Mark Ashton

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Time flies!  In February of this year, a breaking story emerged about a senior White House staffer who was struggling with a security clearance.  The staff person was Rob Porter and his problem was that he had been accused of the physical abuse of his former wife, Jennifer Willoughby.  Willoughby appeared in an interview with CNN’s Anderson Cooper.  On February 23, we wrote that every American with a teenage child should have their child watch Willoughby tell her story in a way that was both elegant and chilling.

On August 8, I listened to National Public Radio’s Terry Gross as she interviewed Jennifer Fox.  Jennifer Fox is a filmmaker of some note and she has just issued a semi-autobiographical movie documenting her own sexual abuse by a coach when she was thirteen years old.  The movie called The Tale, is distributed through HBO.  I cannot say that I have seen the movie, which even Ms. Fox notes it to be an amalgamation of her personal history with fiction.  But the interview with Terry Gross on Fresh Air is Fox talking about the experience of being seduced and having a sexual relationship with a prominent adult male before the onset of puberty.  This all transpired while her doting parents took what seemed justifiable pride in their investment in a private athletic coach to advance their daughter’s athletic skills.

This story is not unique.  As we are learning from the US Olympic Committee and more than a handful of college campuses, this kind of sexual grooming by a person “in authority” goes on all of the time.  What is so important about Jennifer Fox’s interview is that she has the objectivity to evaluate what happened in 1973 from all sides.  She considers what her parents might have seen but missed.  She discusses what she thinks motivated a forty-year-old man to want a thirteen-year-old girl and that discussion is one not infected with rancor.  It is as if she is describing an auto accident unfolding before her eyes.  Most importantly, she probes deeply into how she fell prey to this relationship and negotiated her way out of it.  You can tell from the interview that she has reviewed her teenage years with a jeweler’s eye and the result is something all of us should hear.  Almost all teenagers feel powerless and quest for approval and recognition. That creates vulnerability.  Adults in western societies tend to be youth obsessed.  If you doubt that proposition, I commend you to look at the career of Brook Shields who played a twelve-year-old child prostitute in her 1978 major film debut or Jodi Foster who was 14 in 1976 when she played the same kind of role.  Filmmaker Fox was in high school when those films were issued and she echoes a 2007 Mayo Clinic study, which observes that victims of childhood sexual abuse are often prone to inflict their trauma on the generation that follows them.

As with Jennifer Willoughby, Jennifer Fox has a story to tell that is highly instructive.  It is all the more valuable because there is little if any time devoted to blame or retribution.  I commend the interview because it is not fictional.  I suggest that while it covers a sensitive subject, it does so in a real and unemotional way.  If you are the parent of a child, you have already tried to teach your child to be wary of “known risks.”  But we don’t like to consider sexual abuse a known risk.  However, if you think that risk is remote, consider the fact that Larry Nassar practiced medicine for just over twenty-five years.  At last count, two hundred and sixty-five women profess that the team doctor for USA Gymnastics abused them.  How can that be?  Listen to Terry Gross ask Jennifer Fox how and teach your children well.

Every year, both in April and in October, divorce lawyers face a dilemma.  While April is the official tax deadline, just about everyone knows that “complex” returns are almost never complete when spring rolls around and many filers defer to October.  But, when couples split they often ask for the first time whether they should be filing jointly with their spouse.  This often presents difficult questions for the lawyers because we are not accountants and we are latecomers to the financial history of the marriage.  The easy answer is to say “Never!” in response to the inquiry, but that usually means the marital estate will have additional tax burdens.  It also is often a financial shot across the bow of the primary breadwinner, causing aggravation that can set a decidedly negative tone to the negotiation process.

Inevitably, once the discussion about joint versus separate returns gets underway, one of the parties introduces another term, “innocent spouse.”  For many years, if one spouse was seriously hedging in reporting income or by deducting improper expenses, the spouse who did not produce the income or determine the expenses could claim that they should not be held liable for the taxes, interest and penalties.  This was because he or she did not know and could not reasonably have known about the tax evasion.  It is an area where laypeople seem to think they are expert when they most certainly are not.

On Saturday, the Wall Street Journal reported on the story of Rick Jacobsen.  Rick filed jointly with his wife.  In 2012, the IRS found that Mrs. Jacobsen had embezzled about $500,000.00 from a non-profit where she did accounting.  Most people don’t realize this, but if you steal money, the government classifies it as income and you owe taxes on it.  So the IRS sent the joint filing Jacobsen’s an “assessment” for $100,000.00 in income tax due but unpaid.  Jacobsen contested the assessment contending that he did not know about the “income” and should not be assessed for something his wife did without his knowledge.  Last month the U.S. Tax Court agreed.

How come the IRS did not just get the money from Mrs. J?  You know.  She was in prison and the money had disappeared.  So, Mr. Jacobsen filed his own Form 8857 and claimed he knew nothing about the income or the tax associated with it.  He was underway when a new wrinkle emerged. His now “ex” told the Service he did know about the money taken.  Innocent spouses are not innocent if they either knew about or “profited” from the wrongdoing spouse’s conduct.  Thus, if you are reporting $4,000.00 a month in income and you are making mortgage and car payments of $5,000.00 a month, the term “innocent” may not fit comfortably around your financial neck.  The IRS denied Herr Jacobsen relief and he appealed to the Tax Court, which heard his case in 2017.  By the time the case was heard the tax due had swollen to $150,000.00 with penalties and interest.  His happy news is that the Court decided for him on almost all of the unreported income.

How did he prevail against the government?  First, he showed that he was financially unsophisticated.  His wife was an accountant.  He had an associate’s degree and worked in a cheese factory.  Second, and most important, he could show that the money embezzled did not inure to his benefit nor was it apparent from his wife’s lifestyle.  The couple did gamble a lot, reporting $160,000.00+ in gaming income and corresponding losses in one year. The couple filed electronically and husband said his only involvement in tax preparation was providing his W-2 wage statement to his wife.  Not only did their lifestyle not improve, at one point their utilities were suspended for non-payment.  The Tax Court accepted his testimony that his gaming activity was quite modest and involved only slots.  One can picture the IRS attorney wincing during that testimony.  The Court also did not credit wife’s testimony that her husband knew because it was not supported by any evidence.

Other intangibles are credited with his win as well.  He is a disabled veteran who is no longer married to the offending taxpayer and aside from the issues associated with his joint filing, all other returns he filed showed income properly reported and taxes properly paid.

The Opinion reported as T.C. 2018-115, is worthy of review as the presiding judge marches through the statutory facts and case law to reach her conclusion.  She found that husband was “out” for most of the tax liability arising from 2010, but had to pay tax on a small piece of unreported income in 2011 because he filed a joint return, even after his wife was charged with embezzlement. Note also that the case is decided under precedent from the Seventh Circuit Court of Appeals. Other Circuits may employ other standards or analysis.

Also important to know is the statistical trend.  In 2013 there were roughly 35,000 innocent spouse cases presented for disposition.  Relief was denied in just over 10,000 of those cases and granted in some form or the other in 25,000.  In 2017 the number of requests had fallen to 25,000 and in that year the denial rate soared so that the chance of denial was equal to that of getting relief.  As Sgt. Esterhaus said best, “Let’s be careful out there.” And, beware that the tale of an ill-advised joint return may come with a tail of never ending tax obligations.

A couple weeks ago this writer was asked to sit on a panel discussing the future of family law almost forty years after the no-fault and equitable distribution schemes were adopted and the federal government began promoting guideline based child support. One of the concerns I expressed to the Family Law Section of the state bar association was that support cases were taking too long to decide and costing too much to manage by conventional trial. At that time, the immediate poster child for my argument was Hanrahan v. Bakker, a high-income case that took years to resolve. During the interim, husband’s income boomeranged from $1 million to $15 million per annum.

Well, a new poster child emerged last week with some very ugly facts. Morgan v. Morgan is a decade long odyssey that launched in neighboring Maryland and then ambled into southwestern Pennsylvania. After almost 20 years of marriage, the parties formed an agreement in 2003 by which husband committed to pay $60,000 a year in alimony until 2007 at which point the alimony would be subject to modification. His separation income was reported as $144,000. As the modification date approached husband filed the decree and a petition to modify in Franklin County and asked that the alimony be cut to $1,000. Former wife responded with a petition to increase. The Pennsylvania Court heard the case and granted the reduction to $1,000. In late 2007. Wife appealed and secured a remand that insisted on a record showing a change in circumstances and an analysis of the alimony factors (curiously) under the Pennsylvania alimony statute. Recall, this is a Maryland divorce.

The Trial Court re-opened the record and held a hearing based on the remand, again deciding in December 2011 that $1,000 a month was the number warranted on the facts. That decision was also appealed, but while the appeal was pending former wife filed requests for relief in the appellate court based on assertions that her former husband had submitted false tax returns and other income data at the 2011 remand hearing. The Superior Court denied that request and affirmed the second trial court ruling.

Wife then filed a new modification petition in 2012 alleging the fraud that she had brought to the appellate court’s attention on appeal. At that hearing husband stipulated that in 2007, when he sought modification his income was $415,000 and in the ensuring years, it had varied from a low of $340,000 to a high in 2015 of $663,000. The trial court found his misrepresentation of income “despicable” but appears to have decided that the matter was res judicata and not subject to adjustment on the 2012 petition. That ruling came in 2016. Wife appealed a third time, which appears to have been the charm based on what we saw published on July 20 in a published panel decision written by Judge Dubow.

Two issues loom large here. The first and obvious is the modification. The second was the request of wife for attorney’s fees. The husband stipulated to the hourly rate of wife’s counsel and appears to have not contested the amounts. But the trial court awarded only 75% of the amount sought and excluded any services rendered before the fraudulent evidence was brought to the appeals court’s attention.

On the first issue the Dubow opinion states unequivocally that a request to modify alimony is an appeal to the equitable powers of the court and that a party who presents false testimony and corresponding false documentation is not entitled to any form of relief. Accordingly, it dismissed husband’s petition to modify (circa 2007) ab initio.  On the counsel fee subject, the court noted that while courts have jurisdiction to decide the reasonableness of fees where they are contested, here they were not. Moreover, as in Krebs v. Krebs, this litigation was initiated based upon false information and merited an award under 42 Pa.C.S. 2503. The Superior Court remanded the case to re-institute the $5,000 monthly award and to modify the counsel fee award to 100% of the amounts stipulated.

Wow. One cannot challenge the justice that appears to be done here. It is every lawyer’s bad dream. False testimony that is believed in the first instance and affirmed by the trial court even after it has been revealed on remand. Worse yet, the appellant appears to catch the lie and try to get the appellate court to stop the train only to see the application to correct or re-open the record denied and the 2007 ruling affirmed. So justice was done and in a concurring statement, two judges observe that the case merits consideration for criminal and disciplinary proceedings. Did we mention that Mr. Morgan is a lawyer?

However, the opinion opens doors just as it seems to be closing them. First this is a modification of a “foreign” (i.e., Maryland) alimony decree. As a matter of law, should not that have been decided employing Maryland alimony law? We can all agree that Maryland is not a state where false evidence is admitted and endorsed but the Superior Court’s first remand demands change in circumstances and review of the Pennsylvania alimony factors. Second, and related, what became of wife’s petition to increase? Husband’s income doubled and tripled from 2007 to 2015. Certainly, that creates an argument for an increase under Maryland law regarding modifications. The remand order says re-instate the $5,000 award but does not address the 2012 petition to increase.

Finally, there is the issue of finality. This may have been where the trial judge was looking when he acknowledge in 2011 that husband’s contact was despicable and the income grossly underrepresented, but he stuck to his $1,000 ruling. Horrible. Wrong. But suppose wife discovered the fraud five years after the alimony terminated. Is there a statute or equitable limitation period or can these claims be brought whenever fraud is discovered and/or asserted. No one likes the idea that the wrongdoer escapes unscathed. Suppose the defendant’s lawyer in a personal injury case sees the plaintiff, playing tennis 3 months after plaintiff secured a million dollar verdict premised upon his testimony of irreversible paraplegia. Can the defendant ask for a re-trial? Would it make a difference if the plaintiff were a regular on the court in the months preceding the trial? Do victims of family law fraud have more enduring claims than victims of civil fraud? Or, more succinctly, is final ever final where fraud is involved?

This essay started on a different topic. So I should circle back and close out that point. This is an eleven year alimony modification proceeding. In Hanrahan v. Bakker, the modification petition for child support was filed in December 2013. The Supreme Court ruled in June 2018 with a remand to the trial court to create a record of expenses related to incomes in 2012. That record will need to encompass at least six years of income and expenses. Folks, unlike asset distribution, these support and alimony cases involves the funds people live on every day. We need to explore more efficient means of getting to a result in an age when income is less regular and more spasmodic.

Congress has been crowing about tax simplification for years. They had a one-page income tax return in 1913 when the first modern return was published by the IRS.  But even then, a one-page return was a written “sleight of hand” as the first line stated Income and the second said only “Deductions” before calling the result “Net Income”.  The new form published on June 29, 2018 by the IRS does purport to be a post card, but as there are still many thousands of pages of tax law and many more thousands of IRS regulations, don’t get too excited just yet.

The new form is worth taking a look at because last year’s tax reform completely altered the landscape of the personal return we have come to know and loathe.  There is simplicity: Your 2017 return took 43 lines before you reached the magic box “Taxable Income”.  The new form gets you there in 10 lines.  How does that come about?  By moving most of the tax return to a supplemental document called Statement 1.  Statement 1 appears to capture the other 33 lines of the old Form 1040 and Schedule “A” (the itemized deductions) as well.  You will still be able to itemize but most people are not going to profit from that experience because a lot of itemized deductions – e.g., mortgage interest, state and local taxes, miscellaneous deductions and medical expense deductions are either phased out or extremely limited.

Family lawyers do these calculations every day, and while we wait for final word and temporary regulations to be published, what we are doing is taking “Gross income” and subtracting $12,000, 18,000 or $24,000 to arrive at taxable income.  Those amounts vary based on whether you are single/married/separate ($12,000), head of household ($18,000) or married/joint ($24,000).  The tax tables are also new and different, and, as some political groups are advertising, they may mean a tax increase for a fair proportion of “middle Americans”.

The biggest changes:

No more dependency exemptions.  If you have four minor children and took the standard deduction in 2017, you had $36,800 in income before the US started to tax you.  Today, that tax starts to bite at $24,000.  Dependency exemptions exist to determine your tax status (e.g., head of household) but they have no arithmetic meaning (in 2017, you deducted $4,050 for each dependent).

State and local income taxes are now combined with real estate taxes and the deduction is capped at $10,000. This is the change that has our neighbors in New York and New Jersey screaming because they pay significant income and real estate taxes. But, even in low tax Pennsylvania, a person with a $1,000,000 home in suburban Philadelphia commonly pays $16,000 in real estate taxes. That person also typically makes $250,000 a year in income and pays $10,000 in state and local taxes. In 2017 he/she deducted both items and reduced taxable income by $26,000 + any interest payments on the mortgage.  In 2018 the mortgage interest deduction is still there, but $16,000 in “tax” deductions (income and real estate tax deductions) disappeared. Result: $4,000 increase in amount due to the IRS.

Alimony. Make your deal and have it in writing before December 31, 2018 because those deals made in 2019 and beyond do not allow alimony to be deducted. Nor is the payment taxable to the recipient.

Miscellaneous deductions included investment fees and sums paid to attorneys to secure an alimony award; gone.

Casualty and theft losses:  If uninsured, they used to be partially deductible.  Not any more, unless the President declares that your casualty occurred in a disaster area he designates.

The jury appears to still be out on HELOC loans or mortgage interest generally. The conservative advice is that your HELOC needs to be exclusively for improvements to your home for it to be deductible. The mortgage interest on new loans is now capped at $750,000 meaning that if you have a million dollar mortgage you formed after December 15, 2017, one quarter of your interest payment cannot be deducted.

So prepare yourself. Tax reform was sold as tax savings. Some will benefit and some will see their federal taxes on the rise.

As June and the front half of the year grind to a close, it is the perfect time to do a couple things which could save you a LOT of legal fees in the next 12 months.  Perhaps not, but it is worth the effort and is an effective piece of evidence in court even if you fail.

  1. Download the school calendar for 2018-2019. They are done now.
  2. On a blank calendar record the school holidays and “breaks”.
  3. On the same calendar put in the custody schedule now in effect including holidays.

While you are doing that, note when the conflicts arise.  School breaks and holidays can wreak havoc with otherwise sensible custody schedules.  Where you see havoc, think about if weekend switches or other alternatives can lessen the pain and then send over those solutions to the other parent.

I would not recommend the second step be merged with the first.  But, once you launch the calendar dispute missive, it is time to start a discussion with your kids about the activities coming up.  The available menu of kid activities today is pretty much limitless.  In addition to what they want to do (everything), we have the matter of what parents think they should be doing.  This is an especial set of problems where fathers intersect with sports.  Dads seem to assume that their offspring just naturally want to play the same sports they did. That works for a while as kids see this as a great way to connect with a parent. But kids have a tough time telling a parent that their love of baseball or curling has subsided and that they would like to try golf or less competitive things like rock climbing. Summer affords vacation and other times when a parent can have a lengthy heart to heart talk with a child about what he/she wants to do or be. The key then is to help the child communicate any change of heart to the parent who assumes that he will play baseball until the first pro contract is signed.  Not easy, especially when a child senses that he or she will disappoint a parent.  Still, much easier to address now rather than after the sign ups have been completed, Dad buys the new Marucci bat for $300 and has signed up as assistant coach.

Yes, July is all about fireworks.  But, perhaps best to have them now rather than a month from now when most of the fall activities start in full gear.

On June 19, 2018, the Pennsylvania Supreme Court, in an Opinion that could be described as unanimous, ruled that the trial court was correct when it decided that it could deviate from presumptive minimum guidelines in a high-end child support case. The case has been floating about for quite some time. We wrote about the Superior Court decision back on December 7, 2016 and we provided the incomes the Delaware County Court had to look at:

Mom Dad
2009 184,000 4,000,000
2010 139,000 1,100,000
2011 145,000 2,300,000
2012 105,000 15,500,000

The case arises from a property settlement agreement which stated that the parties would exchange tax returns and calculate child support annually based on respective net income “and Pennsylvania guidelines, provided,…either party may apply to the court to adjust child support…based on relevant factors.” Those last few words may have made a world of difference because if the sentence ended without reference to “relevant factors”, the obligor may have been stuck with the presumptive minimum contained in the guidelines. Recall that the right to support as a matter of contract in a divorce setting may yield a far different result than one decided in support court.

One cannot fault the majority opinion of Justice Baer, which is itself, lauded by the concurring opinion of Justice Wecht. The line of reasoning is fairly clear. Child support guidelines are premised upon economic studies of child needs. However, as income climbs higher and higher, needs become less easily calculated. When it adopted “guidelines” for families netting more than $30,000 a month, the Court merely extrapolated and largely speculated about those needs. So, even though there is a guideline amount and that guideline amount in Hanrahan, produced a support order in the range of $60,000 a month, the parties should have the right to make a record about the specific needs of such families and dip into the evidentiary well known as “lifestyle.”

What concerns this writer is, just what is a trial court to do with this “lifestyle” question and just how far does the evidence go? Needless to say, the law seems quite clear that if I make $7,500 a month and my ex brings down $2,500, my “lifestyle” testimony is not going to get very far. I have to fit my lifestyle around the guidelines, and unless my kids have some very unusual needs, their “lifestyle” is not going to get any more consideration than mine or that of the prodigal mother.

But once the income balloon ascends above 30,000 feet, the door of Melzer v. Witsberger appears to spring open despite the language of Mascaro v. Mascaro. This means inquiries into “lifestyle” and that is a pit, which has no bottom. The facts in Hanrahan illustrate the point. Look at Mr. Hanrahan’s income. A million or two a year invites travel on timeshare jets or acquisition of a reasonably fancy Cessna. Get to four million in income and now a Learjet 35 falls into play. As I reach the million a month club, I have arrived in Gulfstream territory although my plane will probably be an older model and I may not be able to lug around more than seven friends and family.

Are judges supposed to hear this? Moreover, what wisdom can their life experience impart when the pinnacle of their lifestyle is an upgrade to first class on a scheduled commercial airline? At what level of income do we abandon commercial aviation or propeller driven transportation in favor of jet aircraft? In addition, what do we do in instances where the income is a one off; e.g., a lottery win or sale of a business, or the magnificent income is not sustained. Once children have gone “private”, can we ask them to downgrade back to commercial aviation?

I have participated in these trials and suffice to say, after a few hours they become tedious. The obligors love to wax on about how frugal they can be and “in touch” with their humble beginnings, whether real or imagined. Obligees remember seeing Parsifal from the box seats at the Bayreuth Festspielhaus and knocking back glasses of Krug Clos du Mesnil at intermission with the Obligor before the champagne and the marriage soured. The judge has to listen to how much the fourteen year old adores Wagner and the “Ring Cycle” while the judge wonders whether the “ring cycle” is a setting on the Whirlpool in his laundry room.

Reason tells us that $2,000 a day is a lot of child support. The Supreme Court was right to say that in settings such as this, expenses do matter. But, in communications I have had with lawyers who lived through the days of Melzer, there is fear that unless someone limits the “needs” and “expense” testimony, we will have courts hearing days of testimony. Taxpayers in a setting will underwrite the judicial time where this obligor’s 2012 daily income rivaled the annual household income of the mean Pennsylvania household. That is not good for anyone, except perhaps the lawyers asking whether little Rachel eschews cotton as she has grown used to cashmere.

Hanrahan v. Bakker 19 MAP 2017   [J-82-2017]   6/19/2018

The Hollywood gossip this week revolves around an Order issued in California in the custody dispute between actors Brad Pitt and Angelina Jolie. That Order outlined a summer custody schedule for the six children while maintaining primary custody with Jolie. But the Court issued stern warning to the Mother stating that: “If the minor children remain closed down to their Father….it may result in a reduction of the time they spend with {Mother} and may result in the Court ordering primary physical custody to {Father}.

The children range in age from 9-16. These can be tempestuous times for even the best of intact families as it is when children really develop their own expressed personalities. In a divorce setting it is also common for one or more to ally with one parent and reject the other as unworthy of any respect, love or attention.

Sometimes that enmity is earned. Growing children can be quick to “judge” a parent’s conduct and expose any inconsistency.  Not all parents are exemplary characters and people are not at their best when a marriage is dissolving. But then there are instances where dislike for another parent is given a little nudge if not a firm push by the “favored” parent of the day.  It often begins at separation with the gentle suggestion that “Mommy left us.” or “Daddy likes another family better.”

Parental Alienation Syndrome is a term coined by a New York psychiatrist, Richard Gardener in the early 1980’s.  He termed it a “disorder”  manifested by a campaign to denigrate the other parent. The action can be deliberate or unconscious.  It can range from subtle hints about the other parent’s inadequacies or rise to suggestions to a child that his/her parent may have physically abused the child.

The psychological community has never embraced this condition as a disorder although that subject is much debated.  In its mildest form, the child is resistant to talk on the phone or visit with the bad parent. The child will often freely opine on the bad parent’s character or conduct.  A tip off that the views are not independently formed by the child is that the language expressed by the affected child is not typical for someone that age  (“Mommy drinks too much alcohol”) or contains conclusions that young children cannot evaluate (“Daddy passed out” in contrast to “went to sleep”).

A common method of teasing out this kind of alienation is to interview the child about what he or she likes and dislikes about the parents.  An alienated child is often hard pressed to describe any meritorious conduct on the part of the parent from whom he is alienated.  Or, the child will dismiss it with a platitude (“I know he loves me” without more). An alienating parent often is described by the same child as faultless.

Although not an accepted disorder, anyone who has been in the presence of a child who is fully alienated from a parent knows how challenging those interactions can be. Typically, the child is sullen, argumentative or silent. They will recoil from physical contact, even when it is intended to express warmth and kindness. These children often will not permit anyone to try to persuade them that all parents have merits and deficits. One parent is good, the other is not.

The remedies for this condition are limited and extreme.  Most courts will order the child into therapy to make certain that the enmity is not fact based, but once that hurdle is passed the therapist has a daunting task.  The child does not want to view the alienated parent as having merit.  And, the therapist has but 45 minutes to work on correcting the matter while the parent promoting alienation has the rest of the week to reinforce negative thoughts.  Note again that some parents don’t even appreciate the toxicity of their conduct.  When confronted with the problems associated with using phrases like “Daddy left us” a mother may respond that the phrase is not one of judgment, but of fact.  We live in an age when people think it is appropriate to be “brutally honest” even though children don’t have coping mechanisms to address the brutality.  “My father is a bad man so the judge sent him to prison.”  “My mother likes to sleep around.”  A 16 year old child is old enough to understand infidelity.  Nine year olds would assume that mom must have a job that requires overnight travel.

In the Jolie-Pitt matter, the signals are clear. This judge is quite concerned that mother is over regulating conduct with father and insisting on unrestricted phone access. That, too, is easier said than done as parents can often send very strong ques that a call needs to end or be avoided.  In this case, the Court is also signaling that unless these children are able to form a more positive relationship with Mr. Pitt, the judge may go so far as to award primary custody of the children to their father. This is the nuclear option and Courts are chary to employ it because there is always concern that (a) the alienated parent is now in exclusive control should there be something bad going on, and, (b) the child might run away permanently.

There is no easy solution and this case is further complicated by the fact that the Children will be with one parent in California and another in England.  Physical distance makes it all the more difficult to break down or at least slowly dismantle studied antipathy toward a parent.

The late Supreme Court Justice Potter Stewart is credited with saying that while obscenity could not be defined: “I know it when I see it.”  This is equally true for parental alienation. The scientific and medical communities have not accepted it because, unlike depression or bipolar disorder, it escapes definition.  But, almost any judicial person deciding custody cases will confess that they know it exists because they have heard it from the lips of parents and children.  When people separate, they want their children to like them “better”.   It is only natural.  But it is far less clear whether a child’s dislike of a parent is fact based or the product of undue influence.

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 recent case published by the Superior Court gives us some insight into one issue which has thus far evaded appellate review and affirms in principle that alimony remains a secondary remedy and one which is awarded based upon need.

Core facts are:

Husband: 61

Wife: 56

Both employed in health care industry.

Husband’s net: $16,000

Wife’s net: $10,400

(60/40)

25 year marriage

Wife received support $2,200 in support since 2012.

Court awarded 55/45 split in favor of Wife.  The gross estate is $7,000,000+ pensions.

Wife asserted that Husband had dissipated $4.4 million of property on an extramarital relationship.  She appealed claiming the award did not give sufficient consideration to that fact.  The Trial Court opinion acknowledged expenditures outside the purposes of the marriage but concluded, “It is not the role of the Court to recoup expenditures made during the marriage by one party that the other party does not know about or does not agree with or to make a party whole again.”  It then added that in effecting an equitable distribution “considerable consideration” to contributions to creation of and dissipation of assets.

It appears that the Trial Court made its distribution with a blanket statement that it had “reviewed all the factors.”  The Superior Court concludes that the Trial Court carefully examined the distribution factors and that Wife’s lack of specificity on this issue was dismissed as waived.

On the $4.4 million dissipation issue, Wife presented a list of purchases and expenditures which she considered a dissipation as the month was spent for the benefit of an adulterous relationship.  As noted, the Court found that its role is not recoupment of dissipated assets but distribution of what remained.  It was sufficient that the Trial Court “considered” monies used by husband during the course of the marriage.  Hopefully this meant the monies “misused” during the marriage but that is not the word employed.

Another issue was that of whether alimony was appropriate.  The Trial Court had denied it stating that the expenses presented were not reasonable and, even if credited, did not exceed Wife’s income supplemented by the equitable distribution award.  The Superior Court, quoting Teodorski v. Teodorski noted that, “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage as well as the Payor’s ability to pay.  Moreover, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of appropriate employable skill.”

The alimony language is interesting to see in a day when alimony appears to be more guideline than needs driven.  The language about the merit of preparing and presenting a dissipation case must be disheartening to many.  It appears that while there was a lot of “evidence” presented about dissipation, the Trial Court skated by stating that it heard and considered that evidence but had no responsibility to keep score or formally evaluate the dissipation claim in an economic sense.  Those who come to attorneys with stacks of evidence of funds spent on non-marital relationships will need to be warned that such a presentation will be certain in cost but not in outcome.  We don’t know how much of the $4.4 million in dissipation claims were solidly established.  What we do know is that in a 25 year marriage where the parties depart with husband having a 3:2 advantage in net income, the equitable distribution advantage to wife was roughly $350,000.