Dependent on Child Support in Dependency

It is widely known that it is public policy is to ensure children receive the support they need from their parents. In the vast majority of cases, a child support obligation terminates when a child reaches the age of majority (age 18) or graduates from high school, whichever is later, however, the Superior Court of Pennsylvania, in the recent matter of Somerset County Children and Youth Services v. H.B.R., 155 A.3d 627 (Pa. Super. 2017), has addressed the atypical situation when a child reaches the age of majority yet still remains subject to a dependency order.

In H.B.R. the child-at-issue was put into placement following a dependency action. Consequent to the same, Children and Youth Services (CYS) filed a complaint for child support against the child’s father and, accordingly, an order for child support was entered. A little over two years after the child support order was entered, the father filed a petition to modify the child support order, requesting termination of the same, because the child, having reached the age of majority and graduated from high school, was emancipated. Despite reaching the age of majority and graduating from high school, the child voluntarily chose to remain in the custody of CYS until age 21, which is his right to do.

After the child support modification conference, the trial court entered an order terminating the child support order as the child is emancipated due to reaching the age of majority and graduating from high school. In response, CYS demanded a hearing contesting the termination of the child support order because, although having reached the age of majority and graduating from high school, the child continued to be dependent and in the custody of CYS and, therefore, financially subsidized by CYS. After the hearing mentioned above, the trial court affirmed the order mentioned above flowing from the conference terminating the support order. As a result, CYS appealed the matter to Pennsylvania Superior Court.

On appeal, CYS essentially argued that as it must still outlay money for the support of the child, due to his remaining dependent, the father should contribute to the same through a child support order. Furthermore, CYS claimed that the child support process may be the only mechanism available to it to seek recoupment of its costs for the emancipated child.

In rendering its decision, the court first noted that the Pennsylvania Supreme Court has ruled that a parent has no legal duty to provide educational support to an emancipated child. Based on this, Superior Court, specifically agreeing with the trial court, said that “a parent has no duty in Pennsylvania to provide support to a college-age child who has graduated from high school and who suffers from no infirmities which would prevent that child from earning income to help support himself.”

In light of the above, the court ruled that CYS failed to convince it that the trial court’s order, described above, is “manifestly unreasonable or based on bias, ill will, prejudice and partiality.” Instead, the Superior Court noted, the trial court’s order is precisely consistent with applicable law, especially considering that the child is emancipated and capable of self-support. Therefore, the father has no legal obligation to continue paying child support.

As part of its analysis, the court distinguished this case from the matter of Erie County Office of Juvenile Probation v. Schroeck, 721 A.2d 799 (Pa. Super. 1998). In Schroeck, the parent was obliged to pay the cost of care for the child-at-issue in that case even though the child was over 18 years old and graduated from high school and therefore emancipated. Despite meeting the two primary factors for emancipation, the child was also adjudicated delinquent and placed in a court-ordered residential program. In ordering support for this child, the court’s reasoning in Schroeck was that, due to being adjudicated delinquent and in a residential program, the child was rendered effectively unemployable and incapable of self-support. By contrast, the Superior Court noted, the child in H.B.R. has no such limitations which would trigger a support obligation. The court pointed out that his decision to remain in the custody of CYS is not mandatory and does not render the child incapable of self-support.

Ultimately, Superior Court affirmed the termination of the father’s child support obligation. The court observed that CYS may have other avenues to pursue under 62 Pa.C.S. Section 704.1 and an action to seek reimbursement due to the child being able to engage in self-support, but elected not to provide any guidance as it does not issue advisory opinions.

Originally published on June 29, 2017 in The Legal Intelligencer and can be seen here.

Advertisements

Considering Retirement While Paying Child Support

It is becoming increasingly common for people who are approaching traditional retirement age—or are already retired—to have children who are minors. As a result, the prospect of a having to consider an ongoing child support obligation when considering retirement is becoming more common.

The matter of Smedley v. Lowman , 2 A.3d 1266 (Pa.Super. 2010), addressed the matter of retirement and child support directly, and now provides guidance for the same.

In Smedley the obligor father became fully vested in his police department ­pension at the age of 50 and elected to retire at age 52. At the time of his retirement he had a 7-year-old child for whom he had a child support obligation. The obligor’s retirement resulted in his income being cut approximately in half.

It is undisputed law in Pennsylvania that an obligor cannot voluntarily retire in order to justify the reduction of a child support obligation. A voluntary retirement only permits an obligor to pursue a reduction in his obligation. The court found in this matter that the father did not retire in order to have his child support reduced; therefore it could consider whether his reduction in income could warrant or justify a reduction in child support.

 At a child support conference and trial, a child support order was entered assessing the father an earning capacity of his pension plus $200 per month, which reflected a $10 per hour job at 20 hours per week. As this was a finding of earning capacity, the father did not actually have such a job; rather the earning capacity was imputed on him. The father’s only actual income was his pension.

The father appealed and asserted that his retirement income should be the only income considered for a child support ­obligation, as opposed to any additional income imputed on him per a finding of a higher earning capacity. He argued that his ­retirement should not be considered an early retirement, or a voluntary retirement, because he was fully vested when he elected to retire; indeed he was already vested for two years when he retired. As the court has found that the father did not voluntarily reduce his income, through retirement, in order to circumvent his support obligation, the court was free to consider whether the father’s support obligation could be reduced due to his decreased income as a result of his retirement.

In reviewing the facts and evidence, the court found that the father’s reduction of income—his pension was half of the amount of his income when he was employed—was voluntary. No evidence was presented that his employer pressured him to retire or his health made it ­difficult or impossible for him to continue to work. Indeed, the court stated more than once that he was in good health and relatively young.

The court also pointed out that its review was to discern whether the lower court’s decision was an abuse of discretion. To that end, the court observed that the earning capacity the lower court assessed the father, $35,400 per year, which is still significantly less than his prior income of $50,000 when he was fully employed, was not an abuse of discretion.

Finally, the court admonished the father by observing that the father still has a 7-year-old daughter to care for and his ­decision to ­voluntarily retire at a relatively young age and in good health does not somehow take away his obligation to ensure his daughter has adequate support as, ultimately, support orders are, after all, for the benefit and ­interests of children.

The court’s analysis in Smedley was later applied in the matter of Pikiewicz v. Timmers , 106 A.3d 177 (Pa. Super. Ct. 2014). Although Pikiewicz was not reported and is nonprecedential, it does provide insight into the mind of the court on this issue. In Pikiewicz the obligor, a healthy 44-year-old man, elected to voluntarily retire and collect a pension, which reduced his income by nearly $4,000 per month, purportedly to spend more time with his son. The Superior Court of Pennsylvania, upon review and looking to Smedley for guidance, found that while the obligor did not retire in order to circumvent a support order, his voluntary retirement would not warrant a reduction in his child support considering he was in good health and refused to mitigate his reduction in income by securing alternative ­employment. As a result, the obligor’s earning capacity was assessed at his income when he was fully employed. The court bolstered its decision by noting that the support ordered was for the support and best interests of his child and that this obligation remains despite his decision to voluntarily 
retire.

Smedley was later reviewed and cited by a recent case called Kutsch v. Anthony, No. 252 (WDA 2016). Granted, the Kutsch matter, too, is unreported and explicitly nonprecedential, but it does provide a glimpse as to how the Superior Court of Pennsylvania may apply Smedley into the future. In Kutsch, the obligor was also retired and, therefore, the court had to consider how that retirement would affect his support obligation. The court, in Kutsch, noted that the obligor’s retirement was due to his failing knees which made it impossible for him to continue to work as a truck driver. As a result, the court found that while his retirement may have been early (he was only 55 years old), it was certainly not voluntary. On that basis the court distinguished Smedley from Kutsch as Smedley dealt with a voluntary retirement. As a result, the court in Kutsch declined to assess an earning capacity to the obligor as it did in Smedley based on an income other than his retirement 
income.

As more and more people are retiring while they still have a legal obligation to pay support to a minor child, it is becoming increasingly important for practitioners to keep a close eye on how this area of the law develops.

Published in The Legal Intelligencer on March 20, 2017 and an be seen here and was published in Volume 39, Issue No. 2, June 2017 edition of the “Pennsylvania Family Lawyer.” by James W. Cushing, Esquire (see here).

Stepparents Stepping Up to Pay Child Support

It goes without saying that noncustodial parents are liable for child support, but the law is still developing as to whether other people in parental roles—namely stepparents—would be liable as well. The recent matter of A.S. v. I.S. , 130 A.3d. 763 (Pa.2015), which the court believed was of first impression, has helped clarify the law on the subject.

In A.S., when the mother and the stepfather married, mother already had children from a previous relationship. During the course of their marriage, the stepfather developed a loving relationship with the children. Unfortunately, the marriage between the mother and stepfather broke down and was eventually dissolved in divorce.

Upon the separation of the parties, the stepfather immediately, and aggressively, pursued custody of the children. After extensive and protracted custody litigation, including a full trial, the court ruled that the stepfather stood in loco parentis to the children and, as a result, granted him shared legal and physical custody of the children on alternating weeks.

Once the stepfather was awarded custody, the mother took the opportunity to pursue him for child support for the children for whom he fought so hard to obtain custody of. In response, the stepfather argued that he ought not be liable for support because he is not the biological father, who incidentally is still alive and available to pursue for child support instead. The child support master, trial judge, and Superior Court all ruled in favor of the stepfather, in essence because he is not liable for support as he is not the biological father and merely provided the children with love and care. As a result, the mother appealed the matter to the Pennsylvania Supreme Court.

After a review of the above facts, the court surveyed the law, starting with the definition of “parent.” Unfortunately, the child support statute does not define “parent,” which led the parties to suggest using the Child Protective Services and Domestic Relations Code as a guide. The court rejected these suggestions, and observed that a modern “parent” encompasses more than simply biology. Instead, the court looks to see if a nonbiological parent “has taken affirmative steps to act as a legal parent so that he or she should be treated as a legal parent.”

The court noted that there is established precedent for a stepparent who holds a child out as his own legal child to have liability to pay child support for that child. In addition, there is also some precedent for finding a support obligation for someone who took affirmative steps to act as a parent.

Taking a broader view, the court explained that none of the factors identified above: standing in loco parentis, taking affirmative steps to act as a legal parent, and holding children out as one’s own are, taken alone, is sufficient to find someone liable for child support of a non-biological child. Furthermore, the court ruled that not even supporting the children during the marriage and acquiring visitation are necessarily determinative in finding someone liable for support.

Taking all of the above under consideration and applying it to the instant matter, the court found that stepfather did far more than take “affirmative steps,” but engaged in a—in the court’s words—”relentless pursuit” of the custody of the children. The court observed that “stepfather … haled a fit parent into court repeatedly litigating to achieve the same legal and physical custodial rights as would naturally accrue to any biological parent.” So, in the court’s view, the stepfather’s actions far exceeded merely wanting to maintain continuing post-separation contact, he wanted—and was granted—the right to become a full parent in every sense of the concept. As a result, stepfather has pursued all of the above: standing in loco parentis, taking affirmative steps to act as a legal parent, holding the children out as one’s own, supporting the children during the marriage, and acquiring post-separation custody.

In light of the fact that the stepfather is as invested in the children as described above, the court ruled that “equity prohibits stepfather from disavowing his parental status to avoid a support obligation to the children he so vigorously sought to parent.”

Therefore, yes, a stepparent can, in some circumstances, be liable for child support, but such liability is evaluated on a case-by-case basis to determine if it can be demonstrated that a certain threshold of involvement with the child at issue is reached (as described above) to warrant entering a child support order.

Originally published in The Legal Intelligencer on January 3, 2017 and can be seen here and reprinted in Volume 39, Issue No. 1, March/April 2017 edition of the “Pennsylvania Family Lawyer” (see here).

What Constitutes Mitigation of a Decrease in Earnings for Child Support?

It is axiomatic that the amount of child support one pays is calculated, in large part, according to the incomes of the parents of the child(ren) for which support is being sought. As a result, a reduction in one’s income can, and often does, result in a reduction in one’s child support obligation; however, there are times when one experiences a reduction in income and such a reduction does not permit a concomitant reduction in child support. The matter of Grigoruk v. Grigoruk, 912 A.2d 311 (Pa.Super. 2006), helps clarify when one may reduce one’s income and receive a consequent reduction in child support.

In Grigoruk, the mother, for the eight years prior to the opinion that is the subject of this article, was employed in various positions earning between $84,000 and $101,400 a year. She had an extensive education, including a doctorate degree, and had an impressive work history, including working as a certified teacher, school principle and school superintendent. She also served as the chief executive director of the Greater Lehigh Valley Girl Scout Council, earning $90,000 a year. After several years working with the Girl Scouts, the mother chose to take her career in a different direction, and secured a position as a reading specialist earning $52,000.

The mother filed for a modification of her support obligation due to her decline in income and that matter was appealed to Pennsylvania Superior Court, whose decision is the subject of this article.

At a hearing, the mother testified that she spent six months searching for a position and, pursuant to the same, sent out approximately 10 applications for employment. The reading specialist position was the only job application which resulted in a job offer to her. The mother explained during her testimony that she appreciated her new position as it was a less demanding job that would allow her more time to spend with her children.

 The father, of course, argued that the mother’s support obligation ought not be decreased as her reduction in income was potentially voluntary and her earning capacity, on which her support payments would be based, should be assessed according to her higher paying position. Further, the father argued she had an ongoing duty to mitigate her loss of income by continuing to search for a position with an income similar to her history of greater earnings.

Pursuant to Rule 1910.16-2(d)(1), accepting a lower paying job will generally have no effect on a support obligation; however, a party may not voluntarily reduce her income to attempt to circumvent a support obligation. In Grigoruk it was undisputed that the mother did not attempt to reduce her support obligation through securing a lower paying job. ue to a confidentiality agreement, the mother was unable to detail the causes of her separation from the Girl Scouts. As a result, the court assumed she was terminated for willful misconduct. Per the rule cited above, termination for cause can reduce child support if the parent suffering the decline in income mitigates her decreased earnings.

The father argued that a six-month job search which produced only 10 job applications is a paltry effort that hardly qualifies as mitigation. Indeed, the father noted that the mother chose not to pursue positions with similar salaries to her former positions, choosing to investigate lower paying jobs instead.

The court took a different view of the mother’s efforts. The court observed that the mother did apply for “quite a few positions” (including those with a salary similar to her earning history) and that she accepted the first offer that came her way. Indeed, refusing the job offer on the basis that its salary was too low would likely have caused her to be even more exposed to an argument that she did not mitigate her income reduction.

The father further argued that, regardless of the position the m other accepted, she has a continuing duty to continue to pursue employment offering a salary similar to her employment history.

The court observed that the issue of mitigation had not been addressed in existing case law. In analyzing the arguments, the court held that there was no argument or evidence suggesting that Mother’s reduction compromised the best interests of the children at issue, which is the primary consideration. Their lives have remained substantially the same: they live in the same house, they attend the same private school, and they participate in the same extracurricular activities. Indeed, the mother’s new position also affords her more time to spend with the children, which is in their best interests. Furthermore, the court also ruled that the law, as currently understood, does not require Mother to continue searching for a higher paying job in order to avoid being assessed a higher earning capacity.

The court respected the mother’s decision to commit to a new job which allows her to spend more time with her children and believed that she expended sufficient efforts to find satisfactory employment. Indeed, the court accepted mother’s assertion that continuing her job search could have jeopardized her current employment. The court, as an aside, commented that if the mother has an opportunity for advancement at her new employment, or is offered another job, which carries a higher salary with it, and chooses not to pursue it, there may be an argument to assess her a higher earning capacity.

When it comes to mitigation in child support, the instant case has helped clarify what the law is and how it is to be applied.

Originally published in The Legal Intelligencer Blog on November 10, 2016 and can be seen here and reprinted in Volume 38, Issue No. 4, December 2016 edition of the “Pennsylvania Family Lawyer and can be seen here.

 

When Marriages and Relationships Go Bankrupt

Money and assets are essential parts of divorce and support cases. Although the parties involved in family law cases have interests in money and assets, the reality is that creditors also often have interests in that same money or assets. Sometimes the pressure of creditors interested in obtaining that money or assets becomes so great that filing for bankruptcy is a viable and often resorted-to option by debtors. Of course, filing for bankruptcy potentially can directly conflict with the purpose of division of assets in divorce or support cases.

Generally speaking, filing for bankruptcy will result in an automatic stay against any potential creditors; however it does not serve as a stay upon any proceeding ­regarding the establishment or modification of an order for domestic support obligations and/or the dissolution of a marriage (with the exception of when a determination is sought regarding the division of property that is property of the marital estate).

In terms of the discharge of debts, 11 U.S.C. Section 523(a) prohibits the discharge of debts for support or pursuant to a divorce order. It also prohibits the discharge of debts to a current or former spouse and debts to a child generated during divorce litigation. In short, any debt that arises from a family law matter generally cannot be discharged in bankruptcy. Indeed, if ­filing pursuant to a Chapter 13 bankruptcy, the debtor must propose a plan that pays his domestic support obligations in full. For the purposes of Chapter 13, domestic support obligations include debts owed to one’s ­current and former spouses, child, child’s other parent, and support and alimony. It is worth noting that the language a family court uses in its orders is irrelevant to a bankruptcy court. In other words, bankruptcy courts apply bankruptcy law without regard to whether a family court attempts to work around bankruptcy issues through the use of ­different terms or carefully ­constructed language.

Sometimes an order in a family case can qualify as a nondischargeable support obligation even if it is not a “support case” (e.g., a child support case or a spousal support case). The court has laid out at least four factors to consider that can help discern whether such an order is a support obligation. First, one must look to the ­actual language of the obligation to discern whether it is couched in a way that makes it clear that it is support. Second, one must analyze the respective financial situation of the parties. For example, a great post-divorce wealth disparity between the parties would suggest the obligation is support rather than ­something else. Third, one must try and discern the purpose of the obligation at the time it is entered. Is it clear that its purpose is support, or is it merely property division or for some other reason? Fourth, and related to the previous factor, one must analyze any ­available evidence suggesting the intent of the estranged spouses. Did they intend for the obligation to be support?

In making its decision as to whether an obligation is, in fact, support, courts look at, and balance, all relevant evidence, which includes: the parties’ employment histories; the parties’ prospect for future income; in what proportion the marital property was divided; the number and frequency of any payments from one party to another; the need of the person in receipt of the alleged support for the same; the length of the marriage; the economic disparity between the parties; whether a party is caring for minor children; how the court labeled the money or payments (e.g., did it call it “support”?); and, when the ­alleged support ends or terminates.

Under bankruptcy law, and how it relates to family law, support obligations are distinguished from property settlement agreement debts as to whether they are dischargeable. Marital debts addressed in a property settlement agreement for a divorce may be discharged, and are not priority claims for the purposes of Chapter 13 cases. However, for the purposes of Chapter 7, the presence of a hold harmless clause in a property settlement agreement for such a debt between the ex-spouses creates a new debt between them that cannot be ­discharged. The same applies to debts owed to third parties.

In many family law cases, the court will award one litigant attorney fees for the litigation of the underlying family case. An award of attorney fees is considered to be a type of support and, therefore, cannot be discharged. In saying that, there have been cases where attorney fees have been awarded to a party in a family law case as a result of a sanction or as compensation for bad faith on the party of the adverse party. As these attorney fees are punitive in nature, they do not qualify as support and may be discharged.

The above hopefully provides a ­general guideline as to how family law and ­bankruptcy law relate to one another. It is always recommended for a family lawyer to consult with a bankruptcy lawyer when considering these issues.

Aside from the statute cited above, the following are recommended to review: 11 U.S.C. Section 522, 11 U.S.C. Section 362, In re Shepard, No. 07-1177 S 2008 Lexis 3349 (Bankr. S.D. N.Mex. June 30 2008); Nelson, Keys & Keys v. Hudson, No. 06-81745, 2007 Bankr. Lexis 3943 (Bankr. C.D.Ill. Nov.27, 2007); Deichert v. Deichert, 402 Pa.Super. 415 (1991), Long v. Calhoun, 715 F.2d 1103 (6th Cir.1982); Schulze v. Schulze, 15 B.R. 106 (1981). •

Originally published in The Legal Intelligencer on on June 27, 2016 and can be seen here and published in Volume 39, Issue No. 2, June 2017 edition of the “Pennsylvania Family Lawyer.” by James W. Cushing, Esquire (see here).

Doggone It! Court Cannot Condone Canine Custody

Many Americans have pets, and regardless of whether these pets are dogs, cats, lizards or fish, many pet owners think of their pets as members of the family. What happens when a pet is owned by a married couple who decide to divorce? The landmark Pennsylvania Superior Court case of Desanctis v. Pritchard, 803 A.2d 230 (2002) has answered this question rather definitively.

In Desanctis, the parties were married for about nine years. While they were married, they purchased their family dog, Barney, from the SPCA. As part of their divorce agreement, the parties, using terms typically reserved for child custody matters, awarded wife “full custody” of Barney while husband received what is tantamount to “visitation.”

Not long after their divorce, wife moved a fair distance away from husband and discontinued making Barney available to the husband for visits. Due to wife’s actions, husband filed a complaint against wife in equity. Husband sought injunctive relief to, inter alia, force wife to provide Barney to him, and modify the “custody” arrangement for Barney to ensure he had more time with his pooch. Wife filed preliminary objections to husband’s complaint that were granted by the Court of Common Pleas, which resulted in the dismissal of husband’s complaint, leading him to file an appeal to Pennsylvania Superior Court.

In its review of husband’s complaint and the preliminary objections, and the applicable law, the Pennsylvania Superior Court first pointed out that pets, regardless of our emotional attachment to them, are simply personal property. The court ruled that the agreement explicitly awarded the dog to wife. The court further ruled that any terms in an agreement which award a type of custody of the dog are void on their face.

Although it may be tough for animal lovers to hear, the court, rather bluntly, stated that a visitation schedule for a dog is analogous, in law, “to a visitation schedule for a table or a lamp.” As a result, pursuant to 23 Pa.C.S.A. Section 3503, property rights dependant upon a marital relationship are terminated upon divorce and, therefore, pursuant to 23 Pa.C.S.A. 3504, the parties to a divorce are to have “complete freedom” as to their property upon divorce. An agreement to somehow share property is not, by definition, complete freedom.

So, a divorce, in addition to dissolving the relationship between a husband and wife, also serves to potentially dissolve the relationship with a person and his pet. This is important to remember when separating as one may want to claim the pet as soon as possible in order to try and do as much as possible to retain the pet post-divorce.

Originally published in Upon Further Review on June 21, 2016 and can be found here and reprinted in Volume 39, Issue No. 1, March/April 2017 edition of the “Pennsylvania Family Lawyer” (see here).

Court Considers New Spouse’s Income to Determine Child Support Obligation

Nearly all child support orders are based on the respective incomes of the parents involved as measured by statutory guidelines. Sometimes, however, courts believe it is appropriate to deviate from those guidelines due to an unusual or extraordinary circumstance. In the matter of J.P.D. v. W.E.D., 114 A.3d 887 (Pa.Super.2015), the Court, notably and unusually, deviated from the guidelines by taking into consideration a step-parent’s income.

In May 2013 the obligor father (“father”) in J.P.D. filed a petition to modify his support order in order to account for the termination of his alimony order to his ex-wife, the obligee mother (“mother”).

Pursuant to the above-mentioned petition to modify, the parties fully litigated the support matter, including proceeding through a support conference, two custody masters’ hearings and an exceptions hearing (they each filed exceptions to the second custody master’s decision). The trial court, which heard the exceptions, took into account the father’s new wife’s income as part of his household income which warranted, in the court’s estimation, an upward deviation from the support guidelines resulting in father’s guidelines support obligation, about $700 a month, being doubled to nearly $1,400 a month.

Father filed an appeal from the trial court’s ruling to Superior Court claiming that a deviation of nearly 100% more than the guidelines amount was unlawfully punitive and/or confiscatory.

When reviewing the trial court’s decision, the Superior Court first noted that there is a rebuttable presumption that the guidelines support amount is the correct amount for a given case. See Pa.R.C.P. 1910.16-1. The presumption can be rebutted if it can be shown that a deviation from the guidelines is warranted per Pa.R.C.P. 1910.16-5. Father argued that a significant deviation, like the one in his case, is not a legitimate deviation, but is punitive and/or confiscatory.

The underling facts of the J.P.D. matter are fairly atypical. Father testified that his new wife has an annual income of approximately $1,000,000. He further testified that he does not pay for any of his own expenses, including mortgages, car payments, utilities, or even entertainment. He, instead, relies upon his wife’s substantial income for those expenses. Indeed, father could not provide virtually any details into his household expenses as his new wife has full control over them and provides for all of father’s needs. When pressed on his monthly expenses, father conceded that he does not even bother opening his mail, leaving that task for his wife. Furthermore, father and his new wife own the house in which they live, a weekend getaway house, and another property to be developed, while he also leases a Cadillac for $940 a month and travels and vacations frequently. The Court found that since father’s new wife provides for all of father’s needs, all of his income is available for child support purposes.

Father argued that, regardless of whether his new wife pays for his expenses, his own income is comparable to that of mother’s, so a deviation is not warranted. He further argued that a deviation which serves to double his support obligation is an abuse of the Court’s discretion.

In making its ruling, the Court pointed out, as a preliminary matter, that per Pa.R.C.P. 1910.16-5(b)(3), a deviation may be granted based on other household income. By taking into consideration father’s new wife’s income (the so-called “other household income”), the Court ruled that the trial court did not abuse its discretion in doubling the guidelines amount. The Court noted that even with the doubled support obligation, father’s support obligation still was less than 50% of his net income and is only 37% of his assessed earning capacity. Furthermore, even with the increased support amount, father’s household income would still enable him to satisfy all of his reasonable expenses – not to mention the luxuries described above – without having to contribute any money from his own income toward them.

In sum, the fact that father’s new wife’s income is so great, combined with the fact that his income was entirely unnecessary to pay for his living expenses, the Court ruled that it was not an abuse of discretion to account for his household income which would raise his support obligation to only 37% of his earning capacity.

Therefore, when litigating child support, it is key to inquire into, and perhaps consider, the other household incomes of the parties.

Originally published in Upon Further Review on April 26, 2016 and can be found here.

Superior Court Allows Child Support Deviation for Inheritance

The laws of the Commonwealth of Pennsylvania lay out guidelines for how an order for child support is to be calculated.  Although the guidelines are sufficient for the majority of cases, Pennsylvania law also allows for the opportunity to deviate from those guidelines provided certain circumstances are present.  The recent Pennsylvania Superior Court matter of E.R.L. v. C.K.L., Case No.: 437 MDA 2015, 2015 WL 9691033 addresses the effect a significant inheritance may have on a child support case.

 

In the E.R.L. matter the Mother filed for child support.  At the trial level, the Father’s (who is the obligor) annual earning capacity was stipulated to be $76,440 whilst the Mother’s (who is the obligee) annual earning capacity was $12.12 per hour over a twenty-five hour work week.  In addition to the above, the Father was found to have access to a $600,000 inheritance.

 

In calculating the child support obligation, the trial court entered an order which included a substantial upward deviation from the guidelines, as well as an additional assessment for current extra-curricular activities, and 80% responsibility for any future extra-curricular activities.  The Father appealed the aforesaid child support order to Superior Court.

 

At the outset, the Superior Court established that a child support determination must, first and foremost, serve the best interests of the child(ren) at issue.  Furthermore, a parent has an absolute duty to provide for his/her child(ren) financially, even if that duty causes hardship and/or requires sacrifice.

 

While the respective incomes of the parents in the instant matter were not in dispute, the Father took issue with the trial court’s consideration of his above-mentioned inheritance in entering the child support order, claiming that the inheritance was being treated as income.  The Superior Court clarified that assets, like the inheritance at issue herein, are not to be calculated as income, but rather may be relevant in determining whether an upward deviation from the child support guidelines is warranted.  To this end, the Superior Court noted that the trial court did not impermissibly treat the Father’s inheritance asset as income, but appropriately treated it as an asset to be considered for deviation.

 

Father further argued that the upward deviation was unnecessary as the standard guidelines support calculation was, in his estimation, sufficient to provide or his children.  In making this argument, Father first pointed out that the trial court did not detail how the nine statutory factors for a support deviation (per Pa.R.C.P. 1910.6-5(b)) each specifically applied to his case.  In rejecting this argument, the Superior Court explained that there is no legally required amount of detail for a trial court’s explanation for its deviation from the support guidelines, therefore addressing each of the nine factors individually is unnecessary.  Instead, the Court indicated that a trial court simply has to provide an explanation in sufficient detail as to provide a clear justification for its decision to deviate from the support guidelines.

 

Father then argued that the trial court entered an order that, if compared to the guidelines, would be for the support of seven children instead of his three, which makes it, according to him, clearly excessive and an abuse of the trial court’s discretion.  The Superior Court rejected this argument out of hand.  The Court ruled that if the asset exists, then it is open to be considered in a child support order and the trial court is within its discretion in applying the deviation to ensure his children have an appropriate level of support in light of the income and assets available and the fact that overarching purpose of a support order is to serve the best interests of the children at issue.

 

Finally, Father complained that assessing him 80% responsibility to pay for future extra-curricular activities is tantamount to granting the Mother sole legal custody to decide the extra-curricular activities in which to enroll the children.  The Superior Court dismissed this argument as well, noting that a support order does not influence a parent’s custodial rights over his children, and therefore such a custody argument is misplaced in the context of child support.  Instead, the Court suggested, if the Father has concerns regarding the legal custody of his children, he ought to file an appropriate petition in a custody proceeding.

 

As one can see, as a child support order is, ultimately, to be considered as promoting the best interests of the children for whom it is entered, all income and assets are to be considered when calculating child support, and a substantial inheritance is fair game when deciding whether a deviation from the child support guidelines is warranted.

Originally published in The Legal Intelligencer on March 5, 2016 and can be found here and reprinted in Volume 38, Issue No. 2, June 2016 edition of the “Pennsylvania Family Lawyer (see here).

Disability Benefits in a Divorce

The Superior Court of Pennsylvania recently weighed in on how, or even whether, disability payments are divisible upon divorce in the matter of Yuhas v. Yuhas, 2013 WL 5783117 (Pa.Super. 2013).

The husband in the Yuhas matter was a board certified vascular surgeon who developed carpal tunnel syndrome which left him unable to operate any longer.

The husband maintained a disability income insurance policy for which he had been paying premiums for several years.  The parties had been married since 1988, and separated in 2007, and marital funds were used to pay the aforesaid premiums in 1988 through 1993 and 2006 and 2007.  The premiums for the other years were paid through husband’s personal funds.

Husband applied for and was approved for benefits in 2007, before the parties separated, and received a lump sum retroactive payment for the first half of 2007.  The parties agreed that this sum was marital property.  After then parties separation husband continued to receive benefits based upon husband’s continued disability, but ongoing benefits could only be received through a continued proof of loss on an annual basis.

In 2007 a complaint in divorce was filed, which culminated in a divorce master’s hearing in 2009.  The parties litigated the issue of the post-separation disability payments through master’s hearings, exceptions, and trial court rulings, until ultimately appealing the matter to the Superior Court of Pennsylvania.  At the Superior Court level, the issue to be ruled upon was whether the post-separation disability benefits were marital property.

In making its ruling, the Superior Court looked to 23 Pa.C.S.A. Section 3501(a) regarding property division and cases decided thereunder.  The Court noted that the law is clear that property acquired during the marriage is marital property and property acquired before or after the marriage is not.  In saying that, the Court also looked to Section 3501(a)(8) which establishes an exception to the above that states that “any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received” is not marital.  The Court, relying on well-established case law, further expanded on the law, indicating that the relevant time of accrual is “when the right to receive that payment arose.”

Based on the above, the Court ruled that the critical question in its analysis of this matter “was whether the husband’s right to seek damages for his personal injury by filing a suit accrued during his marriage, not whether his suit was settled during the marriage.”

In reviewing the facts and law at play in this matter, the Superior Court ruled that the husband’s post-separation benefits are not marital as they do not arise from an injury which occurred during the marriage.  Instead, the Court recognized that the monthly disability benefits are not based upon legal action or a claim against someone.  Rather, the benefits are based on an insurance contract based on husband’s inability to work.  Furthermore, the monthly payments were contingent upon proof of continuing disability, and not merely disability during the course of the marriage.

Based on the above, the Court ruled that the husband’s post-separation benefits were not marital.

Originally published in The Legal Intelligencer Blog on May 26, 2015 and can be seen here and reprinted in Volume 37, Issue No. 3, September 2015 edition of the “Pennsylvania Family Lawyer” (see here).

Sole Legal Custody Means Solo Decision-Making

In the matter of M.P. v. M.P., 54 A.3d 950 the Superior Court of Pennsylvania clarified the extent of authority of a parent who enjoys sole legal custody s/he has over a child.

In M.P., the mother of the child at issue in the case is from Ecuador.  Most of mother’s family, including her own parents, still reside in Ecuador.  Mother was granted primary custody of the child in July 2009 and Father was awarded supervised visits for two hours per week.  Despite receiving such minimal custody, Father did not take advantage of it to spend time with his child.  In or about November 2011, after a hearing, Mother was awarded sole legal custody of the child.  Mother filed a petition to permit her to take the child to Ecuador for three weeks, a trip which Father opposed.  The lower court entered an order prohibiting Mother from taking the trip to Ecuador which led to Mother filing an appeal to Superior Court and it is the Superior Court’s decision that is the focus of this article.

Mother wanted to take the child to Ecuador as it is her own ancestral home and most of her family lives there.  It was not feasible for Mother’s family to come to the United States as there was testimony that Mother’s parents would have difficulty in securing visas to come to the United States and Mother’s mother has health issues which makes flying difficult for her.

Father opposed Mother’s proposed trip to Ecuador as he views Ecuador as a third-world nation filled with potentially dangerous diseases and crime.  He also had concerns about the compatibility of the child’s health insurance coverage with Ecuadorian hospitals and the difficulty retrieving the child if something unfortunate happened to the Mother.

The lower court, by its own volition, investigated international law and the terms of the Hague Convention regarding international custody arrangements and had concerns regarding Father’s options to retrieve the child if Mother failed to return her to the United States.

When reviewing this matter, the Superior Court reversed the lower court’s decision and permitted Mother to go to Ecuador with the child for her proposed three week trip.

The Superior Court first looked at what it means for a parent to have sole legal custody.  Legal custody is the right and ability to make major decisions for the child.  Sole legal custody is the granting of one parent exclusive and final right to make major decisions; indeed, specifically exclusive from the other parent.  The Superior Court ruled that the lower court, by allowing Father to block Mother’s trip to Ecuador, enabled him to undermine Mother’s sole legal custody, and, essentially, render it meaningless.  As a result, the Superior Court ruled that if a party has sole legal custody, the other parent cannot move to prevent it from being exercised but for a formal petition to modify the custodial arrangement.

In terms of the lower court’s reliance upon international treaties and the Hague Convention, it is notable that Father did not raise them at the hearing but the lower court took judicial notice of them.  Regardless, the Superior Court noted that it is not unusual for a court to take judicial notice of such things, so the lower court’s reliance upon them was not objectionable, at least in principle.  Instead, the Superior Court took issue with the fact that the lower court relied on that information after the hearing had concluded and without notice to the parties.  The Superior Court ruled that a party has the right to be heard as to the propriety of a court taking judicial notice of an issue, especially one as critical as international law.

Based on the above, the Superior Court reversed the lower court’s decision, ruling that sole legal custody cannot be undermined or otherwise disturbed without an order altering the custodial arrangement and a court taking judicial notice of an issue must indicate doing so on the record and allow the parties involved to address it.

Originally published in The Legal Intelligencer on March 16, 2015 and can be found here and reprinted in Volume 37, Issue No. 3, September 2015 edition of the “Pennsylvania Family Lawyer” (see here).