Not terribly exciting but evidence rulings are hard to find and ones where a family law ruling is reversed based on evidence used by the trial judge are especially rare.

Johnson v. Johnson 2016 Pa. Super. 294 is a published panel decision where the issue was whether Father needed to continue to support an adult child. The law in this area is made murky by the statute (adults “may be liable” for continuing support: 23 Pa.C.S. 4321(3)) but clarified by the case law holding that there must be a disability which prevents the adult child from engaging in profitable employment at a supporting wage by reason of mental or physical limitations. Hanson v. Hanson, 625 A.2d 1212 (Pa. S. 1993).

Father petitioned to suspend support. Mother defended on behalf of the child. The burden is on the child to prove that disability prevents employment and justifies continued support. Verna v. Verna, 432 A.2d 630 (Pa.Super. 1981). In holding that Father had a continuing obligation the trial court noted that it was not presented with current mental health testimony. While cautioning itself that the doctrine of judicial notice does not extend to records admitted in another case (Naffah v. City Deposit Bank, 13 A.2d 63 (Pa. 1940), the Trial court did note that 13 years earlier the court had found the child suffered from a schizotypal personality disorder. It then concluded the evidence currently showed that this disorder continues even though expert support for that conclusion was not in evidence.

Lacking expert testimony and faced with medical records which were not properly authenticated, the Trial Court denied admission of the records. But then, as noted, the trial court decided to indulge in a review of the 2002 evidence and ruling on the same subject. The court also secured its own copy of the Diagnostic and Statistical Manual of Mental Disorders (DSM) and perused that in reaching its conclusion that the disability was continuing.

The Superior Court reversed. The trial court is confined to what was presented at the hearing; not what was contained in the court file even though that evidence may have been properly admitted in 2002. The Superior Court cited Eck v. Eck, 475 A.2d 825,827 (Pa. Super. 1984) for that proposition. The appellate opinion also mentions that even though it denied admission of the newer records of treatment based on failed authentication, it referenced these records in its opinion. This also was error and the case was remanded for further determination.

The case has a number of interesting issues. If the child had the burden and we assume the Mother was acting on her behalf, why is there a remand if the burden was not met? Should this not have been a vacate order instead of a remand? One suspects that mother may have gotten a “bye” here and that she is now on notice to either secure a current expert opinion or at least work on getting the current treatment records admitted when the trial court resumes jurisdiction.

The standard for continuing support is also ambiguous although the Superior Court notes that the remand nullified the need to address that substantive issue. The opinion references the standard of adult child support as whether the child is too “feeble physically or mentally to support itself.” Com. ex rel. O’Malley v. O’Malley, 161 A. 883 (Pa. Super. 1932). It also quotes Hanson v. Hanson, 625 A.2d at 1214, where the standard is termed “impossibility of employment.” The trial court said the standard was whether the child could be “profitably employed” and whether “such employment is available.” Setting aside the insensitivity of the language used in O’Malley, that case talks broadly about self-support. Today, we see adults with physical and mental disabilities in more and more employed positions many of which are crafted to accommodate those limitations. They can earn some money but it may not be enough, even when supplemented by transfer payments. Is there still a support obligation if it is not “enough?”. And how much is “enough?” The current self-support set aside found in the state support guidelines finds that an adult earning less than $931 per month net is presumed unable to contribute to child support. Pa.R.C.P. 1910.16-2(e)(1)(C). Effectively this means that any person earning minimum wage and working full time is not only self-supporting but able to contribute to support of his/her own child. It would stand to reason that such a person is therefore ineligible to seek support from a parent upon attainment of majority at 19. Is this a hard and fast rule? Would it make a difference if the parents had enormous income of their own? The law in this area has a mid-20th century tinge that could stand for some 21st century judicial clarification.

Since the inception of equitable distribution in Pennsylvania on July 1, 1980 the law has consistently been that courts have power to divide marital property.  With certain exceptions for gifts and inheritances, marital property is all property “acquired” from the date a couple marries to the date they finally separate 23 Pa.C.S. 3501(a). The challenge in several cases has been to determine when property is “acquired.”  To that evolving legal concept we now have not only a reported decision in Yuhas v. Yuhas but one decided by a nine judge panel of the Superior Court.  The decision was rendered on October 28 by a 6-3 majority.

Husband was a surgeon.  He developed Carpal tunnel syndrome during the marriage that effectively ended his career.  Fortunately, he had a disability insurance policy that was acquired shortly after he and wife married.  At various times the couple paid for this policy from personal funds.  Other payments were funded by his practice.  In April, 2007 husband applied for his disability benefits.  In July, 2007 the application was approved.  In that same month the parties separated.  The monthly benefit was $10,700 per month and was made effective January, 2007. The policy continues to pay although, it also requires that husband periodically prove he remains unable to practice surgery.  Wife claimed that because the policy was acquired during the marriage the benefits arising from the policy were also marital.  The special master appointed to hear the case concurred.  The case was reviewed on exceptions by the Chester County Court of Common Pleas, which reversed the master and held that the post separation payments were “income” but not marital property.  The decision of the trial court appears to have turned on the fact that the payments were not guaranteed but renewable premised upon proof of continuing disability.

In a supplemental opinion the trial court noted that the payments that accrued prior to the July separation were marital.  It then analyzed the case in light of the Supreme Court decision in Drake v. Drake, 725 A.2d 717 (1999) where a workers’ compensation award was to a lump sum payment prior to the separation date.  Because this was an “ongoing” claim for disability and not a commuted lump sum payment the trial court saw each monthly payment as a separate right accruing post separation.

To this decision, the Wife appealed.  Her contention was that the event giving right to the income took place prior to separation as did the approval of the claim.  She also noted the 2011 Supreme Court decision in Focht v. Focht 32 A, 3d 668 where a husband was injured in a raceway accident and filed suit with his wife before separation but settled the case after separation. In Focht the Supreme Court held that proceeds from a settlement made after separation are marital because they were acquired in exchange for a chose in action that accrued before separation. Id. At 674.

The Yuhas court noted that a cause of action accrues when the injury was inflicted under both Drake and Focht.  But here the disability did not arise from an injury and were not received as the result of an award or settlement for a cause of action or claim.” 23 Pa.C.S. 3501(a)(8).  The Superior Court holds that Husband did not “contemplate any legal action, nor did he possess a claim against anyone or any entity.”  The Court then refers to the fact that the payments are subject to a condition subsequent.  If husband recovers from the parathesia that prevents him from working as a surgeon the disability benefits are lost.  For this reason, the Superior Court decided these post separation payments are non-marital.

This makes for an interesting analysis.  Husband and wife bought and paid for a policy of insurance.  The event covered by the insurance (the loss of the ability to be a surgeon) occurred during the marriage.  The right to receive the payment for loss was affirmed before separation as well, albeit subject to the condition subsequent. The opinion state that Husband had no claim against anyone or any entity.  Did he not have a claim against the insurer if the insurer had denied the disability claim.  His action would have been in contract and not tort but is that a distinction contemplated by Section 3501(a) (8) which speak of “any cause of action or claim”

Yuhas v. Yuhas,   2013 PA SUPER. 283 (10/28/13).