion to infer that the cost of living increase was equal to the reductions in costs arising from a child’s emancipation. The case was remanded to the trial court to consider what cost savings would result from the child’s emancipation.

Mother also appealed. T he core of her appeal was that the support was insufficient and she pointed to two cases litigated by Fox Rothschild (on behalf of plaintiff’s) where more support was awarded for children than Mr. Rich was required to pay even though his income was 2-4x greater than the payor spouses in Karp v. Karp, 686 A.2d 1352 (Pa. Super. 1996) and Mascaro v. Mascaro. 803 A.2d 1186 (Pa. Supreme 2002)

The Superior Court easily disposed of this . The support award made by the court was 100% of the budget presented by Ms. Rich even though she claimed that her needs were only 10% of the $15,000 in claimed monthly expenses. Where she pointed to the disparity in accommodations between her $725,000 home and father’s $2-3 million dollar residence, the Court pointed to Colonna v. Colonna, 855 A. 2d 648 (Pa. Supreme, 2004) where the Supreme Court of Pennsylvania held that “case law does not require that all the recreational benefits that the children enjoy when they are with Father must also be provided through support from Father when they are in Mother's custody. In fact, Mother admitted that the children have continued to attend private schools and summer camps as they did before she established a separate residence. Our review of the record in relation to Mother's first two issues reveals that the court's conclusions are not in error and no abuse of discretion was committed.”

So, in the 25^th year after Melzer became the law of the Commonwealth, we still do not have an appellate case that thoroughly analyzes what is a “reasonable” expense for a child or even how to allocate things such as auto insurance or propane bills between parent and child. But we do know that $15,000 is not an abuse of discretion for four children and we are reminded that Mr. Rich’s access to vacation homes while the children are with him does not warrant support adequate to allow Ms. Rich to replicate that lifestyle while with the children. The case also discusses how to dispose of huge accumulations of credits or arrearages emerging from lengthy proceedings and interim payments. But that will be for another day.

Tags: Expenses, Melzer, Support, child support