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Archive for the tag “estate”

The United Shapes of Arithmetic: Shape Reveal

Nathan Rudolph, my friend and fellow parishioner at St. John the Evangelist Anglican Church, has started a comic strip which I have greatly enjoyed and appreciated.  With his permission, I will repost them here after he posts them.  I think my readers will appreciate them as much as I do as they are rather insightful with a snarky edge.  Enjoy!

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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).

Redemption Available Immediately After a Sheriff’s Sale

In the recent matter of City of Philadelphia v. F.A. Realty Investors Corp., 95 A.3d 377 (Pa.Cmwlth.2014), the Court had the opportunity to tackle a matter of first impression when interpreting 53 P.S. Section 7293 with regard to when a property owner may redeem his property after a sheriff’s sale.

In F.A., the piece of real estate at issue (“the Property”) was subject to a tax delinquency which led to an order by the trial court to sell the Property at a sheriff’s sale in order to satisfy the aforesaid tax delinquency. Not long after the order was entered, the Property was sold at sheriff’s sale. Immediately after the sale, Defendant filed to redeem the Property, but its petition to do so was dismissed by the trial court.

According to 53 P.S. 7293, a property owner may redeem a property sold at sheriff’s sale “at any time within nine months from the date of the acknowledgment of the sheriff’s deed therefore, upon payment of the amount bid at such sale.” The City of Philadelphia argued that Defendant’s immediate action to redeem the Property was premature as it acted prior to the acknowledgment of the deed. The trial court agreed with the City’s interpretation and application of the statute when it dismissed Defendant’s petition.

When interpreting the statute cited above, the Court first noted that, per 1 Pa.C.S. Sections 1921 and 1922, and the cases decided thereunder, statutory construction ought not lead to an absurd result, and when there is ambiguity in the language of a statute, the court may look to the intent of the legislature to help provide interpretive guidance. The Court also explained that the redemption statute is to be liberally construed in order to effect justice, pointing out that the purpose of sheriffs’ sales is not to strip a property owner of his real estate, but simply to collect on municipal claims.

Defendant argued that making them wait until the sheriff’s deed is acknowledged would likely, and unjustly, lead to unnecessary additional fees, costs, taxes, and/or interest and, therefore, its prompt action could avoid these costs.

The Court observed that the applicable statute has at least two interpretations. The first being that the phrase “at any time” literally means at any time, without regard to when the acknowledgment occurs, as long as it is within the nine month time frame. The second interpretation begins the nine month period for redemption at the time of acknowledgment.

As the language is, in the Court’s view, ambiguous, it looked to legislative intent and, on that basis concluded that the legislature would not try and increase a property owner’s difficulty to redeem property. Indeed, a property owner may retain possession of a house sold at sheriff’s sale until the sale is completed by the acknowledgment and delivery of the deed obtained at the sale. As a result, the Court believed it would be an absurd result to disallow a property owner from redeeming his property while he is in possession of it simply because the deed had technically not been acknowledged.

Finally, Pennsylvania law prohibits the redemption of a vacant property after the date of acknowledgment. In light of the above, namely that absurd results are to be avoided and that the purpose of sheriffs’ sales is not to strip someone of his property but merely to ensure municipal claims are satisfied, it would seem that the City of Philadelphia’s arguments would disallow someone from redeeming a vacant property at all. In other words, if a property is vacant, an owner cannot redeem it after acknowledgment and, if the City’s interpretation of 53 P.S. 7293 is correct, he would not be able to redeem it before either, and this would be an absurd result, not to mention an unjust one, preventing an owner from redeeming his property.

So, in sum, in light of the above, and after review of the applicable statutes, the Court ruled that a property owner can redeem his property sold at sheriff’s sale at any time up to nine months after acknowledgment of the sale.

Originally published in Upon Further Review on June 7, 2017 and can be found here.

The United Shapes of Arithmetic: An American Flag

Nathan Rudolph, my friend and fellow parishioner at St. John the Evangelist Anglican Church, has started a comic strip which I have greatly enjoyed and appreciated.  With his permission, I will repost them here after he posts them.  I think my readers will appreciate them as much as I do as they are rather insightful with a snarky edge.  Enjoy!

Here are the links to the previously posted strips:

Here is the latest strip:

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Ali v. McClinton, PICS Case No. 17-0997 (E.D. Pa. June 14, 2017) McHugh, J.

My firm, the Law Office of Faye Riva Cohen, P.C., represents the Plaintiff in the case captioned as Ali v. McClinton, (ED PA, June 14, 2017).  On July 7, 2017 the Ali case was featured in The Legal Intelligencer and can be found here.

United Shapes of Arithmetic: Dog Abuse

Nathan Rudolph, my friend and fellow parishioner at St. John the Evangelist Anglican Church, has started a comic strip which I have greatly enjoyed and appreciated.  With his permission, I will repost them here after he posts them.  I think my readers will appreciate them as much as I do as they are rather insightful with a snarky edge.  Enjoy!

Here are the links to the previously posted strips:

Here is the latest strip:

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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).

Fired Legislative Staffer Can Move Ahead With Suit Alleging Use of State Funds To Promote Church Facility

My firm, the Law Office of Faye Riva Cohen, P.C., represents the Plaintiff in the case captioned as Ali v. McClinton, (ED PA, June 14, 2017).  The Ali case has been featured in an article entitled “Fired Legislative Staffer Can Move Ahead With Suit Alleging Use of State Funds to Promote Church Facility,” by Religion Clause on June 15, 2017, which can be found here.  You can also read it below:

“In Ali v. McClinton, (ED PA, June 14, 2017), a Pennsylvania federal district court refused to dismiss on 11th Amendment grounds a suit against a member of the Pennsylvania House of Representatives in her personal capacity. The court permitted fired constituent services staffer El Shafiyq Asad Ali to move ahead on his 1st Amendment Establishment Clause claim and one of his Pennsylvania Whistleblower Law claims.  Ali alleges that Rep. Joanna McClinton fired him after he objected to McClinton’s asking him to organize an event, to be paid for from state funds, at a Philadelphia Housing Authority site. The event was designed to promote a nearby facility that the Open Door Mission True Light Church planned to open.  Rep. McClinton is a minister at the Church.  The court however did dismiss Ali’s religious discrimination claims, certain of his Whistleblower Act claims and all of his “official capacity” claims against McClinton and the Pennsylvania House of Representatives.”

Law Office Video: Radio Segment #2/2

My law firm, the Law Office of Faye Riva Cohen, P.C., has established a YouTube channel which you can see here.

We are in the process of creating videos to upload to our new YouTube channel and hope to post a new video about once per month.

We hope our viewers can be edified by the information we convey.  Please contact us with your legal needs!

Here are the links to our previous videos:

Here is our latest video:

Law Office Video: Radio Segment #1/2

My law firm, the Law Office of Faye Riva Cohen, P.C., has established a YouTube channel which you can see here.

We are in the process of creating videos to upload to our new YouTube channel and hope to post a new video about once per month.

We hope our viewers can be edified by the information we convey.  Please contact us with your legal needs!

Here are the links to our previous videos:

Here is our latest video:

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