Darcy Williams of our Chester County office recently provided an entry to our firm’s Berks County legal blog by discussing how the Court of Common Pleas dealt with a support modification which was filed less than twenty days after an agreed order went into effect.  Citing the Pennsylvania Support Code with respect to filing modifications based on changes in circumstance, the Court dismissed the petitioning mother’s claim that a mutual mistake occurred when the parties reached an agreement on the amount of support to be paid in this case.  The Court noted that the Mother’s remedy was to file an appeal within twenty-days of the Order, not file to modify since no change in circumstance had occurred.

It is an interesting example of procedural nuance and code interpretation and offered in its entirety below:


On December 11, 2012, the Honorable Peter W. Schmehl of the Berks County Court of Common Pleas, Domestic Relations Section, explained what factual and legal requirements must be met for a petition for modification of a support order in Miller v. Miller, No. 12-15465 (Pa. Ct. Com. Pl. Berks Co., Dec. 11, 2012).  In this case, Ms. Miller filed a Complaint for Support against her ex-husband, Mr. Miller, for both her and her child.  After a domestic relations conference before a Domestic Relations Conference Officer, the parties consented to a Support Order allocating approximately $1,900 per month to Ms. Miller and her child.

On August 31, 2012, a mere eighteen days after consenting to the Support Order, Ms. Miller filed a Petition for Modification of a Support Order (the “Petition”). In the Petition, Ms. Miller claimed that “Since the entry of the Order, the circumstances have changed substantially as follows:  Expense of $3,800 per month was improperly deducted from Mr. Miller’s net income.” On September 13, 2012, Mr. Miller filed Preliminary Objections to the Petition claiming that Ms. Miller failed to comply with Pa. R.C.P. 1910.19(a), which requires that the Petition aver a material and substantial change in circumstances in the two weeks since the Support Order was entered.  Basically, Ms. Miller did not allege any financial changes over the eighteen-day period, but instead, Ms. Miller simply believed that there was a calculation error in the Support Order.  On September 20, 2012, the Court sustained Mr. Miller’s Preliminary Objections and dismissed the Petition.

On October 1, 2012, with the assistance of her new counsel, Ms. Miller filed a Petition for Reconsideration and an Answer to the Preliminary Objections.  Ms. Miller argued that Judge Schmehl should reconsider because she was not given the requisite twenty (20) days to either Answer Mr. Miller’s Preliminary Objections or to file an amended Petition.  In her Answer to the Preliminary Objections, Ms. Miller also argued that the agreed upon Support Order was based on a mutual mistake of the parties, and that the biweekly expense of $1,900 was improperly deducted from Mr. Miller’s support calculations. 

Judge Schmehl found that, although the decision granting the Preliminary Objections cut short Ms. Miller’s twenty-day period to answer or amend the Petition, any Answer or amendment would be futile given these particular Preliminary Objections and Ms. Miller’s underlying Petition.  Ms. Miller could not possibly answer the Preliminary Objections such that the Court would overrule the Preliminary Objections. 

In affirming the prior Order sustaining the Preliminary Objections, Judge Schmehl first noted that 23 Pa. C.S.A.§ 4352(a) provides that a petition to modify a support order may be filed at any time if the requesting party demonstrates a substantial change in circumstances.  Further, Pa. R.C.P. 1910.19(a) requires that a petition to modify a support order shall specifically aver the material and substantial change(s) in circumstances upon which the petition is based. 

Judge Schmehl found that Ms. Miller did not aver any changes in circumstance in her Petition, let alone a material or substantial changes.  Judge Schmehl noted that Ms. Miller did not allege such valid changes in circumstances such as loss of employment or receipt of a promotion in the Petition.  Clearly, a mere allegation that a support calculation is “improper” is insufficient to support a finding that circumstances had materially changed. 

Relying on Florian v. Florian, 689 A.2d 968, 971-72 (Pa. Super. Ct. 1997), Judge Schmehl held that had Ms. Miller wished to challenge the calculation set forth in the Support Order, she should have filed an appeal, not the Petition. 

Judge Schmehl held that the Support Order was not only an arrangement between the parties, but was also the result of the determination of an officer of the Court – the Domestic Relations Conference Officer – acting as a trier of fact.  The Conference Officer’s finding was consented to by both parents and no appeal followed.  Judge Schmehl found, therefore, that the Support Order is now the law of the case, and would be subject to change only upon some material and substantial change in circumstances. 

First, Judge Schmehl’s order affirms that a support litigant must follow the proper procedures for challenging an incorrect calculation by filing an appeal.  Second, Judge Schmehl cut short a potentially futile, costly and time-consuming battle involving the Petition when it was clear that Ms. Miller’s arguments were without merit from the outset. 

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While this topic of this blog post is not exactly what this blog typically covers, I frequently find that litigation in another areas of law either impacts or illuminates an issue dealt with by our family law clients.  One such example would be a recent decision at the Eastern District of Pennsylvania interpreting various terms of the Family and Medical Leave Act (“FMLA”).  In that case, a mother had to take off time from work in order to find a new daycare for her autistic daughter who has significant developmental disorders and physical impairments.  Her employer, Reading Hospital Medical Center, opposed the use of FMLA leave for this purpose.  FMLA leave is designed to allow an individual to take time off from work to address family medical issues without the risk of losing their job.


The Honorable Timothy J. Savage of the Eastern District looked to the Americans with Disabilities Act (“ADA”) to help identify whether or not the mother’s daughter had impairments which would cause her to fall within the “serious health condition” category of the FMLA.  In doing so, there was also the interpretation of whether the change in daycare constituted “changes in care” as it is contemplated by FMLA regulations.  As drafted, the regulations are silent as to whether moving from one non-medical facility to another constitutes a “change in care,” as it would otherwise be considered when moving someone to a facility offering medical treatment.


Judge Savage’s opinion would appear to expand the definitions of some important FMLA terms, but Reading Hospital Medical Center disagrees and does not consider the holding to be a significant expansion of FMLA regulations; they believe Judge Savage’s opinion addresses their narrow set of facts and does not have a broader application beyond this case.  Nevertheless, the holding seems to make a persuasive argument that the regulations now include changes of care for a family member with a serious medical condition, even if the change of care relates to a non-medical facility.  The designation of the medical condition of the individual will dictate whether the time off to facilitate a change in care falls within the protections of the FMLA.


 The application of this case to family law is that informs both attorneys and clients as to how much flexibility they have to make appropriate child care arrangements for a special needs child during work hours.  This could be extremely important to a client with a disabled child who has either a limited support network or a difficult (or even non-existent) custodial arrangement with the other parent. Maintaining consistent child care can be challenging under the best of circumstances, but when medical and developmental issues of a child are factored in, it makes a difficult situation that much harder.   For a single parent, child care coverage means maintaining employment and stability for the child; it would seem like Judge Savage’s opinion reasonably fits into the purpose behind the FMLA.


For more information about other employment discrimination issues, go to Fox Rothschild’s Employment Discrimination blog written by Richard Cohen and Christina Stoneburner of our New York and Roseland, NJ offices, respectively. 


The case involved is Wegelin v. Reading Hospital Medical Center.   An article on the case was written by Saranac Hale Spencer (sspencer@alm.com) and published in the December 4, 2012 issue of the Legal Intelligencer (Vol. 246, No. 108).