Attorneys sometimes read appellate cases and wonders “why?”  This is one such case; a case with any easy result made complicated and difficult for reasons not easily understood.

The facts of R.K.J. v. S.P.K. 2013 Pa. Super. 259 (9/26/13) are easily condensed.  Man and woman have a multi-year relationship which borders upon marriage but that event never actually occurs.  Along the way, a child is conceived and born even though the birth mother is still married to someone else. Because the relationship is “good” at the time the baby is born, the defendant goes to the hospital, participates in the birth and signs the proffered acknowledgment of paternity before mother and baby are discharged.  He does so, even though he knows the child is not his.  To this writer, the case is closed. Perhaps the man made a mistake but the one principle of law universally accepted even though not found in Purdon’s or the body of judicial precedent is: “Don’t sign anything unless you expect to be bound.”

The facts get worse for this putative father.  He and the mother continue their relationship and for the next six years he really does appear to play the role of father even though it appears someone else was the actual father.

The reader can guess the next part.  Mother and “father” see their relationship disintegrate and mother decides to sue “father” for child support.  The trial court decides the case on the principle of paternity by estoppel.  The Superior Court affirms.  The “father” asks the Supreme Court to review and they remand the case for consideration under their new decision in K.E.M.v. P.C.S. 38 A.2d 3d 798 (2012)

Now, back in the trial court, the case starts to take on a surreal aspect.  The Court appoints a psychologist to assess whether the defendant should be the father.  The man renews a series of demands for blood tests, none of which is ever ordered.  The psychologist renders an opinion that the child needs a father for all the reasons any layperson could figure out.  The one reason that seems especially twisted is that since it is not clear who the real father may be, this man has an income and thus has the ability to support the child.  So, voila the man is again declared to be “father” by estoppel even though the facts on which estoppel is traditionally based (e.g., written acknowledgment of paternity and in loco parentis conduct) seem to take a back seat to the psychological findings.

In olden days, paternity was decided based upon allegations of sexual access coupled with physical evidence that the child looked like the Father.  In the late 1980s DNA evidence made it possible to determine with near arithmetic certainty whether a man was the Father.  Throughout this period there was also the presumption that a child conceived during marriage was the child of the husband no matter what the facts.  DNA testing has made a mockery of this latter doctrine but it still survives.

This case together with K.E.M. take us into dangerous new territory.  All of it is built on the pure fiction that once a person is declared a “father” for whatever reason, he will want to act in a positive way. History has taught us that even fathers bound to their children by common DNA do not always do the right thing. Does anyone seriously believe that a father “trapped” into supporting a child not otherwise his for eighteen years is going to view the experience of being sued for support as an instructive enterprise?  As attorneys advising clients, is it not now our responsibility to advise men who live with women who have children of uncertain parentage that any kindness, whether pecuniary or emotional, delivered to the child could create exposure for years of support premised upon the child’s psychological perception of parentage and the “child’s best interests?”

These are discomforting thoughts.  When we have the scientific means to ascertain a real answer, it smacks of a return to common law legal fictions to say that we will ignore the science in favor of a perceived “best interest” as interpreted by a court appointed psychologist.  Most common law legal fictions arose from the fact that we needed a scientific answer but could not secure one.

In this case, S.P. K. made a serious legal mistake when he acknowledged paternity without a blood test confirming his status.  He compounded the mistake by embracing the child for only so long as his relationship with the mother endured.  He could have been found liable for support based on the acknowledgment he signed or in loco parentis based upon his conduct in the succeeding years.  But the concept that courts must now employ psychologists to help decide paternity based on a best interests analysis is fraught with the worst kind of peril; peril without purpose.

Post script:  What makes this case all the more bizarre is the treatment of the man who was married to the plaintiff at the time she became pregnant.  The defendant sought to join him as a party to the case. That request was denied.  All the opinion offers us is that the child has never seen his alleged biological father.  Query how this case can be decided without knowing positively the identity of the true father or considering the fact that under cases like Stanley v. Illinois 405 U.S. 645 (1972) the right to raise one’s biological child is fundamental.  If the plaintiff’s husband (a) is the biological father and (b) was never told he had fathered this child, is there any constitutional basis to deny his petition for custody?  Would S.P.K. also owe him child support if he demonstrated himself to be a more fit parent than the natural mother and secured primary custody? 

In a decision published on May 6th of this year the United States Tax Court held that the Treasury Department and the Internal Revenue Service were not bound by state court rulings that allocate child dependency deductions for federal income tax purposes.

In Shenk v. Commissioner, a state court divorce judgment had assigned to a Father the right to claim the dependency exemptions for all three of his children, even though they lived primarily with their mother, provided that he was current with his child support. In violation of the state court judgment, the former wife refused to execute Federal Form 8332 which is required for non-custodial parents to claim the exemption.

Notwithstanding the state court ruling Tax Court judge David Gustafson held “ultimately, it is the Internal Revenue Code and not the state court orders that determine eligibility to claim a deduction for federal tax purposes.” Gustafson essentially put the burden on the Taxpayer to get a state court order compelling the mother to sign Form 8332.  If a parent does not have primary custody the only means to claim a child is by securing the form from the primary custodian.  A taxpayer must have that problem resolved within three years or the statute of limitations (26 U.S.C. 6501(a)) will bar an amended filing. In this case, the taxpayer did not secure the signed form within three years so the claim was lost.

In addition the failure to secure the exemption also prevented the taxpayer from claiming head of household status. Could the taxpayer sue his former spouse in state court for the additional tax and penalty prompted by her refusal to abide the state court judgment granting him the deductions?

The Pennsylvania Rules of Court are a slender little 1,500 page volume published a couple of times a year.  One of the subjects covered by the rules is the support guidelines. The support guidelines have been around since 1984 and are updated based on new demographic data every four years.  In some instances the committee that proposes rules to the Supreme Court also makes amendments to the procedure.  Otherwise, it is only the numbers that change.

2013 is a numbers change year and the data is not very different.  We did a brief comparison of guideline amounts for families with 1-6 children and combined net incomes of $5,000 to $30,000 per month.  Here is what we found.

Monthly                 1             2             3             4             5             6

5000.                  944.        1350.     1566.       1749.     1924.      2092.         Current  

                         v 960.        1369.     1586.      1772.      1949.     2118.           Effective 8/9/13 

10000.             1385.       1965.      2266.     2532.       2785.    3027.            Current

                        v 1399.      1981.      2281.     2548.       2803.    3047.          Effective 8/9/13 

20000.              2147.      2994.      3426.     3827.       4209.   4575.            Current

                         v 2135.      2997.     3422.     3822.       4205.    4570.          Effective 8/9/13 

30000.               2756.      3777.     4210.     4703.       5173.    5623 .           Current     

                          v2801.       3836.    4277.     4718.       5190.   5641.            Effective 8/9/13

In a nutshell it appears that on the same income most of the amounts went up $20.00 a month while some declined $4.00-5.00.  So even though new guidelines are themselves a “change in circumstance” which allows for modification by itself (i.e., income did not change) the changes are essentially negligible within the grids (up to $30,000 per month). 

Get beyond $30,000 a month in net income and the changes are noteworthy. The guidelines establish a presumptive minimum which is $2,801 for one child at $30,000 a month.  For each dollar over that $30,000 a percentage is employed using the chart below.  These changes are:                              

After 30k.          1 child  was       6.5%  now. 8.5%

                            2 children          8.               11.6

                            3.                       9.2              12.6

                            4.                      10.3            14.3

                            5.                      11.3             15.8

                            6.                     12.3             17.1 

So if the household net income is $50,000 a month and one child is involved, child support is $2,801 on the first $30,000 and 8.5% of the next $20,000.  An order entered today would be $4,101 ($2801 + (20,000 x .065).  Effective August 9th, that same child will merit $4,501.00 per month.  Note also how the percentages grow with the number of children.  The same $50,000 income and six children now takes the order up by $960 a month. 

For high income earners, these revisions represent a significant change to their child support case.  It is worth noting that revisions to the child support guidelines are a de facto “change in circumstance” and grounds for either party to file a petition to modify.  For those who receive support, the new guidelines may be an opportunity to revise the child support award, even if there has not been a change of income for both or either side.

A few years ago we discussed changes in Federal version of the CHIP program which provides low or no cost health care coverage to minors. Pennsylvania has a long-established CHIP program (having been one of the initial states to adopt the program) which is about five years older than the Federal version.

 

Recently, Governor Corbett notified the U.S. Health and Human Services Secretary, Kathleen Sebelius, that he was seeking an exemption from having to transfer about 70,000 Pennsylvania children from the CHIP program to Medicaid. This is a controversial request since Gov. Corbett is on record for declining to expand Medicaid as part of the Obama Affordable Care Act. His decision on transferring children off CHIP and onto Medicaid has been met by criticism by some public interest groups based on the belief that children would be better served by Medicaid than under the CHIP program.

 

An analysis of this issue is provided in the May 31, 2013 online edition of the Times Herald. Marc Levy interviewed attorney Richard Weishaupt who believes that Medicaid is a better option for families than CHIP because Medicaid “covers all medically necessary services, while CHIP provides more limited coverage, which is fine if a child is normal and relatively healthy.”

 

CHIP is the only medical program a child may be enrolled in and does not utilize secondary or “wrap around” coverage Medicaid can be used for with disabled children, for instance. The nuances as to one plan or the other are really individualized by the needs of the families participating in them. Regardless, they are two tools for providing children with health care.

It would be easy to assume there is an element of politics to Gov. Corbett’s decision, but there may be a budgetary motivation, as well. Mr. Levy points out that one advantage to keeping more children in CHIP is that the Commonwealth will collect more money from the Federal government than it would under the Medicaid coverage.

 

The next six months will be interesting as Pennsylvania and the U.S. gears up for the anticipated effective dates of various provisions of the Affordable Health Care Act, notably, the state insurance exchanges. Issues such as the transition of children from CHIP to Medicaid will likely increase and it is important to remember that their impact on families are real and should not be lightly considered. 

http://www.itsallaboutaging.com/blog/wp-content/uploads/2009/10/Its-All-About-Aging-Money-and-Handcuffs.jpg(Photo: Its All About Aging)

A glance at the Pennsylvania Support Code reveals the various enforcement mechanisms at the disposal of county Domestic Relations Offices. Rule 1910.20 offers remedies such as liens on real estate, reporting the delinquency to credit reporting agencies, and the initiation of a contempt action.Montgomery County recently announced a program to help encourage delinquent child support payors to come in and work on resolving their unpaid child support.  On May 29th, Montgomery County Sheriff Eileen Behr announced that the creation of a one-week “amnesty period” beginning June 10th for parents who are delinquent on their child support.

During the amnesty period, delinquent parents can to go to the Montgomery County Domestic Relations Office and set up a payment plan or other arrangements to pay down their support arrears and begin to regularly pay their monthly support obligation. 

The alternative is that the they will be arrested. If a party does not come into DRO to address their arrears, Sheriff Bahr has made it pretty clear: they are coming for you. Montgomery County Sheriff Deputies will be deployed in warrant teams to begin the process of serving bench warrants against individuals who have failed to pay their support. The Sheriff’s Department also has an anonymous tip line for information on delinquent parents.

These people have bench warrants due to DRO initating contempt actions against them for failing to pay child support and they never showed up to the hearing. Anyone familiar with this process knows the drill: the judge reads the list of cases and if the clerk indicates the paying party did not appear, a bench warrant is issued without further discussion.

Sheriff Behr stated that in cooperation with the Domestic Relations Office and Court of Common Pleas that the Sheriff’s office has “approximately 300 outstanding warrants that represent $5.7 million dollars in back child support.” The County takes things a step further by listing delinquent paying parents on its website.

 

Though not as creative as Lee County, Alabama who set up a sting operation offering Alabama/Auburn football tickets as bait, it is a way for Montgomery County to try to collect the more than $5.7 million in uncollected child support and hold delinquent parents accountable for their child support obligations.   

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(Photo by Indi Samarajiva)

 

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

 

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

 

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

 

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. 

Along with the recent revision to the standing provision of Rule 1910.3, the Pennsylvania legislation also made revisions to Rule 1910.19, which addresses the relatively rare, but frustrating issue of support overpayments.

Addressing overpayments related to child or spousal support can be frustrating for the party paying support (the “payor” or “obligor”) because of the disparity in attitude toward overpayments compared to people who do not pay their support on time or at all. For instance, if they were to owe support (be in “arrears”), their tax return would get intercepted, they couldn’t buy or sell a house without satisfying the debt, or they may have other enforcement remedies taken against them.

 

The policy of the Domestic Relations Office (“DRO”) for overpayments, however, is that it is preferable to carry an overpayment until the support obligation ends. This is policy is reasonable and logical, but it does raise two questions for the payor:

 

1)         How do I stop the order from charging; and

2)         How do I get the overpayment returned.

 

The first question received some minor tweaking to Rule 1910.19 which went into effect October 31, 2011. DRO will make an emancipation inquiry within 6 months of the date the child is to turn 18 years of age. If the notice is not returned to DRO within a six (6) month time frame and there is overpayment on the books then DRO shall administratively terminate the child support order on the perspective date of emancipation (18 years of age and graduated from High School).

 

Now that the Order has been stopped, the next question is to figure out to have the overpayment returned to the payor. Rule 1910(g)(1) and (g)(2) now allow a procedure to accomplish just that:

Section (g)(1) allows that when a charging order is in effect, DRO will reduce the Order by 20% until the overpayment is discharged. The payee can contest this reduction and request a hearing;

Section (g)(2) provides that if there is no charging order in effect (for example, it has been terminated due to emancipation), the payor may petition DRO to recover the overpayment. DRO has, within their discretion, the authority to enter an Order against the payee to pay the overpayment on a monthly payment schedule – basically, a support order in reverse.

 

Overall, this is a step in the right direction for correcting a procedural conundrum for DRO. While the number of people who will utilize these rules may pale in comparison to those payors who fail to satisfy their support obligations, both payors and payees are entitled to equal opportunity in  addressing their claims.

An important change to the Pennsylvania Support Code will go into effect very soon. Rule 1910.3 identifies those individuals who are allowed to bring child support actions and beginning November 1st the Rule will be expanded to allow “any person who may owe a duty of support to a child or spouse” to initiate a custody action.

This language definitively establishes that either party may begin a support action and eliminates some of the ambiguity as to whether a support action must be filed the obligee (the person entitled to receive support). The way the Rule was written, it could be interpreted that any person who has custody – even partial custody – could initiate the support action regardless of whether they were to be the payor or the payee. This put the Domestic Relations Offices and Court in the position of having a party listed as Plaintiff, but whom is in reality should be the obligor. Payor’s filing to start support actions tended to cause administrative confusion for the Courts, so whether or not the action moved forward usually depended on whether the non-filing payee party was willing to let it move forward.

One would assume that any one owed support would file for it, but there could be strategic reasons for holding off on filing for support, especially if there was an alternative source of income for the obligee, or if the obligee was seeking to establish standing to file for support in a more advantageous support jurisdiction. The consequence was that a party who knows they will owe support could not effectively address the situation without the obligee taking the appropriate steps to file and schedule a support conference.

Thanks to this language revision and the addition of Subparagraph (b), any party can initiate the action and the trier of fact will be the one who decides who is the obligee and who is the obligor. As stated in the “Explanatory Comment” the new category recognizes that some people “may want to start paying spousal support or alimony pendente lite to the obligee as soon as possible to avoid the accumulation of retroactive arrears…”

 

This revised rule is, ultimately, a common sense shift to ensure that any one with a support entitlement or obligation has access to the courts and can have that obligation addressed without any delay or detriment to the child/ren or spouse subject to the Order.

Part of what makes the law fascinating is that there are certain legal issues that have no clear solutions. In many cases, both sides have equal merit. The matter of whether incarceration should reduce or eliminate a support obligation is one such question.

The Supreme Court of Pennsylvania ruled on this question in Yerkes v. Yerkes, 824 A.2d 1169 (Pa. Supreme 2003). In Yerkes, the court found that criminal conduct was a volitional act and that where one acts in a way that results in incarceration, that person should not be able to use his crime as a basis to avoid a support obligation.

Even though the Supreme Court is the state’s highest judicial authority, the controversy has not ended. In 2000, Melissa Plunkard gave birth to a child by John McConnell. She sought and obtained an order of $275 a month in child support. In 2003, Mr. McConnell was convicted of a crime and sentenced to 6-12 years. In February 2007, Mr. McConnell filed to terminate his support obligation premised upon the fact that his incarceration prevented his earning income. He also sought the elimination of support arrearages that had begun to accrue before his incarceration and continued after he was confined in prison. Under Yerkes, the law would have been clear. But, in 2006 the Supreme Court issued a Rule of Civil Procedure (1910.19) that gave courts the authority to modify or suspend support orders where it was found that the person owing the support had no income or ability to pay and that this condition would continue for the foreseeable future.

So what happened to Yerkes and the principles it espoused? In a word, it fell victim to federal laws regulating federal subsidies. As welfare costs skyrocketed in the 1970s and 1980s, the US government decided to get involved in the collection of child support. Beginning in 1984, the US government began to issue regulations to states. The regulations essentially dictated how state child support systems would operate. If the state failed to comply, federal welfare subsidies to the state would be reduced or eliminated.

To encourage states to collect child support, the system is now rigged with incentives for collection and disincentives for states that have large pools of unpaid support arrearages. Needless to say, from 2003 forward, Mr. McConnell’s support account was an expanding pool of unpaid child support. This caused problems for the state when McConnell’s arrearages, and those of the thousands of other Pennsylvania inmates, came under federal scrutiny. It was not enough to tell the US Department of Health and Human Services that these sums were presently uncollectible. Instead they had to be “written off”. Thus, in 2006 Pa. Rule of Civil Procedure 1910.19 was born and the principle of Yerkes (even parents in jail owe support to their children) was subordinated to the demands of the federal bureaucracy.

But wait. At the insistence of the federal government, Pennsylvania had passed another statute that would have “trumped” the 2006 rule in part. Mr. McConnell was jailed in 2003. He did not seek modification until 2007. The Support Law, 23 Pa. C.S. A. 4352(a) states that except where a child is emancipated, there can be no retroactive modification of arrears. The exceptions to this rule are very narrow. They include a physical or mental inability of the petitioner to file the petition; misrepresentation (e.g., failure to disclose facts required to the other party) or other compelling reason. The statute further says that the party seeking retroactive modification must act promptly once the disability is removed or the misrepresentation discovered.

In the McConnell decision, the Superior Court applied several different approaches. The arrears that accrued before McConnell was incarcerated were not remitted, even though it seems clear that he has no present ability to pay them. And even though the Court expressly finds that Father showed no compelling reason for his failure to seek the termination when first incarcerated, it remitted the arrears anyway. The premise for this decision appears to be the fact that the rule allowing termination was issued by the Supreme Court in May, 2006. How the Court had authority to vacate arrearages that accrued before the Supreme Court rule was changed is a question still lingering in this writer’s mind.

The appellate court also emphasizes a part of the 2006 rule that states that these orders are without prejudice. What does that mean in the real world? Can they later be reinstated and, if so, on what basis? All of this remains to be seen. In the meantime, if you find yourself encountering a petition of the kind Ms. Plunkard did, we would probably recommend that you promptly convert all existing arrearages to a judgment recorded with the Prothonotary.