Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise

Although the so-called Wiseman standard, the standard by which shared custody arrangements were determined, stood for many years, the recent Pennsylvania Superior Court case of P.J.P. v. M.M., 2018 Pa. Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

In the matter of P.J.P., a custody case, the father appealed a decision in the trial court regarding his petition to modify a custody order that he believed was not sufficiently favorable for his custody goals.

The father and the mother are a divorced couple who obtained a child custody order in April 2016. This order granted the mother primary physical custody of the child. In January 2017, the father sought more custody, specifically shared physical custody, and filed a petition to modify.

At the trial, in August 2017, the court made many findings of facts that are directly relevant to its ultimate decision to deny granting shared custody to the father. For example, when the mother has custody she sends the father many photographs and videos and encourages the child to call the father. By contrast, the father does not want to call the mother during his custody times and sends no photographs and videos to the mother. The mother further claimed, and the father admitted, that he has insulted the mother in the presence of the child. He also admitted to telling the child to be sure to look up the instant case on Google Scholar when he is older to know what happened during the case. The mother is also conscientious in ensuring that the father has nice gifts from the child for holidays and such, while the father makes only modest efforts to reciprocate. The parties also had disagreements over the procedure and process for dropping the child off at preschool in the morning. The mother claimed the father refused to get the child ready and just dropped him off at her house, while the father claimed the mother “unilaterally” changed the procedure. Co-parenting counseling was also attempted by the parties. Unfortunately, while the mother was trying to fully invest herself in said counseling, The father refused to meaningfully participate, and the counselor believed the counseling was “not going anywhere.” Of course, the father has a different interpretation of much of the above, but the court made its findings, which favored the mother, after a complete review of the facts, testimony and evidence.

On appeal, the father challenged the denial of shared custody, arguing it was contrary to the best interests of the child. The Superior Court first noted that the trial court made certain credibility determinations that were within its discretion. The court then mentioned that child custody is governed by 23 Pa.C.S.A. Section 5328, which lays out 16  factors for the court to consider when making a custody determination. Superior Court observed that the trial court analyzed each factor and noted that most were either inapplicable or weighed equally for both; however, there were four factors (namely the likelihood to encourage and permit contact with the other party, availability of extended family, attempts to turn the child against the other parent, and the level of conflict and willingness to cooperate with the other party) which weighed heavily on the mother’s side. No factor weighed heavily on the father’s side.

The father argued that the trial court abused its discretion by failing to apply the Weisman standard. In Weisman v. Wall, 718 A.2d 844 (Pa. Super.1998), the court ruled that courts must make four findings when ruling on shared custody “both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; both parents must evidence a continuing desire for active involvement in the child’s life; both parents must be recognized by the child as a source of security and love; a minimal degree of cooperation between the parents must be possible.” The father further argued that since he and the mother, in his view, meet the above four factors, shared custody should be awarded.

Superior Court ruled that the father’s reliance on Weisman is misplaced. As noted above, Weisman was decided in 1998 while Section 5328 became law in 2011. The court does not believe the difference between Weisman and Section 5328 is trivial. Specifically Weisman “required the court, before awarding shared custody, ‘to make at least a minimal finding that the parties were able to cooperate before awarding shared custody” while, under Section 5328, the court “must determine the best interest of the child by considering all relevant factors, including but not limited to, ‘the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.”’

Superior Court noted that the plain language of Section 5328 contradicts Weisman. Unlike Weisman, the court is not obliged to make any specific findings before awarding shared custody. Instead, the court must consider all 16 of the relevant factors, and poor cooperation need not be dispositive. In sum, therefore, Superior Court specifically described Weisman as obsolete.

Finally, the court explained that its citing to Weisman in the recent case of R.S. v. T.T., 1133 A.3d 1254 (Pa.Super.2015) does not belie the above analysis. In R.S., the court used the Weisman factors to supplement its own analysis where it seemed Section 5328 did not appear to lead to a reasonable conclusion in light of the available evidence. Moreover, the court in R.S. never once said trial courts “must” make Weisman findings. Instead, Weismanmerely holds persuasive value as the its factors have been assimilated into Section 5328.

Upon full review of the decision, it appears that P.J.P. has hammered the final nail into the casket of the Weisman analysis. Weisman, for all intents and purposes, no longer appears to be the law for Pennsylvania child custody.

Originally published in The Legal Intelligencer on July 5, 2018 and can be seen here and reprinted in the Pennsylvania Family Lawyer in September 2018 and can be seen here.

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Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here and was reprinted in the Pennsylvania Family Lawyer for its March 2018 edition. (see here).

A Collection of Family Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of family law issues and legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

• Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise
• Death, Divorce, and the Division of Property and Estates
• Enforcing Marital Agreements According to the Law of the Case
• Dependent on Child Support in Dependency
• Considering Retirement While Paying Child Support
• Stepparents Stepping Up to Pay Child Support
• What Constitutes Mitigation of a Decrease in Earnings for Child Support?
• When Marriages and Relationships Go Bankrupt
• Doggone It! Court Cannot Condone Canine Custody
• Court Considers New Spouse’s Income to Determine Child Support Obligation
• Superior Court Allows Child Support Deviation for Inheritance
• Disability Benefits in a Divorce
• Sole Legal Custody Means Solo Decision-Making
• Justices Clarify Evidentiary Standard for Child Abuse Registry
• Christian Bible or Nothing, Philadelphia Family Court Says
• Court Teaches School a Lesson On Residences and Buses
• Superior Court Makes Child Abuse Evidentiary Standard Clearer
• Gifts, Loans, and Child Support
• Dying to Get Divorced
• Superior Court Rules Custody Is Permanently Modifiable
• A Primary Custodian Support Obligor
• Does a Child-Support Obligation Terminate at Death?
• Can a Parent Bargain Away Child Support?
• Frozen Embryos Thawed Despite Ex-Husband’s Opposition
• I Now Pronounce You Never Married
• Emancipation’s Impact on Child Support
• Caretaking Does Not Equate to Custody
• Money for Injuries During Marriage Are Divisible After Marriage
• Permanent Legal Custody Does Not Necessarily Mean ‘Permanent’
• Application of Relocation
• New Statute Modifies Pennsylvania Child Custody Orders
• The Pros and Cons of a Cut-Rate Divorce
• Absolute Paternity Presumption Estopped
• Substantial Evidence Must Convince Court in Child Abuse Cases
• Child Custody Litigation and Settlements: Leading Lawyers on Establishing Successful Co-Parenting Arrangements and Educating Clients on the Trial Process
• Adopting the New Amendments Regarding Post-Adoption Contact
• “Proceeding” to Relocate Under the New Custody Law
• Divorce, Dead Men, and ERISA
• Do Non-Parents Have Custodial Rights Over a Child?
• Till Death Does Your Stuff Part
• Alternative Pleading in a Divorce Action? Not so Fast!
• I Now [Cannot] Pronounce You Man and Wife

Musings:

• NBI Seminar: Child Custody and Visitation Rights: Termination of Parental Rights
• NBI Seminar: Child Custody and Visitation Rights: Questions of Paternity
• NBI Seminar: Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation
• NBI Seminar: Child Custody and Visitation Rights: A Petition for Visitation and/or Custody
• NBI SEMINAR MATERIALS: Advanced Family Law Roundup
• NBI SEMINAR MATERIALS: Effectively Arguing Contempt Issues
• NBI SEMINAR MATERIALS: Ethics
• NBI SEMINAR MATERIALS: Advanced Child and Spousal Support Issues
• Prom-mania!!
• Poly-parenting: on the Horizon
• Parental Kidnapping
• You Gotta Get Rid of That!
• Getting Closer to the White Whale
• Don’t be Afraid to Break Up Before Marriage!
• J.’s alimony law gets an update after Christie signs bill
• At the Service of the Clerk and Local Custom
• Keeping things Separate During Separation
• Legal Bigamy
• Technical Answers
• Child Support: Based on Income Not Expenses
• Green Marriage
• Reproductive Choice in Modern America: It’s all on Women
• A New Marriage Proposal
• Backlog injustice
• Happy Adoptions
• Showing Entitlement in Order to Receive Alimony Pendente Lite
• What’s In a Name?
• Custody Orders Cannot Resolve Everything

Enforcing Marital Agreements According to the Law of the Case

In the matter of Bienert v. Bienert, 2017 Pa.Super. 255, Case No. 17-1288 (Pa. Super. Aug. 7, 2017), the Superior Court of Pennsylvania has clarified the enforceability of marital property agreements (MSA) executed prior to the filing of a divorce but entered into while the husband and wife were separated.

As mentioned above, while the MSA was executed by the parties while they were separated, it contained rather precise language as to how their marital property is to be divided in the event of a divorce. Specifically, the MSA indicates that it “settles all rights of the parties” and, indeed, “is not contingent upon either party of both parties being granted a divorce,” but would be “made part thereof” in the event of a divorce.

After the husband filed for divorce, the wife filed a petition for alimony pendene lite and was represented by counsel when she did so. The husband opposed the aforesaid petition, arguing that the MSA was a complete and final settlement of all obligations and, as it does not allow for alimony pendente lite, the wife should not be allowed to collect it. In response, the wife argued that as the MSA does not specifically refer to alimony pendente lite, she is able to collect it. Notably, the wife did not argue that the MSA was invalid for any reason, she merely advanced an interpretation of its language. Ultimately the trial court denied the wife’s petition on the basis that the MSA is a complete and final settlement of all claims, including alimony pendente lite and no provision allowed for its collection. The trial court pointed out that “absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.”

After failing to receive alimony pendente lite, the wife’s attorney withdrew his appearance on her behalf, which led to the wife filing multiple petitions to enforce the MSA regarding various provisions of property division. The Superior Court observed that all of the wife’s various petitions “were premised on the view that the Agreement was valid and enforceable.”

Separately, the husband eventually filed a petition to hold the wife in contempt for violating the terms of the MSA. In response to the husband’s petition, the wife raised defenses claiming that she executed the MSA under duress as the husband requested the wife to execute the MSA immediately after the wife had been sentenced in court for three felonies and charged with a misdemeanor and was “in rehab.” This was the wife’s first mention of duress, despite her efforts to enforce the MSA previously as described above. Indeed, even when arguing duress, she made no argument that the MSA was invalid. A short time after the husband’s filing of the contempt petition, and the wife’s filing of defenses, as described above, the wife filed a contempt petition asking for the enforcement of the MSA.

At the hearing for the above petitions, the wife raised arguments to avoid the terms of the MSA on the grounds of mistake, misrepresentation or duress. She now further claimed that she did not know the MSA applied to her divorce, allegedly believing it only applied to her separation. The trial court ruled against the wife. Thereafter, the wife hired a new attorney who filed a new petition to void the MSA for the reasons set forth above. The court subsequently denied the wife’s petition and went ahead and entered a decree in divorce. In response, the wife appealed, which led to the opinion described herein by Superior Court.

On appeal, the wife again argued that she executed the MSA against her will and that a mutual mistake of fact existed, both of which warrant the voiding of the MSA. Furthermore, as an aisde, the trial court did not hold an evidentiary hearing on her last petition which, the wife argued, was unfair as it did not give her a full opportunity to litigate her economic claims. Superior Court affirmed the trial court. In ruling against the wife, Superior Court relied on the law of the case doctrine and equitable estoppel.

The law of the case doctrine is one that “expresses the practice of courts generally to refuse to reopen what has been decided … in order to protect the settled expectations of the parties; to ensure uniformity of decisions; to maintain consistency during the course of a single case; to effectuate the proper and streamlined administration of justice; and to bring litigation to an end.” In addition, the doctrine applies, for the most part, specifically with respect to a court adhering to prior decisions within the same case. In other words, although multiple petitions may be filed in a given case, they are essentially cumulative and are not evaluated in isolation from the rest of the case. While the doctrine does not disallow a court from reconsidering prior decisions within case, it is certainly within its appropriate discretion to refuse to do so in order to maintain consistency and uniformity.

Equitable estoppel functions very similarly to the law of the case doctrine. Pursuant to estoppel, “a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained.”

In applying the principles above, the court noted that the wife has taken inconsistent positions regarding the MSA throughout the litigation of the divorce matter. Sometimes she sought enforcement of it and, indeed, did so successfully at times. Other times she filed for husband’s alleged contempt of it. Still, at other times, she argued it should be void or unenforceable or was the result of mistake or duress. The case was litigated for a year and a half before the wife began questioning the validity of the MSA despite the fact that multiple other petitions were filed and argued assuming its validity. As she attempted to enforce the MSA, without questioning its validity, and the court ruled on the same, she cannot now, suddenly and late in the litigation, change course and argue that the MAS is somehow unenforceable. Not only have prior court rulings been made on the good faith of the wife’s arguments, her suddenly raising directly inconsistent arguments undermines the legitimacy of her prior arguments and the rulings thereon. Furthermore, it puts the husband into an untenable position of committing to arguments against the wife that he may not have advanced in light of the wife’s sudden reversal. It was clear the wife raised her new arguments due to her lack of success with her prior arguments.

Ultimately, then, it is vitally important for litigants and practitioners to settle on a theory of a case and adhere to it throughout as, otherwise, the court, and certainly the other party, will take notice of a party raising inconsistent and mutually exclusive arguments later in the litigation of a case as compared to its beginning. Obviously while new information is typically learned and discovered during litigation which can legitimately result in modifying one’s arguments, the position or posture of a party to an essential and known element of case, say the enforceability of a marital agreement, is something that needs to be established early on, and there is limited ability to change or reverse course once a party commits to one.

Originally published on October 3, 2017 in The Legal Intelligencer and can be found here and reprinted in the Pennsylvania Family Lawyer for its October 2017 edition (Volume 39, No. 3) (see here).

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 and reprinted in the Pennsylvania Family Lawyer for its October 2017 edition (Volume 39, No. 3) (see here).

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).