Part of what makes the law fascinating is that there are certain legal issues that have no clear solutions. In many cases, both sides have equal merit. The matter of whether incarceration should reduce or eliminate a support obligation is one such question.
The Supreme Court of Pennsylvania ruled on this question in Yerkes v. Yerkes, 824 A.2d 1169 (Pa. Supreme 2003). In Yerkes, the court found that criminal conduct was a volitional act and that where one acts in a way that results in incarceration, that person should not be able to use his crime as a basis to avoid a support obligation.
Even though the Supreme Court is the state’s highest judicial authority, the controversy has not ended. In 2000, Melissa Plunkard gave birth to a child by John McConnell. She sought and obtained an order of $275 a month in child support. In 2003, Mr. McConnell was convicted of a crime and sentenced to 6-12 years. In February 2007, Mr. McConnell filed to terminate his support obligation premised upon the fact that his incarceration prevented his earning income. He also sought the elimination of support arrearages that had begun to accrue before his incarceration and continued after he was confined in prison. Under Yerkes, the law would have been clear. But, in 2006 the Supreme Court issued a Rule of Civil Procedure (1910.19) that gave courts the authority to modify or suspend support orders where it was found that the person owing the support had no income or ability to pay and that this condition would continue for the foreseeable future.
So what happened to Yerkes and the principles it espoused? In a word, it fell victim to federal laws regulating federal subsidies. As welfare costs skyrocketed in the 1970s and 1980s, the US government decided to get involved in the collection of child support. Beginning in 1984, the US government began to issue regulations to states. The regulations essentially dictated how state child support systems would operate. If the state failed to comply, federal welfare subsidies to the state would be reduced or eliminated.
To encourage states to collect child support, the system is now rigged with incentives for collection and disincentives for states that have large pools of unpaid support arrearages. Needless to say, from 2003 forward, Mr. McConnell’s support account was an expanding pool of unpaid child support. This caused problems for the state when McConnell’s arrearages, and those of the thousands of other Pennsylvania inmates, came under federal scrutiny. It was not enough to tell the US Department of Health and Human Services that these sums were presently uncollectible. Instead they had to be “written off”. Thus, in 2006 Pa. Rule of Civil Procedure 1910.19 was born and the principle of Yerkes (even parents in jail owe support to their children) was subordinated to the demands of the federal bureaucracy.
But wait. At the insistence of the federal government, Pennsylvania had passed another statute that would have “trumped” the 2006 rule in part. Mr. McConnell was jailed in 2003. He did not seek modification until 2007. The Support Law, 23 Pa. C.S. A. 4352(a) states that except where a child is emancipated, there can be no retroactive modification of arrears. The exceptions to this rule are very narrow. They include a physical or mental inability of the petitioner to file the petition; misrepresentation (e.g., failure to disclose facts required to the other party) or other compelling reason. The statute further says that the party seeking retroactive modification must act promptly once the disability is removed or the misrepresentation discovered.
In the McConnell decision, the Superior Court applied several different approaches. The arrears that accrued before McConnell was incarcerated were not remitted, even though it seems clear that he has no present ability to pay them. And even though the Court expressly finds that Father showed no compelling reason for his failure to seek the termination when first incarcerated, it remitted the arrears anyway. The premise for this decision appears to be the fact that the rule allowing termination was issued by the Supreme Court in May, 2006. How the Court had authority to vacate arrearages that accrued before the Supreme Court rule was changed is a question still lingering in this writer’s mind.
The appellate court also emphasizes a part of the 2006 rule that states that these orders are without prejudice. What does that mean in the real world? Can they later be reinstated and, if so, on what basis? All of this remains to be seen. In the meantime, if you find yourself encountering a petition of the kind Ms. Plunkard did, we would probably recommend that you promptly convert all existing arrearages to a judgment recorded with the Prothonotary.