Aaron Weems

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My colleague, Mark Ashton, was recently quoted in Mr. Ken Belson’s New York Times article addressing a Pittsburgh custody case grappling with whether a child should play football after having had three concussions before his 16th birthday. As Mark points out in the article, custody officers are unwilling to touch an issue such as contact sport participation because no one wants to be the one who provides the opportunity for a child to be hurt. I think another reason why custody officers are unwilling to deal with such an issue is a little more esoteric: how does one gauge whether one sport is better for a child than another?

Mark also wrote a blog post last July raising the issue of football as the new battleground for legal custody issues. Parents seem to be increasingly concerned about the injury potential of concussions suffered in football and the “time value” of football compared to other sports. Having played over ten years of football, I disagree with using the time value analysis to consider the benefits of football. Football is notoriously known as only being “played” for a sliver of time relative to the game clock. The “conditioning affect” of football cannot be measured that way and it leaves out the intangible aspects the sport develops such as leadership, perseverance, physical and mental discipline, and playing a team sport which relies on each individual to perform their role to the best of their ability every single play. It is an amazing sport. It is an evolving sport. As this Pittsburgh case shows, even for those who love the sport, it is not for everyone.

Which brings us back to the Times article and what some might consider a “war” on football. The concerns and raised awareness about concussions in children is no more an attack on the sport than seat belts are an attack on driving. This issue is fundamentally a health issue, with concussions serving as the context, but which could easily replaced by concerns about a torn ACL or broken leg. Olympic downhill skier Lindsey Vonn has an injury history (including a concussion) that would make an NFL linebacker cringe, but I suspect if skiing replaced football as the activity in question no one would be paying attention to this case.

The quantitative difficulty is that a concussion does not show up the same way a broken bone or torn ligament does on an MRI. If a doctor clears a child to play any sport or activity after they clear a concussion protocol, then seemingly the child is fit to play. There is no evidence to the contrary, nor is there evidence to predict how the next concussion will occur, if at all. Left out of the article are details about the second and third concussions. I would be curious to know whether they were from direct hits or glancing blows. This child’s first concussion was from being hit in the head with an aluminum baseball bat. I wonder whether the second and third were routine plays which might not have otherwise injured him. Concussions affect everyone differently and they can be progressive such that it takes less of an impact to be concussed than it did the previous time(s).

This situation becomes a legal custody issue because it has a direct consequence to the health of the child. The mother’s argument is that football represents a “status quo,” but the father’s counsel argued that the status quo changed once the second and third concussion occurred from football. A temporary ban on the child paying football was overturned and he played his junior year without any injury. The father is now prepared to go to trial for a final order on the issue.

From a legal standpoint, this situation highlights the difficulty of developing bright-line rules for some legal custody issues and why there is little precedential case law on some of these unique issues. This situation is so fact specific that permitting (or barring) participation in football in this case will likely be irrelevant to another case. Nevertheless, it will be interesting to see what the trial court decides and their rationale behind their decision. Though perhaps not binding on other cases, it can be instructive as to whether the court considers the sport or the injury as the critical factor.

Experts and their reports can be an expensive, but necessary, element to many types of cases. This is particularly true in divorce cases, whether they are personal or business divorces. In all cases, it is incumbent on the attorney, client, and expert to all have the same understanding of the scope of the work and expectations on expense. Sometimes, it is not possible to absolutely predict how much litigation will cost or account for every variable or obstacle to a project. Consequently, the costs of a case or preparation of an expert report can exceed the expectations of a client.

A recent Superior Court case dealing with an insurance report highlights the problem created by different understandings and expectations between an attorney and the expert he hired on behalf of his clients. More pointedly, it reaffirms the concept that the engagement letter between an attorney and expert (or client and expert) is an enforceable contract and that an oral estimate of costs will not serve to modify or supersede it.

In the case of MCMP v. Gelman, attorney Bruce Gelman hired Marsico Construction Services and their principal, Louis S. Marsico, to provide expert testimony and a report for an insurance coverage dispute Gelman’s clients had with their homeowner’s insurance carrier.  Marsico provided the report, which was submitted by Gelman to opposing counsel and the insurance company. However, when Marsico provided his invoice to Gelman, it had costs totaling about $30,000.00 – considerably above Gelman’s expectation based on Marsico’s rough estimate of the cost being between $7,500.00 to $10,000.00. Gelman refused to pay the cost and Marsico demanded that he not use the report in the insurance coverage dispute or at trial. Though not noted in the case, the report is considered hearsay unless otherwise stipulated to and if Marsico refused to testify, Gelman would have been unable to move the report into evidence. Once barred from using the report further, Gelman would later claim that by not having a report, the case settled for less than it could have.

Gelman’s appeal tried to assert that the oral estimate provided by Marsico constituted an enforceable, orally accepted express contract term between Gelman and Marsico’s company. The lynchpin of the case, however, is the engagement letter: Gelman agreed to pay Marsico an hourly rate and Marsico was awarded $20,000.00 after a two-day bench trial for breach of contract.

On appeal, the Superior Court rejected Gelman’s arguments and found that the hourly rate engagement was valid and that the estimate provided by Marsico was “off the cuff” and not an express contract term. That point was particularly true since a written engagement letter with specific terms for the firm’s consulting services followed the oral estimate.

The takeaway from the case applies to clients and attorneys: understand the terms of your engagement letter for professional services. Review them and ask questions about any term you do not understand. Addressing a misunderstanding on the precipice of trial leaves you with few options and may severely prejudice the client (another issue altogether). As seen in this case, the courts will not step in to fix your error or accept a modification to the contract that does not strictly conform the Pennsylvania law on express and oral contracts. You do not want to find yourself paying for a report that only collect dusts in the file.

While Alex Jones was the most recent high-profile example of a controversial public persona creating very personal and private problems, he is certainly not alone. Similar in theme, but not in execution is the case of the Michael and Heather Martin who are described as “YouTube stars” and post to a channel with over 760,000 subscribers.

Their shtick is to torment their five children (three together; two are Michael’s kids from another relationship) by, “verbally [berating them], frequently to the point of tears, while performing stunts like appearing to destroy an Xbox video game system and accusing the children of making messes they had not made.” However, one of the aspects of fame is that when the number of people watching you increases, so to does the likelihood that someone may not share your idea of “fun” and, instead, question whether you are actually physically and emotionally abusing your children.  Such is the situation the Martins find themselves.

Recently, the Martins lost custody of Michael’s oldest two children after their biological mother petitioned in Fredrick County, Maryland for an emergency order for custody. Undoubtedly, the apparently 300 plus videos (since removed) they posted to their channel will be used in some form or fashion in a future custody case(s).

Not unlike the Alex Jones situation, the Martins refer to themselves as being “characters,” the videos are entertainment and scripted, and that the children were often in on the pranks and interested in how many hits the videos receive. Maybe the entire family fell into the wormhole of internet fame and the kids equated the validation of a popular video as the quid pro quo for being emotionally manipulated, screamed at, and exposed to violent situations.

Regardless of the motivations, it is indisputable that the videos are valuable evidence. They either depict physical and emotionally abuse by the parents, or they record a pair of amateur entertainers whose actors (their children) perform under unsafe working conditions and seemingly without the benefit of knowing what is real and what is “part of the show.”

The parents admit in their apology video to being seduced by the fame and upping the shock value for the sake of more attention and, presumably, financial benefit. They certainly imply that the success of the stunts lead to significant financial gain and their hiring of a reputable family law attorney and crisis management public relations firm certainly seems to corroborate that.

The Martins said that having “stepped away” from their “characters,” they now understand the criticism directed at them and that they made some bad decisions and let things get out of control. People lose their kids over one or two bad decisions. Imagine if someone publicly displayed hundreds of such examples.

This is the reality of today’s social media and non-traditional entertainment platforms. Essentially, anyone can produce and disseminate media on multiple platforms instead of the old system of television, radio, and movies. The line between actor or character and who you are in “real life” gets blurred. And as the Martin and Jones cases demonstrate, the more “authentic” you try to be for entertainment purposes, the more difficult it can be to separate yourself from the actions of your “character.”

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.

Child custody cases turn on the court’s determination of the child’s best interests.  As defined in Pennsylvania, this means having the judge apply evidence to Pennsylvania’s sixteen (16) custody factors and render a decision.  Evidence for a trial can come in a variety of ways and, with increasing frequency, the role of social media and public statements are among them.  Periodically, a case involving a public figure forces the courts to consider when an individual’s “public persona” or public statements are germane to the underlying family law issue.

In the case of Austin, Texas based “Infowars” radio host Alex Jones, his public persona and commentary are being relied upon by his ex-wife, Kelly Jones, to justify her pursuit of sole or joint custody of their three children.  The children have resided with Mr. Jones since the couple’s 2015 divorce.  Ms. Jones cites statements Mr. Jones has made on Infowars and a variety of associated public behavior, as well as some of the associated backlash to those comments and actions to demonstrate his unfitness as a parent. Based on published news reports, Ms. Jones claims that Mr. Jones’ home, which also serves as his broadcast studio, is inherently unsafe due to the attention his public persona draws and that the statements made by Mr. Jones demonstrate mental and emotional instability which demand the removal of the children from his care.

Mr. Jones’s counsel, in response, is arguing that his “persona” is akin to being an actor. He is playing a role that caters to a particular audience.  Consequently, you cannot hold his employment against him any more than you would an actor who portrays a particularly violent or controversial character. His lawyer makes the (dated) analogy that to use Mr. Jones on-air persona as evidence towards fitness as a parent would be like assuming Jack Nicholson’s performance as the Joker. This is a troublesome analogy, however, since no one would confuse “Batman” for a documentary about a wealthy man’s obsession with bats and the clown that hates him. There is a clear delineation between the actor and the character; reality and fiction.

Contrast that to another radio performer like Howard Stern.  Unlike Stern, there does not appear to have been any “fourth walls” broken in Mr. Jones’ radio or public performances.  Throughout Stern’s career, he frequently references the dichotomy between his on-air persona and his real life. He even produced a book and movie (“Private Parts”) showing this disconnect between his two worlds. Mr. Jones, on the other hand, does not appear to have ever revealed another side of himself besides the “Alex Jones of Infowars.” In fact, his ex-wife argues that they are one-in-the-same and argues that Mr. Jones is “not a stable person” who makes threats of physical violence towards celebrities and politicians.

Aside from trying to show an instability of the mind or lifestyle, are Mr. Jones on-air statements relevant evidence in a custody trial? As the trial heads into its third day, it appears that despite his defense on the grounds of art, they likely are. Another high profile case which used public statements to the detriment of the party was the Sherri Shepherd parentage case.  Ms. Shepherd and her ex-husband had a child by egg donation and gestational carrier. Leading up to the child’s birth, Ms. Shepherd was publically vocal in her excitement and anticipation of being a mother up until she and her ex-husband separated and eventually divorced. She lost her attempt at the trial level (a decision affirmed by the Pennsylvania Supreme Court) to invalid the gestational carrier contract and be removed as the child’s legal mother. At trial in the Montgomery County Orphan’s Court, her ex-husband presented a compelling montage of Shepherd’s public statements.

Mr. Jones’ commentary is certainly protected political speech, but whether Mr. Jones has the right to that speech is a separate issue as to whether his actions and behavior – of which his public statements are a significant part – make for a stable living environment or one which serves the children’s best interests.  Ultimately, the jury will parse out the “real” Alex Jones from his in-court demeanor, direct testimony, video and audio clips.

A standard provision in most written agreements establishes that no modification of the agreement shall occur unless the parties do so in writing (and usually notarized to avoid fraud). Recently, however, I confronted the issue as to whether or not a party may make a valid oral modification of a provision of an agreement.  In other words, was the “all modifications in writing” provision of the agreement as ironclad as it appeared?

The issue stemmed from the reimbursement of expenses related to the sale of property.  Over time, the reimbursable expenses grew and became substantial enough that the party responsible for reimbursing the other balked at the figure and tried in many ways to extricate themselves from the obligation.

It is common to include modification language in agreements to ensure that ad hoc revisions by the parties do not alter or create new obligations; or to avoid the chance that oral agreements are misunderstood or reneged upon by one or both parties. Interestingly, a commercial litigation case sheds light on the weakness of these clauses. The case of Crown Coal & Coke Company v. Powhatan Mid-Vol Sales LLC, 929 F.Supp.2d 460 (W.D.Pa. 2013) addresses whether a provision prohibiting modification of an agreement unless in writing precludes any modification whatsoever. The U.S. District Court, citing a variety of state and federal cases found that even where such a prohibition exists in the agreement, the parties may revise the agreement by parol (oral) negotiation: “[the] hand that pens a writing may not gag the mouths of the assenting parties.”

Modification of an agreement by parol negotiation, however, has the significant burden of being proven by clear, precise, and convincing evidence. This is a reflection of the general rationale behind written agreements: the need to eliminate ambiguity or confusion between the parties. Here, the Crown Coal court is articulating that in order to prove the validity of revised terms of the agreement, the party seeking enforcement must show that the terms are clear, unambiguous, and the evidence convincing enough to prove to the court that both parties intended to abide by the terms. Evidence along these lines includes the actions of the parties effectuating the terms.

This case reminds us that terms of an agreement are alterable by the parties so long as they satisfy the elements of being a binding contract. However, it is always advisable to work with a lawyer to make sure the revisions are in writing since the high burden of proving a modification by parol evidence – while not impossible – is difficult.

Any term of an agreement worth adhering to is best established in writing and amended to the Agreement. In the case of a Marital Settlement Agreement, it is also advisable to take the additional step to have the amendment incorporated into the Divorce Decree.  Once a MSA is entered as an Order of Court through a Divorce Decree, it really cannot be modified except by another Order of Court.  Consequently, if a revision to the terms has been made and both parties expect the other to adhere to the terms (or want the ability to compel enforcement), the best practice is to have a written amendment signed and filed for incorporation with the Divorce Decree.  This additional step might be the difference between easily enforcing the new term(s) or having to take a circuitous route to enforcement. MSA becomes a court order once incorporated into the decree and court orders can only be modified by the court.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

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.

 

 

Recently, a case came before the Superior Court addressing the question as to whether a party has the right to charge interest on unpaid portions of an equitable distribution award. In Raines v. Raines, 2016 PA 227 (Superior Court), the basic facts are that husband and wife divorced and the recommendation of the master requiring husband to refinance a property and pay out wife was entered as an Order of Court. Under the terms of the order, if husband had not paid the cash by a certain date, wife was entitled to 6% interest per year on the unpaid balance.

Suffice to say, husband didn’t pay his obligation. He could not refinance the property and was forced to try to sell it in order to pay out wife. Consequently, wife pursued contempt and to have the debt considered a judgment. She was not successful since the court found that husband was not in willful violation of the Order and was trying to mitigate the problem by selling the house.

Eventually the house sold and at settlement, wife presented husband with a settlement distribution which provided her interest under the order, plus interest under Section 8101 of the Pennsylvania Code which relates to interest attached to monetary judgments. That law exists so that a judgment holder is not prejudiced by any appeals which might delay the ultimate satisfaction of the judgment. Here, wife was trying to attach it to the money owed and increase her recovery from husband, even though the trial court rejected her request to do so.

Husband, under protest, paid the interest so to not delay settlement and filed to have the Section 8101 interest returned.

The trial court found, the Superior Court upheld, that an equitable distribution order is not a “judgment” as contemplated by Section 8101. A judgment is a “final determination” of a case and in the context of divorces, it is the decree which is the “final determination” and the equitable distribution order is an ““ancillary issue.” The court went on to identify that the entry of judgments against equitable distribution property is permitted under 23 Pa.C.S.A. 3502(e)(1) as an enforcement remedy and to accept Wife’s argument in favor of Section 8101 would effectively nullify a portion of Section 3502. The Court, understandably, declined to invalidate Pennsylvania law on this point.

So while Section 8101 is available to family law cases, it is only after someone has successfully had the equitable distribution order entered as a judgment under Section 3502(a)(1). The order, in and of itself, is not a judgment.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

We’ve reported on the United States v. Elonis in the past. This case involved a Northampton County man who made a series of threats on his Facebook page directed at his estranged wife, his employer, and an FBI agent who came to investigate a threat he made to attack an elementary school. Elonis, in his defense, claimed that his posts were not, in fact, threats, but rap lyrics and forms of artistic expression.

He was nonetheless charged with under 18 U.S.C. 875(c) which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. He was eventually convicted at trial of four out of the five charges against him and sentenced to forty-four (44) months in jail. He conviction was upheld by through the appellate system and eventually appealed to the U.S. Supreme Court who granted cert to hear his appeal. The Supreme Court overturned his conviction, but did not address any of the First Amendment claims or other issues raised on appeal except for what they viewed as an error in the jury instruction identifying the standard the jury was to apply to the offenses. Helpfully, however, Justice Samuel Alito articulated in a concurring/dissenting opinion a road map for the Third Circuit Court of Appeals – the court where the Supreme Court was remanding the case for further consideration – on how to have Elonis conviction upheld.

The Third Circuit did just that, finding that the jury instruction amounted to harmless error and he would have been convicted under either of the discussed standards since there was indisputable evidence in the record that Elonis intended his wife and others to perceive the statements as threats.

The reason this case is relevant to family law cases is that Elonis conviction proves that social media posts will be closely scrutinized by the courts to determine whether or not they can be construed as threats. There is no special First Amendment protection attached to them and context will have a huge affect on whether or not a statement will be interpreted as art or as a threat of harm. In this case, there can be little confusion that Elonis wanted to inflict fear and anxiety on his estranged wife and others around him. His threat to attack an elementary school with the intent to die in “blaze of glory” was concerning enough to prompt a visit from the FBI – an episode that prompted Elonis to “creatively write” and post shortly thereafter a scenario where he uses a knife to quickly slit the agent’s throat as she stood on his porch.

In short, even if Elonis had no intention of carrying out these acts, the trial court and Third Circuit found that he clearly intended them to be threats and whether that determination is made by a reasonable person or if his acts were interpreted as reckless was immaterial to the fact they were made and with a desired affect. Issues of the First Amendment and free speech were never considered and, frankly, I don’t think any court will be looking to carve out violent lyrics as being a protected class of speech. For every Eminem who wins Grammys for writing vividly violent verses about his ex-wife, there will be hundreds or thousands of people who try to circumvent their PFA Orders or try to intimidate an ex-partner through social media or other means and use the facade of “art” and “lyrics” to shield themselves from prosecution or being found to have violated a protective order.

What Court wants to define the line between art and threats? Quite simply, the courts – like many of us – don’t know how to define art, but know it when we see it. Similarly, we might not be able to define an easy catch-all definition of what constitutes a threat over social media, but we can discern context and content make those determinations on a case-by-case basis to ensure both the accused and accuser are protected under the law.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

A recent criminal case addressed, in part, an issue we saw in the case of Elonis v. United States.  The Elonis case went to the U.S. Supreme Court which ultimately reversed the criminal conviction of a man based on statutory construction grounds that his Facebook postings did not offer the requisite mental intent to threaten the victim(s). The Supreme Court’s opinion did not  address any First Amendment rights, however.

The case of Commonwealth v. Lambert, involved a Protection from Abuse Order entered against Lambert, the victim’s ex-boyfriend.  Interestingly, and likely an insight into the voluminous use of social media by Lambert, was the specific PFA Order instruction that he shall refrain from posting “any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks.” In other words, he was not permitted to post anything to social media pertaining to his ex-girlfriend. It should be noted that a Protection from Abuse Order restricts a perpetrator from having direct or indirect contact with a victim. If they do have contact, they could be subject to an Indirect Criminal Contempt.  PFA Orders are civil restraining orders to protect a victim, but they have criminal repercussions: a violation – either verbally, in writing, or physically – will land someone in jail.

With that context in mind, we look at what Lambert did to violate the PFA Order. A day after the Order was entered, he posted a series of Facebook comments in which he does not name his ex-girlfriend, but that she was clearly the subject of the posts. As the Superior Court points out, Trial Courts need to consider the context of the violation and “temporal proximity” of the statements. Perhaps if Lambert had not made his posts a day after he was found to have abused his ex-girlfriend, the context and temporal proximity would have led the court to a different interpretation. The posts were not actually threatening or outwardly menacing (though the victim could certainly feel otherwise), but, as the Court considered, the posts were about the victim.  They were discovered by the ex-girlfriend when she went to his Facebook page – she testified that she regularly checks the page for her own knowledge since he is such a voracious social media user that if he was angry or having mental health issues she would have notice of them before risking an interaction with him.

The victim let her local police know about the postings; they contacted the District Attorney’s office, who then initiated the contempt action. He was subsequently found guilty of contempt. That conviction led to the appeal by Lambert as to whether his indirect criminal contempt conviction was a violation of his First Amendment rights to free speech and whether the lack of wrongful intent (i.e. the posts were not threats) should have led to acquittal.

The main issue the Superior Court considered was the First Amendment claim. The Court’s opinion on that issue can be summarized with concept that the PFA Order is contact-based not content-based.  In other words, the PFA does not restrict speech so much as it restricts who the speech is directed at.  This is an important distinctions since restrictions on content must be strictly scrutinized.  Here, however, the contact was – directly or indirectly – made to the victim through Lambert’s public (likely another factor) Facebook profile. By making statements about the victim on a public profile where she could reasonably be exposed to them, Lambert was, effectively, attempting to contact the victim.

As a consequence, his conviction was upheld. His mental intent argument – which successfully led to the overturning of the Elonis conviction – was unsuccessful, as well, since his mental intent to threaten was not at issue; merely the attempt to contact mattered – whether it was to threaten or say he was sorry is immaterial. It should also be noted that the standard of proof for Elonis was the criminal justice system’s “beyond a reasonable doubt,” whereas the standard for finding abuse occurred is the lower “preponderance of the evidence” standard, though an indirect criminal contempt carries the “beyond a reasonable doubt” standard.

The broader implication is that Facebook and social media can be and will be considered forms of communication with the victim of a PFA. Shouting into the void of social media is not without consequences and, as Lambert demonstrates, the intent is secondary to the act of communicating.