General PA Family Law News & Updates

It happens every day throughout the Commonwealth.  It is support contempt court and the crowd is large and anxious.

On Valentine’s Day, 2017 a contempt hearing was scheduled with the petitioner being the grandmother of two young children, and the respondent, her daughter.  The daughter was supposed to pay $108 in support and $30 on arrears.

As often occurs at these contempt hearings, a deal was struck and placed in writing.  The agreement was admitted contempt but no incarceration provided that all payments were made on a timely basis.  If that condition was breached, the contemnor would be incarcerated for six months.

Appellant then appealed from her own agreed order contending that the remedy she agreed to was not one that conformed to Pa.R.C.P. 1910.25-5(a)-(c).  Many lawyers would agree with this author that you can’t appeal an agreed order.  But, we would be wrong.  In an opinion published May 8, 2018 a panel of the Superior Court vacated the order because it did not conform to 23 Pa. C.S. 4345 and sent the case back for a new hearing.  Parties cannot agree to an illegal sentence. Com. v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)

Writing for the Court, Judge Shogan borrows from criminal law in stating that a suspended sentence is “illegal” Com. v. Joseph, 848 A. 2d 934, 941 (Pa. Super, 2004).  Contempt is not about future payments.  It is focused on the present ability to pay.  If the Respondent has it, incarceration is a remedy but it must be administered with a purge condition that the Court finds can be met.  The agreed order did not specify a purge amount and failed to outline a mechanism by which a determination could be made about the future ability to pay.  In other words, each time the keys to jail are brandished in contempt court, the court needs to assess what the Respondent can pay then; not at some unspecified later time.

The burdens in contempt shift more often than the tides.  The Petitioner has the burden to prove notice and noncompliance with the order.  Present inability to comply is a defense where the burden falls on the Respondent.  Barrett v. Barrett, 368 A>2d 616 (Pa. 1977).  But, if incarceration is the remedy, the Court must find beyond a reasonable doubt that the contemnor has the present ability to comply. Id., Muraco v. Pitulski, 368 A.2d 624 (Pa.S. 1977); Kramer v. Kelly, 401 A.2d 799 (Pa.S. 1979)

Thompson v. Thompson, 2018 Pa. Super. 122 (5/8/18)

In a published decision reported on March 15, 2018, the Superior Court has addressed what it takes, at least in a criminal setting, to tie a Facebook posting to a defendant charged with a serious crime.

Tyler Mangel and Matthew Craft were charged with assault in Erie County.  In the course of the prosecution, the Commonwealth filed to secure Facebook subscriber information.  That motion was granted and at trial, the prosecution filed a motion to introduce information obtained from Facebook, which it saw as probative of guilt.  The evidence consisted of screenshots and mobile device “chats.”

When the police officer testifying about the investigation was asked what clues found in the chats could be traced to Defendant Mangel’s Facebook account, the defense counsel objected. The Trial Judge then posed this question to the witness asking whether the officer, with a reasonable degree of certainty could testify that the Defendant published these electronic statements.  When the witness testified that the account was registered in the Defendant’s name, the Court sustained the objection on the basis that ownership of a social media account could not be equated with responsibility for all publications made on that account.  The Commonwealth appealed.

Defense counsel ably created “issues” for the prosecution.  The investigating officer did not secure an IP address for the account she was testifying about.  This would have provided background about the computer, network and location of the computer at the time of the post.

Mangel is not the first foray into this evidentiary minefield.  Instant messages and cell phone text communications were the subject of In the Interest of F.P. a minor, 878 A.2d 91,96 (Pa. Super. 2005).  In October 2011, we wrote about Com. v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) aff’d 39 A.3d 705(Pa. 2014).  In 2016, the Third Circuit ruled that Facebook authentication required a preponderance of evidence.  United States v. Browne, 834 F.3d 403 (3d Cir. 2016).

Judge Stevens sum up the problems of authentication as the same with all electronic media; “anybody with the right password” can become someone they are not and send messages pretending to be the account holder. The proponent of social media has the burden to corroborate the message with the alleged messenger, by either direct admission or contextual clues confirming the identity of the sender.  In support of this need for “supporting evidence” aside from mere ownership of the account, the Court referred to U.S. v. Vayner, 769 F.3d 125,131 (2nd Cir. 2014); U.S. v. Jackson 208 F.3d 633,636 (7th Cir. 2000); Griffin v. State 19 A.3d 415,423 (Md. 2011); Com. v. Purdy, 945 N.E.2d 372, 381 (Mass. 2011); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014); and, Deering v. State, 465 S.W. 3d 668, 672 (Tex 2015).

In this case, the defendant did not admit the Facebook account was his or admit to making the posts.  The fact that the name, hometown, school district and photos posted seemed to correspond to the Defendant was insufficient.  The fact that there was another Facebook account for “Tyler Mangel” in the Defendant’s hometown only added to the certainty of keeping the electronic evidence away from the jury and showed that the police were wrong in offering that there was only one person with such an account in the Defendant’s hometown.  The timing of the postings was also missing from the record.  Moreover, there was nothing distinctive about the posts, which would suggest the “signature” of Mr. Mangel, the Defendant.

This is a criminal case and one may argue that a civil case might be decided differently.  But the Rules of Evidence governing authentication do not vary from criminal to civil, meaning that electronic evidence needs to be considered more carefully than trial lawyers might otherwise want to think.

A Superior Court decision last month by Judges Lazarus, Bowes and Ott reminds divorce practitioners that there are distinctions to be drawn between the rights of intestate surviving spouses and the rights of a surviving spouse to elect “against” the will of a decedent.

We start with some old news.  When the divorce code first came into effect in 1980 the rule was that the death of a spouse had the effect of abating any divorce action which had not been concluded by a final decree.  The 2005 Amendments to the law provided that once grounds for divorce had been established, the action could proceed with the decedent’s estate substituted as a party in the action.

Thomas Scarpaci died in 2013 while a divorce action was pending.  Wife had previously filed a Protection from Abuse Claim, but had withdrawn it.  The divorce action had been pending for almost six years when Thomas died intestate.

Widow Patricia filed for letters of administration.  In 2015 she circulated documents at first indicating that the estate would be divided among the decedent’s children and filed an inheritance tax return stating this was how the estate would be divided.  But, several months later her counsel issued a revised distribution statement indicating that she would be taking her share.  This distribution schedule was also not filed. When an audit status was called, the children of the decedent asked to strike the election and deny her the right to claim an intestate share.  After briefing, the Trial Court in Allegheny County sustained both arguments.  Wife appealed.

The Superior Court first looked at the issue of forfeiture of the right to take a share of decedent’s estate under 20 Pa.C.S. 2106.  The court notes that notwithstanding the length of the divorce, grounds had not been established as consents were not filed nor had either party perfected the existence of a two-year (now one-year) separation.  Thus the statute was inapplicable.

The second ground relied upon by the trial court was that the widow’s conduct warranted denial of her right to claim because she was guilty of non-support of her husband under Section 2106(a)(1).  The Superior Court held that the burden to prove non-support was upon the heirs advancing that claim.  The Court further notes that while alive, husband never prosecuted a claim for support and that the argument that wife should have supported him notwithstanding the absence of a claim was insufficient.  The object was made orally in the context of an audit proceeding.

In this case, the court never conducted a hearing or received evidence in any other form.  Curiously, the order deciding forfeiture was reversed without any remand for hearing.  The Court did note that many required pleadings, including an explicit request to declare wife’s interest forfeited, were not filed.

2017 Pa. Super. 393 (12/13/17)   http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Reversed%20%2010335312930622742.pdf

*A NOTE REGARDING OUR BLOG OF 1/3/18: We wrote on Passarelli Trust, a reported decision holding that failure to specifically disclose all assets placed in trust was not sufficient to dismantle the trust on the basis of fraud.  Earlier this month the Court withdrew this holding and ordered the matter argued en banc.