Since the striking down of the Defense of Marriage Act by the United States Supreme Court, many state courts have been trying to fill in the legal vacuum created between the legality of same-sex marriage and the lack of codified law through legislation.

Though many Courts of Common Pleas have taken on issues, it really requires good appellate decisions to establish precedential authority on an issue. This can take time since it requires the confluence of good facts applied to the right law (or lack thereof) to bring an issue in dispute and litigants prepared to take it to the appellate level. Consequently, it has taken time for cases dealing with nuanced same-sex marriage and other issues to make their way into the appellate system for determination, but with two years removed from the Obergefell case, we are starting to see these cases decided by the Superior and Supreme courts. In fact, just last December we saw the Superior Court reverse a Philadelphia County decision and establish that a civil union will be afforded the same access to the Family Courts as a marriage.

Recently, the issue of whether there can be a valid common law same-sex marriage was addressed by the Superior Court in In Re: Estate of Carter, S., Appeal of: Hunter, M. This is an issue which some county courts have addressed, but no further guidance from the appellate courts.  The Carter case involves the widower of a spouse killed in motorcycle accident.  In an action supported by the families of the couple, Michael Hunter sought exclusion from paying the 15% inheritance tax on the basis that he was Mr. Carter’s spouse and they had a valid common law marriage going back to 1997.  It should be noted that common law marriage was abolished in Pennsylvania is 2005, but common law marriages established prior to that time are valid, while same-sex marriage was not legalized in Pennsylvania until 2014.

The trial court, relying on the illegality of same-sex marriage until 2014 and abolishment of common-law marriage in 2005 held that Mr. Hunter proved neither the basis for a common-law marriage and, if he had, he was precluded from being grandfathered into common-law marriage because of the 2014 effective date of the legality of same-sex marriage.  Essentially, he barred Mr. Hunter’s claim by law and fact.

On appeal, the Superior Court found that the trial court erred and that Hunter and Carter did, in fact, establish a common law marriage. They considered the couple’s 1997 exchange of rings and words of intention to be married, as well their attempt to utilize every available legal means to protect their rights and mutually rely on each other (i.e. serving as medical and financial powers of attorney; being beneficiaries to each other’s policies; having joint financial accounts; owning property together).

More pointedly, the Superior Court held that due to judicial precedent, same-sex couples have the same right to marriage as opposite-sex couples and the court cannot rely on an invalidated provision of the Marriage Law to deny Mr. Carter’s rights through common-law marriage. In other words, once same-sex marriage was legalized in 2014, the courts cannot retroactively bar couples similarly situated as Hunter and Carter from demonstrating a common-law marriage prior to 2005. Same-sex couples should have always had the right to marriage; therefore, you cannot bar a common law marriage claim on the basis that the right was “established” in 2014.

In what some may construe as an effort by the Pennsylvania Superior Court to salvage something positive out of 2016, an Opinion was issued today which effectively opens Pennsylvania’s family courts to dissolve out-of-state civil unions

The matter of Neyman v. Buckley (No. 2203 EDA 2015) arose out of Philadelphia County.  The parties were attempting to have their 2002 Vermont civil union dissolved in the Philadelphia Family Court.  The trial court, however, dismissed the divorce complaint related to the civil union on the basis that it did not have jurisdiction over the action.  The trial court based its decision on statutory language which established the court’s jurisdiction to divorce parties from the “bonds of matrimony” and, therefore, could not issue a decree or order dissolving the out-of-state civil union.

The other problem in this case, was that Pennsylvania County examined the Vermont code and saw the procedural separation between dissolving civil unions and marriages. In short, Vermont retained a legal distinction between marriages and civil unions, though they gave them the same rights and access to the family courts. It was on this basis that the Philadelphia court dismissed the complaint to dissolve the civil union and noted that the action sounded more specifically in the civil trial division (i.e. address the civil union as a contract).

Neither party was contesting the dissolution of their civil union. They entered into the union in July 2002 before same-sex marriage was legal and began living separate and apart five months later in December. Since then, they have been living in legal limbo without having residency in a state to dissolve their union or access to the court’s due to Pennsylvania’s Defense of Marriage Act (DOMA).

Many family law practitioners, myself included, have successfully dissolved civil unions in some counties, but those courts which did so in some ways hindered the clarification of this issue. Despite the decisions legalizing same-sex marriage and invalidating Pennsylvania’s DOMA, the state legislature has not updated the marriage and divorce codes to account for the new law of the land. Without legislative action, it would be the appellate courts which would shape the law and offer some precedence to clarify the question as to what types of unions can be addressed by the family courts.

Within this context, the Philadelphia court, in denying the dissolution of an uncontested, no economic issue case, did Pennsylvania law a tremendous favor: it created a test case for which the Superior Court could weigh the argument offered by the trial court and conclude that, “the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the [Pennsylvania] Divorce Code.” Citing prior case law (Himmelberger), the civil union has a distinct “odor of marriage” and that the only substantive difference between a civil union and a marriage are “sexual orientation and semantics.”

The strong Pennsylvania public policy in favor of granting comity to another state’s laws so long as they do not contradict those of the Commonwealth was also cited by the Superior Court.  Pennsylvania family courts “must recognize their Vermont civil union as the legal equivalent of a marriage for the purpose of dissolution.”

Accordingly, the Superior Court reversed the Philadelphia County dismissal of the complaint and remanded it back to the Family Court to be addressed under Pennsylvania Divorce law. Practically speaking, this decision means issuing a Decree dissolving their civil union upon application by the parties and unambiguously establishing the Family Courts as a venue for dissolving civil unions.

 

 

My colleague Aaron Weems reported this case on April 12. In the spirit of our U.S. Supreme Court, I offer the following concurrence with his blog but spirited dissent from what the Superior Court ruled.

In this published decision, a panel led by former President Judge Bender decides that so long as a reference is made in the pleading to custody modification it does not matter how the pleading is captioned. The problems presented by such precedent are worth some examination.

Contempt in custody is a statutory creature. 23 Pa.C.S. 5323(g). It offers five very specific remedies, none of which involve modification, In many Pennsylvania counties, the procedure for contempt is entirely different than that for custody modification. Scheduling is also handled in a very different way because the issues are typically quite limited.  The Court personnel who schedule these matters do not customarily read beyond the caption of the petition to gather what the petitioner really wants.  So it would be fairly common for a court administrator to direct a contempt petition to a hearing list where several matters are scheduled for disposition in a single day.  A custody modification requires a pretrial statement under Rule 1910.4-3.  Request modification under the contempt rules and you can skip that step.

The next question involves what goes on in the Courtroom. Most judges are going to look at a petition such as the one in this case and tell the petitioner that he or she will hear the contempt but not the modification. But pity the poor litigant who finds himself defending a contempt with a request for modification in a setting where the judge has the time to hear a custody case.  That litigant better walk into contempt court ready to try a modification and to cover the sixteen factors that must be evaluated under 23 Pa C.S. 5328. See S.W.D. v. S.A.R. 2014 Pa. Super. 146 (2014). In the case decided here, the case was remanded because the contempt court failed to cover all of the enumerated factors.

So what have we accomplished? A party can effectively sandbag the opponent if the trial judge permits it.  Both bench and bar face the prospect of stepping into court not knowing what issues will be tried on the date that a “contempt” hearing is scheduled.  Obviously a judge can stop this but it seems clear, that is not required.

The opinion correctly observes that the right to due process was not wholly violated. As the opinion notes, the request for a change in custody was written into the petition filed by the Father. But both the legislature and the judiciary have made it very clear that child custody matters require a full exposition of the facts before any modification is made.  The idea that modification can be “bootstrapped” into a petition premised upon violation of an existing order works against the very principles both the laws and the rules espouse to promote.  And the defense that contempt can be a springboard for a wholesale modification of custody because it is in the “best interests of the child” to do so, is not a strong one.  The opinion goes to some length to describe “signals” that the trial was going to be addressing modification and not merely a contempt petition. The difficulties presented, especially to pro se litigants by reliance on signals rather than the plain caption of the pleadings presents its own problems.  We have published volumes of statutes and rules intended to make clear what judicial avenue a court is taking.  We reported a decision in November, 2012 where a panel of the Superior Court affirmed the concept that modification was a distinct proceeding from contempt.  See P.H.D. v. R.H.D. The idea that a parent suffered a significant change in custody of a child where there are clearly marked legal procedures which distinguish contempt from modification and where there was a “right” way to go about it which was not heeded, creates a disturbing trend.  Moreover, it opens the door to more appeals where the Superior Court will be asked whether the notice of intention to change custody pursuant to contempt powers is “enough”.  This will be fertile ground for appeal but not productive ground. Ironically, from the opinion it appears that the contempt that had been filed was never disposed of, which begs the question of whether this case was appealable in the first instance.

In sum, we have an opinion where substance triumphed over procedure, leaving procedure badly mauled and wondering “What next?”

2016 Pa. Super. 40 (2/18/2016)

 

 

On September 28, 2014 Aaron Weems posted a blog in which he reported on a panel Decision of the Superior Court holding that a Father’s contractual undertaking to pay $10,000 to a Mother each time he sought to modify an agreed custody arrangement was enforceable. When the Mother sued to enforce the contract term and the Father filed objections stating that the contract was in derogation of public policy.  The Trial Court sustained his objections and Mother appealed.  The three judge panel decision reversed the trial court but the ruling was later withdrawn so that it could be considered by a full bench; nine of the fifteen commissioned judges.  The matter was argued in the Fall, 2015 and a new decision was issued on February 5.

The crux of the issue remains the same. The parties indeed made a contract containing this $10,000 modification “honorarium.”  When Mother sought to enforce Father (a lawyer) claimed that while he did sign the contract, the provision could not be enforced.  The law of contracts has long held that some provisions are against public policy and that those are unenforceable.  The typical examples are contracts involving illegal activities.  But Pennsylvania also has a long history of cases holding that agreements that limit child support are subject to being set aside where the Court determines that the arrangement does not promote the best interests of the child.  The Granddaddy of these cases is one where a Mother agreed to $5 a month in child support because she felt confident that helping the Father afford medical school would ultimately benefit their child.

The defendant in Huss v. Weaver 2016 Pa. Super. 24 tried to argue his way into the tent affording protection from his own agreement on the basis that paying the $10,000 charge was in some way bargaining the rights of the subject child.  The Superior Court was not buying that; noting that this was not money coming from support or a fund for the child, but Husband’s own resources.  The Court also found that the agreement in controversy contained a statement that Father was an attorney capable of earning “a large salary.”  It also distinguished a case where the Court voided an agreement that provided for one parent to pay the other parent’s legal fees if she later sought to modify the support agreement formed by the parties. Kraisinger v. Kraisinger 928, A.2d 333, 345 (Pa. Super, 2007).

There is language in this opinion which suggests that at hearing on this claim, the Defendant may be able to assert that he should be absolved of his contractual undertaking if he could show that the $10,000 payment was an impediment to his seeking modification of custody. See Slip opinion at p. 12. That, however, is not a basis to hold the agreement as violating public policy on the basis of the pleadings.  The case was remanded for hearing.

Four of the judges joined in a concurring opinion that cautioned the trial court that if the Defendant develops the right record, he might win. Penalty provisions that do not relate to actual damages are not favored in law.  The concurring opinion also notes that if facts were established that the $10,000 payment was impeding a bona fide action to protect the interests of the child, the court might come out with a different result.  So in the end, all we really know is that this kind of payment clause is not per se a violation of public policy but that its invocation will be viewed with suspicion even when agreed.

Superior Court appeals relating to child custody are supposed to be “fast tracked” in recognition of the fact that in the life of a child, a year is a long time.  But, a land speed record was attained on February 11 when the Superior Court affirmed a Montgomery County Common Pleas order entered less than four months earlier.  The ruling by Judges Panella and Olson with Senior Judge Fitzgerald offers some more insight into what appellate courts are asking trial courts accomplish when conducting trials in custody cases.

The key ruling of the case is procedural.  The trial was conducted in April, 2014. The judge ordered the parties to return the following day for the Court’s ruling.  The Court spoke at length (44 pages) analyzing the factors under the custody statute and then concluding with an oral Order based on that analysis.  The judge directed his ruling to be transcribed so that the Order portion of the transcript would function as the final order in the case.  When the child’s mother appealed the Court’s ruling the Trial Court held that its oral Order was not appealable since it was not recorded on the docket.  This created an issue in its own right because Pa. R.C.P. 1915.10(a)-(b) says, in part, that “The Trial Court shall state the reasons for its decision either on the record in open court, in a written opinion or in the order.”

The rule is ambiguous and the Superior Court clearly saw the problem. The “ruling” is 46 pages and at least 27 are identified as part of the order.  It includes exchanges with counsel where clarification is sought, including a colloquy directed to what nights Father will have if he can work his schedule out.  At one point in the transcript the trial judge candidly admits that his own order is somewhat confusing.  As the Superior Court recites, much of this colloquy is aspirational and far from definitive.  The three judge panel held that a case is not concluded until a written order is prepared and placed on the docket.  Analysis of the custody factors may invite a judicial soliloquy, but the Order itself needs to be quite clear as to who has what responsibilities and when.  To the point, there must be an “Order” docketed in contrast to a direction to make a transcript an order.  Parenthetically the Court notes that the sixteen factor analysis must be completed and, in some form, articulated before the appeal period lapses.  See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013) app. den. 70 A. 3d 808 (Pa. 2013).

The ruling by Judge Jack Panella with Judge Fitzgerald approving is noteworthy.   A fundamental premise of appellate law is that an Order is not an Order until it is filed on the docket whether entered in open court on a transcript or in a written form by the judge.  Absent a bright line test, an order would be “entered” not based upon a judge’s signature but a court reporter’s filing of the transcript.   Litigators know that depending upon county and circumstances, a transcript may not see the docket in the Prothonotary’s office for weeks or months following a proceeding.   Judges are clear that when they send an Order to be docketed, parties and or counsel need to be notified.  The Court reporter is not under that same duty which can cause precious appeal periods to be abbreviated or lost.

While the Appellant/Mother’s position was sustained procedurally in the explicit ruling that custody “orders” need to be drafted by Judges and not uttered to court reporters, her case fell apart quickly after that.  Mother raised eleven issues on appeal.  However, with respect to eight of her issues, the Superior Court found that the brief did not develop these issues except to conclude that the Trial Court ignored the testimony and reached the wrong result.  Quoting from  Lackner v. Glosser¸ the panel states: [A]rguments …where the party has failed to cite any authority in support of a contention…” are waived. 892 A.2d 21,29-30 (Pa. Super. 2006).  See also Chapman-Rolle v. Rolle,  893 A.2d 770, 774 (Pa. Super, 2006).

Two smaller points merit consideration.  In this case, some custody was awarded to a non-party step-mother.  Mother objected but the trial court noted that during this time, neither parent was otherwise available to provide care.  The appellate court buttressed this by stating that the step mother was in loco parentis based upon 23 Pa. C.S. 5324.  Mother made an issue of step-mother’s ingestion of anti-anxiety medications.  But the Superior Court found that the issue of how this affected the child was not developed. Similarly, Mother complained that the child was not interviewed. The Trial Court responded that it assumed that had either parent thought the views of the seven year old merited consideration, they would have offered the child’s testimony.  The panel concludes that it was not the duty of the Court to insist on an interview of a seven year old.  Lastly, the court dealt with the age old bane of all trial lawyers and judges; Appellant said the Court failed to consider the evidence the Mother forgot to bring to the trial.  You can guess how that turned out.

The substantive lessons are worthy of note.  It appears a non-party can have partial custody without becoming a party.  This is not earth shattering because otherwise every day care provider in America would be made a party.  Second, bring your evidence to trial if you expect it to be considered. Don’t assume the Court will take it upon itself to interview a child, although this is a topic that seems to have authority going both ways (Court needs to make record versus parties have responsibility to make the record).  And perhaps most importantly, a brief needs to cite cases or at least segments of the record where the Appellant believes error has occurred. Without one if not both of those legs, there is no appeal to stand on.

 

The process of equitable distribution is multi-stage, often involving one or more conferences with a “master” specifically assigned to the case and who is an expert in equitable distribution. The master develops a recommendation which can be accepted by the parties; negotiated further, or; rejected outright by one or both parties who take exception to it and move the matter to an equitable distribution trial before a judge. The recommendation is just that – a recommended outcome – and while the master’s recommendations often closely mirror the outcome determined by the judge, they are not dispositive and they are not binding once the parties go before a judge.

Due to the propensity for the trial court to seemingly adopt the master’s determination, litigants can get confused as to the weight afforded the recommendation by the trial court or fail to understand that the trial court has no obligation to incorporate in part or in whole the recommendation. It is against this reality that the Superior Court recently issued a non-precedential (i.e., it cannot be cited as law) opinion highlighting the trial court’s ability to fashion an outcome dissimilar from the master’s recommendation.

The case, Waterstone v. Waterstone, Memorandum Decision, No. 444 MDA 2014 (Pa.Super. November 13, 2014), involves the trial court’s decision to deviate from the master’s recommendation on the allocation of marital debt. Wife received 60% of the marital estate and while the master allocated only 20% of the marital debt to Wife, the trial court – recognizing the disproportionate amount of the assets awarded to Wife – decided to allocate 40% of the debt to Wife. Wife’s arguments for a greater portion of the debt going to Husband are persuasive – she alleges that the bulk of the debt was due to gambling and repairs made to automobiles that he was keeping. Nevertheless, the trial court declined to consider the manner in which the debt was accumulated; it cited the well-settled law that since the debt was accumulated during the marriage it is subject to equitable distribution.

Wife’s reliance on the master’s recommendation was misplaced. Though both the master and the judge were considering the same equitable distribution factors, the judge is ultimately making findings of facts and conclusions of law. The trial court judge may make, in his/her discretion, determinations on credibility and evidentiary determinations. What may have persuaded a master at the equitable distribution conference may not have been admitted into evidence at trial.

Though it is unstated, the master’s hearing may well have been a non-record hearing; meaning there was no transcript taken establishing evidence on the record which could be relied upon at the trial level. Absent that record, the trial court would have been the opportunity to place on the record all of the essential facts for the trial court to consider. The trial court, affirmed by the Superior Court, made their own independent decision on the distribution of the assets and liabilities and Wife lost her appeal.

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

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

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

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

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

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

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

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


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

One of the most difficult concepts for lay persons to understand in the law is the rule stating that only relevant evidence is admissible in judicial proceedings.  The concept would seem self-evident as no one would disagree with the principle that courts should not waste time considering irrelevant evidence.  But when faced with a case that directly affects them, lawyers and clients alike tend to want to blur the line because we want to prove to the world that our opponents are somehow unscrupulous or at least unworthy to win a legal point.

My own episode came last week in a custody proceeding where my client was fixated upon the fact that his spouse had been having one if not two different affairs in the 24 months leading up to their separation.  Needless to say, there is no denying the sting of learning that a spouse was involved in such relationships at a time when his or her partner thought that all was either well or, at least satisfactory. But in the custody conference we had with the court, I was having a difficult time persuading my client that the focus of our presentation needed to be on what contributions he had made to the rearing of his kids in contrast with the pain he was experiencing as the victim of infidelity that his two youngsters knew nothing about.

Then I read K.G. v. E.D. a decision by Judge Coonahan published in the Montgomery Law Reporter.  151 Montg. Co. Law Reporter 151 (2014).  The facts as reported in the case are fascinating.

A single woman decides in Fall, 2009 that she will explore what dating possibilities she can find on Match.com.  There she encounters a profile for a man describing himself as divorced.  You can fast forward the next chapter but suffice to say that by Spring, 2010 she is pregnant.  In late December a daughter is born. Father comes to the hospital the day after delivery and all seems to go well until it is time to provide information about him on the birth certificate.  If the opinion gets it right Father is willing to identify himself only with first and last initials and refuses to provide a social security number. Thus he ends up not identified on the birth certificate.

While marriage was discussed Father confines himself to visits to see Mother and daughter several times per week.  When the child is one month old he arrives with a legal form which he says is intended to confirm his rights as father.  She thought the form odd but signed it anyway and life went on.  When Mother’s maternity leave ended, Father said he would keep the child during the day at his home in Northern Delaware and arrange for a nanny.  The plan was supposed to be temporary until the couple actually established a common household but that wasn’t coming about.  At one point Father suggested he keep the child for several days in a row so that the baby could get used to the nanny.  When Mother tried to get the child back, her request was not immediately complied with.  On a day in early March, 2011, our couple meets at a restaurant in Maryland where Father tells her he is actually married but that the relationship is an open one.  He also revealed that the document Mother signed in late January, 2011 was a consent to allow Father and his current wife to adopt the baby.

By March 7 Mother files and emergency custody complaint.  Father responds with a petition to stay the custody action because there is a prior pending adoption underway.  The case then swings over to Orphans’ Court where the adoption is pending with Mother seeking to revoke her consent to adoption premised upon an allegation that the consent was fraudulently obtained.  A stay was briefly in place but that was quickly lifted and the parties entered into a consent agreement by which Father had primary custody and Mother had alternate weekends.

In October, 2011 the Orphans’ Court revoked the consent and dismissed the adoption proceedings. Father appealed that to the Superior Court without success and then failed in his request for the Supreme Court to review the order terminating the adoption.  The fact that the adoption proceedings were in the Superior Court appears to have prevented the family division from hearing the custody case. The custody case began in March, 2013 and continued for fifteen days concluding in August, 2013 with an award of shared legal and physical custody which both parties appealed.

Needless to say, in the custody proceedings, Mother came on strong with what must have been a fascinating record and set of judicial findings from the Orphans’ Court about the means and method Father employed to engineer an adoption of a child he wasn’t too pleased to be having in the first place. Father probably did not endear himself to the Court by appealing the orders terminating the adoption to the Supreme Court and testifying that he did not agree that the adoption was sought fraudulently.

Mother was not without her own baggage.  While she had held several conventional jobs, at some time either before or during the time she met Father she worked in the sex trade as a masseuse.  One also has to question what Mother was thinking when she signed a consent to adoption; a document that is not really that ambiguous in its content.  Mother testified that she had worked in retail and accounting management, areas where one is presumably required to examine documents with care.

Judge Coonahan wasn’t having any of this form a basis for her decision.  As she properly noted, in a custody proceeding the evidence needs to relate to the best interests of the child and not the character of the parties or conduct that is unrelated to raising a child.  As the judge put it at the outset of the trial: “It was a different inquiry {in Orphans’ Court}. {That Court proceeding}… had a different focus, a different responsibility. ….  I make my own credibility findings.”

As the Court observed, it was not there to redress Father’s purported wrongs in trying to secure an adoption.  The determination in custody court was directed to the relative abilities of the parents to perform in the role of parents.

It is clear from this opinion that Mother assumed that the findings of the Orphans’ Court and the Superior Court with respect to Father’s “adoption” proceedings so besmirched his character as to make him an unworthy parent as a matter of law.  Certainly, one would have to reach far to find anything about Father’s conduct or that of his real wife in pursuing adoption that speaks well of their character.  But that is not the standard.  The standard is how well do these people perform as parents to a child now just over three years of age.

One may argue that a person who is found to have sought an adoption wrongfully is, by definition, an unfit parent.  If you review older case law, you can find plenty to suggest that a parent who worked in the sex industry should also be labeled unfit.  We live in a different day and it is one where the word unfit must be reflective of conduct that affects the child both negatively and directly.

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).

Pennsylvania formalized the use of Parent Coordinators in custody cases several years ago when the Superior Court’s rendered their 2008 opinion in the case of Yates v. Yates. As part of the Yates decision, the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of discretion and did not constitute the delegation of judicial authority to a quasi-judicial body (i.e. the Parent Coordinator). The Superior Court also established the parties’ due process rights to a de novo review of the Parent Coordinator’s decision by the Trial Court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

 

The issue of a party’s right to a de novo review and what that review ought to look like was recently considered once again by the Superior Court’s December 18, 2012 opinion in the matter of A. H. vs. C.M., 2012 WL 658 6356 (Pa.Super.). In this case, the mother appealed the Trial Court’s decision not to conduct a de novo review of a decision of the Parent Coordinator and, instead, affirmed the decision without taking testimony or otherwise conducting a hearing on the record; basically, the Trial Court rubber-stamped the Parent Coordinator’s decision.

 

The first step in looking at what happened in the A.H. case is to consider how the parties are able to get their issues before the Trial Court. The basic procedure for appealing Parent Coordinator Orders was written in the Order appointing the Parent Coordinator to the case and allowed a party who disputed the Parent Coordinator’s decision twenty (20) days to file a Motion for review with the Trial Court. Upon filing for a review of the decision, the Trial Court would then make an independent determination as to whether the decision represents an abuse of the Parent Coordinator’s discretion or is contrary to fact or the law.

 

In the A.H. case, the mother made the appropriate appeal to the Trial Court, but found a less than receptive audience when she had her day in court; the mother was only given four (4) minutes by the Trial Court to make her argument. The Trial Court relied upon a summation by the attorneys of the Parent Coordinator’s decision in affirming the Coordinator’s Order. Interestingly, the Court recognized that Yates applied to this process, however, they essentially found that the de novo hearing was not needed in this instance. The Superior Court, in reviewing the appeal, determined that the Trial Court’s decision not to conduct a de novo review was wrong and that Yates firmly establishes that Parent Coordination has its own procedure, is subject to due process, and that the Trial Court may not deny mother a hearing de novo. By not giving her the opportunity to present her case in its entirety, the Superior Court found she was denied due process rights.

 

As a result, the Superior Court reversed the Trial Court’s decision with respect to mother’s appeal of the Parent Coordinator’s Order and directed that a de novo review be held by the Trial Court within thirty (30) days and that the Trial Court outline the Parent Coordinator’s decision in a manner consistent with the Superior Court’s holding in Yates. Worth noting is that the Trial Court may reach the exact same decision as they did the first time, but at least the mother will have had the opportunity to offer evidence into the record.

 

An interesting side note to this case is that it gives a glimpse into the level of frustration courts can reach when dealing with "frequent flyer" parties who are always bringing each other back to court. The Superior Court points out the reference to the Trial Court not wanting to see the parties back over "some talent show communication." I suspect these individuals were very familiar to the Trial Court judge and had likely litigated similarly inane issues which unnecessarily took up the Court’s time – which is exactly why a Parent Coordinator was appointed in the first place. Access to the Courts, however, is a fundamental right and the Superior Court cites the Pennsylvania Code of Judicial Conduct when addressing the comments from the Trial Court; such comments from the bench could have a chilling effect on people and discourage them from bringing important issues to the attention the court.

 

Parent Coordination can be a useful tool to address "talent show communications" but it is the procedure for being able to appeal those issues which allows for the overall process to effectively operate in a fair manner towards both parties. The opinion of A.H. v. C. M. affirms the Court’s decision in Yates (which, coincidentally, featured my colleague,

 

Natalie Famous, Esquire as the Parent Coordinator) and definitively establishes the due process procedure for addressing appeals of the Coordinator’s decision.

 

Referenced cases can be found at: Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008); A. H. vs. C.M., 2012 WL 6586356 (Pa. Super.)