This writer grew up as a Republican and recalls with some fondness the wars in the 1970s between liberal “Rockefeller” Republicans and conservative “Reaganites.”  The fight was for the soul of the party, whatever that was.  But those battles were pretty tame compared with today.

On March 18 of this year Republican Jeff Bartos announced for the Senate seat now occupied by Pat Toomey.  Two months later Sean Parnell announced that he would contest the Republican nomination.  Suffice to say that there are some social and ideological issues separating these candidates despite their common Republican heritage.

A week ago, a certain former President announced he was backing Parnell.  Bartos responded that Parnell was unelectable because of his history of being charged with domestic violence by his former spouse.

Based on reports in the Philadelphia Inquirer here is what has emerged so far.  In the Summer of 2017 and again in 2018 Butler County entered temporary protection from abuse orders on Mr. Parnell.  In the first incident, he was ordered to leave the residence he shared with his spouse.  Orders of this kind are entered by judges premised upon allegations that the defendant put the plaintiff in fear of immediate bodily injury.  These temporary orders are entered without a formal hearing although the rules require that a hearing with testimony must take place within ten (10) days unless the parties agree to postpone a final decision.

Hearings of this kind are often postponed.  A judicial finding of abuse can result in the eviction of a defendant from his/her residence for up to three (3) years.  That’s a long time, so the ten-day hearing is often delayed by agreement while the couple negotiate.  In the 2017 incident the case was withdrawn by agreement of both husband and wife after 13 days.  In 2018 when a second set of charges were filed by wife there was a hearing, but a judge dismissed, suggesting that the court found no danger of immediate bodily harm.  In 2018 Mr. Parnell counter sued claiming he was the victim of his wife’s physical abuse.  It seems that request was denied as well.

Under Pennsylvania law, parties can ask that these records be expunged.  That seems to have occurred here.  It appears that the news we do have is derived from records retained by the Butler County Sheriff.  The sheriff is tasked with serving orders on people charged with civil abuse. They retain these records because law enforcement is often involved in enforcing “stay away” orders under the Protection from Abuse statute.

We don’t know the specific allegations which Parnell’s wife levied in either of her cases.  But she knows, and chances are she kept her records.  Abuse charges can range from “I was pushed against a wall” to “the first shot went over my left shoulder.”  Statistically, almost half of filed protection cases are either withdrawn (21%) or dismissed because the plaintiff does not appear for the hearing (26%).  Of those that are tried almost 80% result in a finding that protection was needed.  But only 22% of the cases are tried and another 19% are resolved by some form of agreement.  Many judges and lawyers see the system as one rife with efforts to use the law to gain exclusive possession of a house or an edge in custody proceedings.  Meanwhile the Pennsylvania Coalition Against Domestic Violence reported that 109 people were killed in the Commonwealth last year in domestic confrontations, 40% by family members.  Domestic violence has no demographic profile.  It occurs among wealthy and highly educated families as well as those not so advantaged.  People of all stripes are angry, and it is showing by the fact that Pennsylvania routinely has about 750 abuse petitions filed each week.

So, until we know more about what happened between Candidate Parnell, his wife and his four kids, it’s not really fair to say whether his conduct at home should affect his suitability to hold public office.  All we really know today is that one case was withdrawn by agreement and a second was dismissed because wife did not meet her burden of proof that there was bodily harm, whether real or threatened.  But with a custody case pending and a trial set for November, it would seem clear today that his conduct with his family will continue to be scrutinized and campaign operatives will continue to search for the expunged records of what was alleged in the past.

We live in an age when it is oh-so-easy to incur debt, sometimes without even knowing it.  The moral of this story is that clients need to try to remember the documents they signed before their divorce is over.  And even then, old agreements can linger even after a judicial decree states that all rights are over.

Katherine and Mark Moore were married.  Mark owned a business called J.J. Moore Sales, Inc. in Erie, Pennsylvania.  In 2002, he secured a small business loan from KeyBank for $200,000.  One of the conditions of the loan to the corporation was that both Katherine and Mark had to individually guaranty the loan.  The guaranty would last until the loan was paid in full and the bank/SBA had no duty to seek payment from any other source before calling in the guarantees. Can you tell where this is heading?

Five years later, J.J. Moore, Inc. filed for Chapter 11 protection (a reorganization).  The plan was approved by the Court in 2007.  A year or so after the plan was approved Mark filed a Chapter 7 (liquidation).  He secured a discharge in April 2009.

Ten months before Mark filed for personal bankruptcy, Katherine filed for divorce and equitable distribution.  While that divorce was pending Mark secured his personal bankruptcy discharge (April 2009).  Three years later, in May 2012 the parties reached a settlement agreement.  It contained some language familiar to all of us who practice family law.

“[The Parties] represent and warrant to each other that they have not incurred debts or made any contracts for which the other…may be liable….Each party agrees to indemnify the other from any debts or contracts that may exist or come into existence in violation of this clause.”

A divorce decree adopted these terms.  In 2014 the Small Business Administration began to pursue Katherine for the balance due on the J.J. Moore, Inc. loan.  Katherine sought administrative relief within the SBA claiming statute of limitations defenses, equitable estoppel, and failure to join Mark as an indispensable party.  SBA denied all these defenses and began a garnishment of her wages.  In 2017 she sued her former husband claiming that this was a violation of the indemnification clause.

Mark’s defenses merit careful scrutiny because they prevailed at trial and on appeal.  First, the debt SBA was pursuing was not a debt he contracted but one which the corporation contracted and which he and Katherine guaranteed.  Bear in mind, this was his business in the sense that he owned shares of stock, but it was not technically, his debt.  Second, because Mark and Katherine each guaranteed the debt of J.J. Moore, Inc., the matter of whether the bankruptcies released the debt as to corporation and Mark individually, was immaterial. Katherine had individually guaranteed debt, so the bank/SBA had rights against her without regard to what happened in the corporate or personal bankruptcies.

The gravamen of Katherine’s appeal was that Mark had warranted in the settlement that her husband had agreed to indemnify her for any contract for which she might be liable.  She asserted that this was the clear intent of the parties as expressed in their agreement.

Mark’s response was that while he did own the business this was her individual contract and the debt for which she was held liable was not his debt but J.J. Moore’s.  The guarantee was clear that SBA had no duty to seek payment first from the corporation or its owner.  The note itself was signed by him but his signature indicates he signed as “President” of the corporation and not individually.

The appellate panel decision observes that while both suretyship and guarantees are agreements to assume liabilities for another, the creditor may seek payment from the surety without making claim on the debtor while the guarantor is only liable if the debtor defaults in its obligation. McIntyre Square Assoc. v. Evans, 827 A.2d 446, 452, n.7 (Pa. Super. 2003).  Pennsylvania statute, 8 Pa.C.S. Sec. 1 states that suretyship is presumed unless the instrument specifies the contract to be one of guaranty.

The case does not tell us whether the business was marital or whether it still existed when the divorce was concluded.  What did exist were a Chapter 11 disposition as to J.J. Moore, Inc., and a Chapter 7 discharge of its President from personal liability.  It may well be that the lawyers who concluded the divorce in 2012 never knew that the SBA was still lurking in the marshes with an unpaid debt and a personal guarantee of an individual who had no bankruptcy protection.  If the Chapter 7 discharge of Mark Moore incorporated the guarantee, it’s not clear to this writer whether an indemnification clause in the property settlement agreement could have changed the outcome.  Put differently, can a person discharged from a debt still be held liable on the same debt if he agrees to provide indemnity to a co-obligor in a subsequent transaction?  Suffice to say, contingent debts are out there and can still bite unless addressed in the setting of equitable distribution.

Katherine Moore v. Mark Moore, 974 WDA 2020 (Aug. 27, 2021) non precedential

Mark R. Ashton (vaccinated)

This week both the Washington Post and the Chicago Sun-Times reported on a case in Chicago where a court decided whether a parent who was unvaccinated against COVID-19 could continue to visit with her 11-year-old child.  The judge initially ruled that visits would be suspended.  The news reports indicate that the subject arose during a remote (e.g. Zoom) hearing regarding child support.  Yesterday, it was reported that the judge had reversed the ruling.

For reasons this writer cannot understand, vaccination seems to have become a constitutional rather than a public health issue.  What makes this so unusual is the fact that vaccination is scarcely new and until the last year was almost entirely non-controversial.  For example, in Pennsylvania, to attend public school a child must be vaccinated against tetanus, diphtheria, acellular pertussis, polio, measles, mumps, rubella, hepatitis B and chickenpox.  State regulations do allow for medical exemptions as well as religious and philosophical exceptions.  There have been cases where religious and philosophical issues have been litigated but they have been quite rare.  Yet, for some reason, this communicable disease (Covid-19) appears to have tapped a wellspring of opposition despite a history of 2 to 3 billion vaccinations this year with few serious adverse reactions.  Suffice to say, if large swaths of the population invoke their philosophical rights to avoid vaccination, we better plan on seeing a resumption of childhood disease which used to kill 20% of children under 5.

Setting that topic aside, courts have a tricky path to follow when parents disagree about vaccination of a child.  According to the US Supreme Court parents have a fundamental right to raise their children as they wish.  Meanwhile, the Supreme Court has carved some noteworthy exceptions into that Rosetta stone.  In 1972, an 8-1 majority of the US Supreme Court held that Wisconsin had the right to insist that children be educated through eighth grade but not beyond that level.  Wisconsin v. Yoder, 406 U.S. 205.  In an earlier case, Prince v. Massachusetts, the Supreme Court found that the right to practice religion freely does not include liberty to expose the community or its children to communicable disease or the latter to ill health or death.  “Parents may be free to become martyrs themselves.  But it does not follow that they are free, in identical circumstances, to make martyrs of their children.” 321 U.S. 158.

The principle involved has a Latin name, parens patriae.  Religious and parental rights must be subordinated to society’s right to keep kids safe.  Speaking for the majority in Prince, Justice Wiley Rutledge wrote that states “may restrict the parent’s control by requiring school attendance, regulating child labor and in many other ways.” Thus, a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds.”  The Court cited a 1905 case, Jacobson v. Massachusetts, where an adult was fined for failing to accept mandatory smallpox vaccination after the County had declared an emergency and state law authorized emergent vaccinations.  In Jacobson, the person fined asserted as his defense that he had a history of adverse reactions to prior vaccinations.  The fine was upheld in a 7-2 decision.  Private rights are subordinate to public health and safety.

In so ruling, the Jacobson court made clear that public health and safety needs were subject to judicial scrutiny to avoid abuse.  The Court added, “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”  But, the existence of controversy over the efficacy of the public health regulation does not invite to evaluate whether the regulation was the best solution.  “The fact that the belief [incorporated in the health regulation] is not universal is not controlling, for there is scarcely any belief that is accepted by everyone.  The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.”

Turning back to our Chicago case, we start with a jurisdictional problem. The issue before the court that day was not vaccination; it was not child custody.  The matter to be decided was child support.  Neither the litigants nor the Court came prepared to evaluate what preventative measures were needed to keep the child safe.  So, the Court was wrong to have decided a matter not scheduled for resolution, viz., the child’s health needs.  For that reason alone, the judge was correct to reverse any ruling that went beyond the support needs of the child.  That part is easy.

However, the vaccination issue is well within the province of a court deciding custody.  Nevertheless, the regulatory environment is not nearly as clear as it was in 1905.  In Jacobson, the state had passed a law expressly authorizing local health officials to mandate vaccination.  The County officials were enforcing that law when they “stuck” Henning Jacobsen with his $5.00 fine.  Today, the chain of command is not so clear.  Despite 1,300,000 cases and 28,000 deaths there seems to be no legislative will in Pennsylvania to force this issue.  Judges are creatures of law and they take an oath to adhere to legislative or executive precedent in deciding cases.  Certainly, both the federal and state executive branches are exhorting the benefits of vaccination.  But no one is mandating it.  On August 10, Pennsylvania’s governor mandated state employees in health facilities and prisons either vaccinate or accept weekly testing.  So, as a judge, whatever my views may be personally, I have no authority to require vaccination beyond what either the legislature has enacted, or the governor has issued by proclamation.  Although judges can sometimes miss this in the heat of battle, it is not their job to substitute or inject “their” preference into a custody dispute.  It is to assure that the best interests of the child are protected when viewed from a societal viewpoint.  Thus, we have observed one custody officer indicate that he would not decide whether a child should or should not play football because there was no societal interest in that question.

In our Chicago case, we have an eleven-year-old child; too young to be vaccinated.  We have one parent who is vaccinated but current medical thinking is that even a vaccinated parent can carry the virus and infect a child.  The other parent chooses not to be vaccinated.  The child’s custody schedule mandates visits to both households.  Can a court order a child vaccinated where parents disagree, assuming there is authorization to administer the vaccine to kids?  Can a Court suspend visits until a parent is vaccinated as a matter of protecting the child?  When I started writing this post, I would have said yes.  But as I walked through the judicial precedent cited above, I have become less sure.  Lots of government agencies are recommending it.  Yesterday, there were 2,300 new cases in the state.  Yet, no state agency is requiring vaccination; even in state run health care facilities.  If I am a judge my responsibility is to follow the law, not to make it.  The idea of suspending visits may sound appealing but note the prescription of what Justice Harlan wrote in Jacobson.  The public health enactment is not valid if it does not effectively solve or ameliorate the health condition involved.  If a vaccinated mother can still transmit Covid-19 what has her inoculation done to protect the child?  The answer might be it contributes to attainment of what epidemiologists call herd immunity.  But, shouldn’t the court then direct vaccination of the entire herd?

Defined benefit pensions, the ones that payout monthly, are strange animals.  They are rare today except where unions and public agencies are found, and they can produce some odd results.

Carl Jagnow married his wife Sharon in 1983.  They both taught school and both participated in the Public-School Employment Retirement System (PSERS).  Husband retired in 2003 because of health issues and he was eligible to put his retirement into pay status at age 55.  When he applied for his retirement he was asked to select between a single life benefit (his) or a benefit that would pay a portion of his pension to Sharon after his death (joint and survivor).  In most settings, couples opt for the spousal benefit option.  The monthly payment is less, but usually not a lot and once the participant spouse dies, the survivor gets a partial benefit for his/her life.

In this case, Carl chose the higher paying single life annuity.  After all, Sharon was also in the PSER system and accruing her own benefit rights.  So, Carl took the higher single life payout of $2,900 a month and supplemented it with his social security and some IRA money.

In 2013 Sharon also had some health issues and, at age 58m following Carl’s lead, she also took the single life annuity of $3,769 a month.  She became social security eligible in 2013 at age 62 and took that benefit.

In 2013 Carl filed for divorce.  The matter went to a hearing with the primary issue being what to do with the pensions.  Wife argued that their decisions, while married, to each take single life annuities was effectively an agreement to leave things as they were.  Husband said the pensions were marital property and needed to be divided equally.  An expert was retained from one of the pension actuarial firms in our state, Conrad Siegel, Inc.  The expert concluded that fairness would dictate that should husband die first, a portion of wife’s annuity should be paid to her husband’s estate.  The master and the trial court approved the expert recommendation.  Wife appealed.  After all, if husband did die, why would money due to her from wages deferred until retirement go to the estate of someone no longer living?

Noting that it was applying an abuse of discretion standard, the Superior Court published decision of Judge Maryjane Bowes found that the trial court scheme was not an error.  “Pension funds accrued during marriage, including state employees’ pension funds, constitute marital property that is subject to equitable distribution.  See Hess v. Hess, 212 A.ed 520, 524-5 (Pa. Super. 2019).  In ordinary cases, the court can adopt either an immediate offset scheme where the pensions are given a present value and then divided, or the court can use a deferred distribution scheme where the division occurs at retirement.  Here, the parties elected to put their pensions into pay status well before separation.  Once the choice is made between single life or joint and survivor annuity, that choice is irrevocable.

While there is merit to wife’s argument that both parties contemplated that they would not be sharing pensions when they took them, the argument kind of misses the mark.  Husband ceased working and started to take his pension in 2003. That income went into the marital household and presumably kept it going.  Wife continued to work another 10 years, with additional compensation being deferred during the marriage to augment her retirement benefit.  Had the court adopted wife’s approach, husband would have never seen any benefit to that additional decade of pension contributions.  It would have been effectively rendered “post separation” even though the marriage was intact while it accrued.

This issue could have been addressed via an immediate offset approach.  At divorce, husband was 72 and had a single life annuity of $2,900.  Wife was 66 and had a single life annuity of $3,739.  If we look to Social Security tables, husband has a life expectancy of just over 13 years.  Wife has an expectation of 19.65 years.  Thus, if each die “as scheduled” by the Social Security administration, husband would collect $452,000 and wife would get $882,000.  The problem with handicapping an immediate offset distribution is that there are more and more factors that go into the handicap as parties get older.  Both these parties retired early because of health issues.  We don’t know precisely what ailed them, but the typical actuarial table is built on a broad statistical population.  Some time ago we handled a case involving a teacher pension where the teacher was afflicted with multiple sclerosis.  There is demographic data to show that people with MS do not live as long as the general population.  But even if you pair a physician with an actuary, neither expert is ready to opine with a reasonable degree of certainly just how many years are pared from life for the annuitant who has MS.  In addition, MS affects people in different ways, just as there are cancer survivors who individually respond well to treatment while others have a form of the disease that could more likely recur or bring about an early death.

The lesson here is that defined benefit pensions are tricky. There was a superficial appeal to wife’sm “You keep yours; I’ll keep mine” approach.  Meanwhile, the difference in approach would have brought her a huge benefit advantage over time.  So, be careful out there and when dealing with these deferred compensation arrangements, get the help you need.

Jagnow v. Jagnow, 2021 Pa. Super. 133 (June 29, 2021)

This will not be a political piece.  There are enough of those.  But as just about everyone knows, on July 1 the New York attorney general and district attorney indicted both the Trump Organization and its chief financial officer on charges of income tax evasion.  The gravamen of the charges is that the Trump Organization assisted employees in evading income taxes by either paying bills for them or providing perquisites for which no income was reported and thus no taxes paid.

Most readers also know that this comes out of a longstanding fight over the books and records of the Trump Organization; a fight that went to the Supreme Court of the United States.  140 Supreme Court 2412 (7/9/2020).  This case featured the Justice Robert’s quote that the public “has a right to every man’s evidence.”

It turns out in this instance, while the combatants were clashing over disclosure via subpoena, the Manhattan district attorney had discovered what is best termed “every woman’s evidence.”  That evidence was in the hands of Jennifer Weisselberg, the divorced daughter in law of Trump CFO Allen Weisselberg.  According to The Daily Beast in an article published on July 12 in a divorce deposition given in 2018, Barry Weisselberg (son of the CFO of Trump and an employee of the organization) indicated that one of the perquisites working for Trump yielded was $98,000 in annual tuition payments to Columbia Grammar & Preparatory School.  According to the Beast, CFO Allen Weisselberg would prepare the drafts to the school but Donald Trump signed the checks for the tuition.  The indictment alleges that the practice had been ongoing since 2012, thus several hundreds of thousands of dollars in tuition were involved.

Jennifer Weisselberg also had copies of her joint tax returns with her former husband.  They reflected wages in 2010 and 2011 averaging $133,000 per annum.  Meanwhile, Jennifer and her husband lived in a Trump owned building at 100 Central Park South, a block west of the Plaza Hotel.  In deposition, Barry Weisselberg is seen testifying that he was “given” the apartment temporarily, although it appears that the practice went on for years.  He professed to have no idea what the fair rental value of his unit was worth.  Today’s rents for that building range from $5,000 to $20,000 a month according to the Beast.  The indictment alleges other untaxed perquisites included Mercedes lease payments and various other compensatory arrangements.

Depending on what year you look at and whether you believe what is reported, the Trump Organization is a $300 million to $600 million company when measured by revenue.  Their accounting work is done by the 28th largest accounting firm in the United States.  Consequently, one would expect that there was a thorough awareness of Section 162 of the US. Tax Code.  It states that, in general “There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business….”

Unfortunately, many divorce clients seem to think that their businesses are entitled to make these side arrangements even though they disguise income or, in other instances have no relationship to the associated business.  The indictment earlier this month had to do with state and city income taxes, but the federal rules are essentially the same.  When you pay for your employees kindergarten or college tuition or you provide them with a stylish crib to sleep in, you are rarely doing it out of charity and, if you are, it is termed a gift, and gifts are going to be looked at very carefully in a setting where the donee is also an employee, independent contractor or has a similar business relationship.

In recent years accountants who see problems like private school payments or company cars that are not properly expense allocated have been pushing back when clients try these schemes.  Section 6694 of the Tax Code puts them on the hook for “unreasonable positions.”  There is material about this on the AICPA website.

But chances are that an accountant is not going to know whether the unit on Central Park South is unoccupied or employee occupied.  Taxpayers all need to realize that if they want to try these off books maneuvers or to play the deduction game aggressively, they may have some protection from a spouse who is on joint returns.  However, once a divorce occurs and the statute of limitations runs on those joint returns, that former spouse is now an eligible receiver under the IRS Whistleblower program.  That’s IRS Publication 5251.

So be careful out there.  The Biden Administration has promised that IRS enforcement is going to be making a comeback now that the Brookings Institution’s concludes that 1 dollar of every 6 eludes federal tax.  Don’t let that comeback include you.

We have written about 529 Plans a few times before.  The major points of those articles are: (a) 529 Plans are marital assets under Pennsylvania law; and, (b) 529 Plans can be UTMA (Uniform Transfer to Minor) Accounts in which case they are gifted property and outside the typical scope of marital assets.

Another common problem encountered in the divorce process is a collection of unbalanced 529 plans.  Parties marry and have children. They begin to fund 529 Plans as the children come along.  They have one child who is 14 for whom they have set aside $75,000.  They have another child who is 5 for whom they have set aside only $5,000 when they divorce.  The easiest answer is also the one least employed; that is to commit in a property agreement to devote the funds of both accounts for education of the children and continue to fund the accounts after divorce.  Most clients do not agree on the latter point, perhaps because funds become scarce when couples divorce and assume the costs of two residences, alimony, child support and all the rest.

So, what can be done about the $70,000 disparity?  If the older child’s account is regulated by UTMA, the answer is nothing.  The money has been gifted and belongs to the child except where UTMA allows the custodian to employ it during the child’s minority.  But if the accounts are ordinary 529s the transfers can be accomplished because the funds still belong to the account owner.  Rule 1 should be to provide for a rollover in the property settlement agreement and add the words “to the extent such transfers can be accomplished without tax impact on account holding spouse.”  This builds a safe harbor in case laws or regulations change.  Second, a true arithmetic balance may not be fair to the elder child.  A true balance would leave each child with $40,000.  That would seem fair except that the elder child has only four years of growth before they start to draw on the account for college or other qualified expense.  The younger child has 13 years.  If both accounts are yielding 8% annual returns, the older child will have roughly $54,419 at age 18.  The younger child would have roughly $115,500 at the same age.

Now, if you like statistics, realize there is another factor, inflation.  Since 1980 the Bureau of Labor Statistics informs us that overall inflation has been 228%.  Alas, college costs have escalated by 1184% during a corresponding period.  So perhaps the adjustment is superfluous or worse.  In the end, the transfer can probably be done.  But work closely with the custodian of the securities (the brokerage) and don’t leave your accountant out of the mix.

The website MarketWatch publishes a kind of Dear Abby column related to family finances that touches on some very real subjects confronting families today.  On July 2, columnist Quentin Fottrell published a column in which a wife laments her husband’s spending habits and wonders whether she could be liable for his debts should he die.

The wife professes that she loves her spouse, but they have completely different perspectives on how to spend money.  Husband is reported to have $75,000 of credit card debt and is shopping for $8,000 of season tickets for a local sports team.  Wife wants to know if he dies whether she could be liable for these kinds of debt because she is has significant consumer debt of her own.

This problem is scarcely unique.  People can really adore each other while having completely opposing views on many subjects, including finance.  Unfortunately, the legal world doesn’t have many useful remedies to address financial conflict.  The law says there are four kinds of debt.  As between you and your creditors, there is individual debt and joint debt.  American Express can’t sue you for the $75,000 your spouse ran up on his Platinum Amex unless you signed up for the debt with him.  If hubby dies, they can only recover that debt if he has more than $75,000 of assets in his name alone.  But suppose the day comes where the debt climbs to $100,000 and you can’t stand it anymore.  Alas, in a divorce, if that debt accumulated while you and your spouse were married, the court is supposed to divide the debt between the two of you equitably.  You might be able to show that the entire $100,000 was spent on antique car restorations, a collection of handmade bowie knives and tickets for the Penguins.  Some judges and hearing officers will be sympathetic and stick him with most of the debt.  However, many others adopt the laissez-fair view that if you stayed married while he racked up the debt, you get your half of it in sickness and in health.  The case law on this is very spotty and, more often than not, the debt includes things that appear ego driven while other things are clearly family needs (e.g., summer camp, unreimbursed medicals, a stint in rehab).  This may sound very inequitable but courts often take the approach that it is their job to divide the debt as it stands on the date of separation rather than sit through a lengthy rehash of how one spouse tried without success to rein the other’s spending in.  Rare are the cases where the debt amasses quickly.  More typical is the situation where a spouse compensates for his/her unhappiness by purchasing “things”. Another common problem is the spouse who quits or loses a job only to decide that now is the perfect time to open a sporting goods store a mile away from Dick’s or an ice cream parlor next to the Dairy Queen.  That debt is going to be marital debt even if you told your spouse that the idea was crazy, and you were against it.

So, what can you do?  Hate to say it, but it is time to talk with a divorce lawyer before the crisis escalates.  To ignore the problem means that what you saved for retirement or the rainy day gets pitched into the pyre of marital debt.  Understand that your protests along the way to financial Armageddon will be considered in divorce but may also be completely ignored when the property distribution is made final.  Even things like the $100,000 loan your spouse took to educate the kid from the former marriage is still marital even though you received essentially “zero” value for the debt.  That’s a bad place to be but only you can stop the debt train before it leaves the tracks.

For better or for worse, divorce lawyers get a front row seat to the home real estate market because their business often involves selling a family’s most prominent asset.  The last 12 months have made for an exciting game as home prices have hit seemingly impossible highs, driven by crazy low interest rates and a surge in demand that is not easily explained.

Clients and realtors are reporting that homes are commanding multiple bids.  In a day when homes can now be toured via the internet, it is not uncommon for a home to have hundreds of views per day.  Buyers and sellers are both reporting market fatigue with the former having to structure bids with price escalators that go far beyond asking price and sellers have to interpret those bids and spend days away from home while hordes descend to see the residence “live.” The market has not been this active since 1987 when buyers often camped out at a residence at dawn on the morning a house went on the market.

But some of the offers that we are seeing come pregnant with problems.  Many buyers are waiving home inspection clauses, but few can avoid the mortgage contingency and the appraisal it requires.  Historically, homes appraised based upon transactions that had closed.  We understand that appraisers are getting the green light to use signed contracts instead because home prices are moving so fast, especially in the $300-500,000 range.

We are also hearing stories of buyers tying the knot to buy a house but then defaulting on the transmission of the down money that is typically due in 3-5 days.  This seems to reflect a buy first think later mentality.  Then we have seen a transaction where the offer exceeded asking price, but the sale price would be adjusted to conform to the lender’s appraisal.

Some of this is clearly frenzied buying based on low interest.  Real estate economists in New Jersey are reporting 12% annual increase in 2020 and 2021 and predicting another 3% in 2022.  Pennsylvania seems to be following suit.  Economists note that for each percentage point increase in mortgage rates the buyer’s buying “power” declines by just under 9%.  A small 3-4% correction in home prices is forecast in 2023.  What seems so curious about this market rally in home prices is the fact that it is heavily concentrated in more modestly priced homes.  The market for a house over $1 million is certainly active, however, in the Philadelphia region buyers at that level seem far pickier about the bids they place.

We have also detected that a lot of the buyers in the lower end are looking to fix and flip older homes in established neighborhoods.  These investors are working a narrow time space because increased interest rates could vastly erode the pool of eligible buyers able to qualify to acquire the flipped house.

On May 26, the Superior Court issued an en banc ruling addressing whether a Court can order a child custody litigant to turn over records of her treatment compiled in the context of a MHPA proceeding.  The unanimous decision of the nine-judge panel was that those records were not subject to disclosure.

The opinion appears fairly definitive.  The Lackawanna County trial court was faced with allegations of a mother’s chronic instability in the context of an emergency petition for special relief.  Faced with the hard stop provisions of Section 7111 of the Mental Health Procedures Act (title 50) the Court appointed a guardian ad litem to insulate the “confidential records” from the Father, while allowing the records to be reviewed by the guardian.  Meanwhile, the Court also ordered psychological evaluation of the parties under Pa.R.C.P. 1915.8.

The conclusion that MHPA records should not be made available had many supporting elements.  Absent an “explicit waiver” by the party whose records are sought, the statute makes clear that the legislative policy was to provide confidentiality as a mean to promote treatment and that production of these records undermines that confidentiality.  Moreover, a current evaluation represents the best evidence of what is the current mental health issue, if any.  The Court was also emphatic that participation is a custody case would not be construed as a waiver of the right to assert confidentiality.

In cases such as this, there is a tendency on the part of trial courts to error on the side ordering disclosure.  This opinion makes clear that such an approach is a reversible error and an order mandating disclosure is one subject to an instant appeal under Pa.R.A.P. 313.  To its credit, the trial court did stay the disclosure order pending appeal.  Candidly, on the strength of this opinion one must ask whether an agency with records compiled under 50 Pa.C.S. 7111 should comply with such an order even if a stay is denied or never sought.

This case is consistent with M.M. v. L.M., 55 A.3d 1167 (Pa. Super. 2012) and Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009).  It makes clear that appointment of a guardian ad litem is not a path around the problem and that a current “best interests” analysis in a custody proceeding does not overrule a statutory provision mandating confidentiality.

C.L. v. M.P. 2021 Pa. Super. 107 (May 26, 2021)

Recall March of 2020.  The country more or less stumbled into its first pandemic in a century and by the third week of March, Pennsylvania and its judicial system were essentially closed.  For the next 10 weeks we were told to quarantine.  Schools, office buildings, almost every form of activity was restricted or closed.  Friends and clients opined that this had to be good for business.  The business would be suppressed for a while, but a house filled with kids schooling and adults working under one roof would seem to be an incubator for marital discord.

Well, according to the Wall Street Journal’s June 26 edition, it has not panned out that way.  According to data collected by Monmouth University Professor Gary Lewandowski, the preliminary data indicates that couples may have actually developed an appreciation for each other given what they endured together.

Monmouth is a polling powerhouse.  Its data from January of this year reflects that 7 of 10 couples in a relationship reported satisfaction from it: up 10 points from pre-pandemic levels.  10% of respondents said they argued more while 16% reported arguing less during 2020.  One-third of respondents thought the last year had brought an improvement in their relationship. Twelve percent thought things did deteriorate.  Perhaps most unusual was the self-reported “troubled marriage” index.  In 2019 it ran as high as 40%.  The 2020 survey saw that decline to 29%.

People in the single community also reported changes to their approach to relationships.  Surveys done by and reported a shift in what their clients wanted.  The respondents looking on these sites to “hook up” or seek other kinds of short-term gratification shifted towards more caution in deciding who to interact with and greater interest in sustained relationships.

Dr. Lewandowski concludes that these shifts may be temporary.  However, he also leaves the impression that many of us may have learned something about ourselves and about the people we live with from the 13 months we have endured.  Early in the process almost all of us knew of someone who worked in an industry decimated by school and business closures.  Until February, I knew of no one who died from the coronavirus.  Today, I can count five friends and acquaintances who are no more.  604,000 deaths, enough coffins to stretch from Philadelphia to Chicago does remind us that perhaps we should pepper life’s frustrations with a measure of gratitude and enjoy what we have while pursuing what could be.