Pennsylvania Family Law

PARENTAL ALIENATION: PROGRAMS SEEK SOLUTIONS TO PARENT/CHILD DISCORD

Aaron Weems — Mon, 08 Feb 2010 12:39:04 -0500

Parental alienation is one of the most common, and most difficult to prove, complaints a family law attorney gets from a client.

Clients often, and not without justification, allege that the other party is actively trying to interfere and undermine their relationship with their child. The sad part is that while they are often right in their assessment of the other parent's action, proving alienation in court- usually in the context of contempt of a custody order- is difficult from the very basic standpoint of testimony. The parent alleging alienation will cite examples of behavior, comments, overt acts, subtle innuendo - all kinds of things that illustrate the purposeful action of the other parent to damage the parent/child relationship. The defense? "She's lying. I didn't do any of those things."

Generally, alienation cases are infrequently brought because of the difficulty in proving them. Practically speaking, what can a judge really do to punish the other party? Attorney's fees? A change in custody schedule? Jail? Unfortunately, even a well-crafted Court Order cannot prevent a stubborn parent from shooting off their mouth about the other parent in front of their child.

Recently, however, we have begun to notice some efforts to deal with parental alienation. Notably, the Overcoming Barriers Family Camp, operated by President Peggie Ward, PhD. Dr. Ward is a psychologist and Co-Founder of the Co-Parenting Assessment Center in Natick, Massachusetts and helped create Overcoming Barriers as a way to "help children and families where one or more children are in danger of losing a relationship (or have lost a relationship) with one of his/her parents." Initial reports have been positive and it will interesting to see whether this program spawns similar programs through out the country. You can find more information on Overcoming Barriers at http://www.overcomingbarriers.org/.

These programs are not without their detractors or controversy. The Leadership Council on Child Abuse and Interpersonal Violence has been critical of organizations such as the Rachel Foundation for Family Reintegration located in Kerrville, Texas. A February 2, 2009 news release on their position can be found at: http://www.leadershipcouncil.org/1/med/%20pr2_09.html. The Rachel Foundation strives to overcome, among other forms of abuse, the "abduction of the mind" which may occur in "high-conflict divorce." The Leadership Council, however, found that some of the "therapeutic" techniques skewed toward "brainwashing" and found them overly coercive.

Despite criticism, controversy, or praise, these programs attempt to address a need which is difficult to confront within the confines of the judicial process. I will be curious to see the data and information developed by Overcoming Barriers. If it can continue to replicate the initial success it has experienced thus far, I would not be surprised to see similar programs develop across the country and become instruments utilized by the Courts.

GAY EQUALITY IN CUSTODY CASES CONFIRMED AS PENNSYLVANIA LAW

Mark Ashton — Mon, 08 Feb 2010 12:03:18 -0500

Over the course of the past generation, our society has begun to recognize that sexual orientation has nothing to do with a person’s merit as a worker, a parent, or a human being, in general. It is an orientation rather than an aberration, yet our courts do not have the power to create cases or to promulgate laws based on their perception of need for change. Law is developed from the cases or controversies involving real people with existing legal issues.

So it is that as recently as 1985 the Superior Court ruled that a parent’s homosexual relationship reflected a “moral deficiency” that a Court must consider as an adverse factor in a custody case. That case, Constant A. v. Paul C.A., (496 A.2d 1 (Pa. Super. Ct. 1985) stood unchallenged for twenty-five years until a recent decision by the Superior Court. The facts of the case are as follows:

In 2006 a mother informed her husband that she was involved in a same sex relationship with another woman. The mother filed for divorce and shared custody in Dauphin County. Her husband replied by filing for primary custody of the child. A judge heard the case and ordered a shared custody arrangement for 18 months after which the child would live primarily in the custody of the father. The mother waited out the 18 month transition period and then filed for modification asking for preservation of the status quo. The mother also presented expert testimony that the shared physical arrangement was working. When the trial court rejected the modification request and relied upon the 1985 Constant A. v. Paul C.A. decision considering a same sex relationship as a “negative”, the Mother appealed.

In deciding this case, known as M.A.T. v. G.S.T, the Superior Court heard this case en banc. Ordinarily appeals are heard by panels of three appellate judges. Only in compelling cases (as decided by the Superior Court) are matters heard by panels of nine judges. The premise is that the Court wants the legal community and the public at large to understand that it is intent upon establishing lasting precedent.

The trial court’s opinion in M.A.T. v. G.S.T., it should be noted, found both parents to be fit and interested. It also noted, however, that the Mother did not overcome the principle that a same sex relationship must be harmful to the best interests of the child.

The Superior Court ruled that this doctrine no longer squared with Supreme Court rulings that each custody cases must be decided upon its facts and that each parent has the same burden of showing what is in a child’s best interest. Language that dismissed same sex relationships as “illicit” was dismissed as antiquated. The Court also recited language from its own 1982 decision in Custody of Temos where the Court noted that prejudice against interracial relationships had no place in a custody determination. There as here, the decision in a custody case must turn upon parenting quality in contrast to public perception of whether a particular environment was normal or accepted.

The decision in MAT v. GST was published on January 21. Any appeal to the Supreme Court must be filed within thirty days.

IT'S THE MOST WONDERFUL TIME OF THE YEAR (OR NOT):

Julie Ganz — Thu, 21 Jan 2010 13:41:08 -0500

It is that time of year again: Tax Season. If you have not already, shortly you will start to receive your 1099’s, W-2’s and other financial documents needed to prepare your tax returns.

But this year, more so than in prior years, you may benefit from reviewing not only your basic tax forms, but other financial data as well.

The American Recovery and Reinvestment Act of 2009 created a number of tax credits and deductions for individuals that should be kept in mind when preparing your returns. For example, you have probably heard that first time home buyers are eligible for a tax credit. But don’t forget that home buyers who are replacing a principal residence in which they lived for five out of the last eight years are also eligible for a credit. It is also worth reviewing the definition of “first time homebuyer” since your prior homeownership may not disqualify you from claiming this tax credit for your recent home purchase.

You may not have qualified for the “Cash For Clunkers” program, but if you purchased a new car in 2009, you may qualify for a deduction.

For more specific information, it is worth visiting the IRS’s site at http://www.irs.gov/newsroom/article/0,,id=204335,00.html

For some creative thinking on the topic, I would suggest Katie Adams’ column at http://www.msnbc.msn.com/id/34848380/ns/business-personal_finance/

Obviously, you should review all of your deductions and credits with a tax professional, but as we approach that most wonderful time of the year (do you sense my sarcasm?), it would be a shame to overlook the new credits and deductions.

CHANGES WITH CHIP UNDER NEW FEDERAL HEALTH CARE LEGISLATION

Aaron Weems — Thu, 21 Jan 2010 11:45:56 -0500

According to statistics available through CHIP, there are 197,150 people enrolled in CHIP in Pennsylvania. CHIP in Pennsylvania is available to all uninsured children and teens up to 19 years of age, who do not qualify for Medical Assistance. Due to CHIP’s eligibility requirements – which has no income limit for eligibility – it is often a viable option for people from a diverse range of economic backgrounds. Many times the cost of medical insurance through employment for a child support “obligor” is cost-prohibitive to the payor, while the payee receives less support due to the credit given by the Pennsylvania Support Guidelines to the paying parent. By minimizing both parties’ exposure to medical costs, so long as they are eligible for the benefit, CHIP has the effect of extending medical coverage over children, while possibly eliminating unreimbursed medical expenses to the parties.

CHIP, however, has recently made the news due to its consideration within the new Federal health care legislation. CHIP exists as both a state and federal program, with Pennsylvania enacting CHIP in 1992, and a Federal version being signed into law by President Bill Clinton in 1997. Both the U.S. House of Representatives and the Senate have two different ideas as to how to deal with CHIP within the Federal health care systems.

First, the Senate version of the health care legislation proposes extending federal financing through 2015 (it is currently set to expire in 2013). This amendment, advocated by Senators Bob Casey (D-PA) – whose father, Governor Robert P. Casey, originally signed Pennsylvania’s CHIP legislation into law – and John D. Rockefeller, IV (D-WV) would effectively keep the current version of CHIP in place, allowing for some changes in income eligibility.

The House, on the other hand, advocates eliminating CHIP altogether and funneling participants into Medicaid, the federal-state insurance program for the poor, or to one of the health insurance exchanges whereby medical insurance would be purchased at a reduced cost with government subsidies offsetting the cost.

An excellent summary of the two bills was written by David M. Herszenhorn for a New York Times health policy blog: (http://prescriptions.blogs.nytimes.com/2010/01/03/program-for-children-has-uncertain-future/)

Currently, CHIP eligibility and cost is determined by income and the number of children. http://www.chipcoverspakids.com/assets/media/pdf/2009_income_guidelines.pdf There is no income limit to qualify for CHIP, though income will effect amount of subsidy a child is eligible to receive, while under the proposed legislation, eligibility for the Medicaid option in the Senate plan would include up to 133% of the federal poverty line, while the House bill would be up to 150% of the poverty level.

The outcome of the Federal health care legislation will determine the future of CHIP in Pennsylvania and will be closely monitored in the coming weeks.

THE NEW GUIDELINES HAVE ARRIVED

Mark Ashton — Wed, 20 Jan 2010 15:44:35 -0500

Much as with a presidential election, the Pennsylvania support guidelines are to be revised by the Pennsylvania Supreme Court once each four years. Drafts of proposed changes to the guidelines were published in July and December, 2008. In each instance comment from the legal community and public was invited. But for more than a year now we have been left to wonder how the guideline changes would look once finally completed.

The task was concluded on January 12 of this year when The Supreme Court issued Order 519 amending the guidelines effective May 12, 2010. Until that date the existing Rules prevail but since the changes in the guidelines are themselves a change in circumstance, any order issued between now and May 12 is subject to further amendment at that time. So, for practical purposes the guidelines are here today.

The major changes have to do with child support for households with combined net incomes exceeding $20,000 a month. Under the last set of guidelines any case where income exceeded $20,000 was to be decided based upon proven expenses under a 1984 case, Melzer v. Witsberger. The data and calculations required to do a complete Melzer analysis were complicated and often produced wildly varying results from case to case and judge to judge. So a decision has been made to take the guideline grids to $30,000 a month. Where income is higher than $30,000 a formula is provided from which a presumptive amount of support may be calculated.

There are changes in the guidelines themselves although our initial review of those changes do not portend much radical change. Here are some samples:

COMBINED NET

1 2 children

10,000 1390 (old) 1840 (old)

1385 (new) 1965 (new)

15,000 1741 (old) 2253 (old)

1782 (new) 2319 (new)

20,000 2301 (old) 2877 (old)

2144 (new) 3018 (new)

25,000 Melzer analysis required (old)

2443 (new) 3389 (new)

30,000 Melzer analysis required (old)

2756 3777 (new)

Many members of the bar are critical of what they see as an inherent stinginess in these guideline amounts. In each instance, where combined net income triples from $10,000 to $30,000 a month, the amount of child support essentially doubles even though the parents presumably have much more free money (beyond their own core needs) to contribute to child support.

In cases where the income exceeds $30,000 per month net, formulae are employed to calculate the support amount. Where one child is involved the support will increase by 6.5 cents for each dollar of income beyond the $30,000. In the case of two children the support increases by 8 cents for each dollar over the $30,000 threshold. So, if combined net was an astronomical $50,000 per month, two children would warrant a monthly award of $5,377. One child would warrant $4,056.

Another significant area of change is in the area of shared custody. Historically, to qualify for a discount from the standard guideline amount premised upon significant custodial time spent by the child(ren) with the non-primary parent, that parent had to have custody for 40% of the year or 146 nights. Reaching that threshold entitled the parent to a discount upon his share of the support amount by 10 basis points. Thus, if Father had the child 146 nights and earned 60% of the combined net income of both parents, his percentage obligation would be reduced by 10 basis points from 60% to 50%.

The new regime assumes that a parent who does not have primary custody still has the child 30% of the time or 109 nights. If that parent has less than that amount, support may be adjusted upward on the theory that the non-custodial parent is not paying his/her share. This concept did not make it into the rule itself; only the commentary to the rule so that the issue needs to be raised before the Court and argued. As before, once the 40% custody level is attained there is a 10 basis point reduction. At 50% it is a 20 basis point reduction. So if the non custodial parent has 78% of the net income, the support will be 58% and not 78%. The new rules now state clearly that under no circumstances shall support of any kind be awarded to a spouse where the result would have the payee with more income than the payor. The commentary states that Courts are to be less concerned about who has the child overnight and more focused upon what child expenses each parent is contributing.

Where each parent has primary custody of one or more children it has now been clarified that in calculating the support amounts the Court does not include the child support due to a parent as part of his income when doing the calculation for the other child or children. It is only that parent’s net income before any child support award that it utilized.

In a rare case of the Rule of Civil Procedure reversing case precedent, the new rules state that mortgage adjustments in the amount of support for high mortgage cases shall only apply in cases where the parties are not yet divorced.

There are changes to the amount of spousal support and alimony pendent elite (pre divorce alimony) that warrant attention as well where the income of the couple exceeds $30,000 a month net. In those cases, the commentary directs trial courts to apply the governing formula (30-40% of the difference in incomes depending upon whether there are minor children subject to support payments) but adds that the grounds to deviate from the guidelines recited in Rule 1910.16-5 as well and make a record of whether deviation was warranted. To that end the commentary states that income and expense statements are to be filed in these cases so that the record may be developed.

There are also smaller changes worth mentioning. In low income cases, the amount of income a person must have to support him or herself before a child support order may be entered has been raised. Orders must be tailored so that any obligor retains $867 a month to support him or herself.

The use of earning capacity data (e.g., Dept. of Labor earnings reports) to calculate support orders is being discouraged. The use of this data is relevant only when the Court finds that the obligor has willfully failed to secure employment consistent with abilities and that finding must be on the record. And earning capacity is to be based on a single full time job rather than some hypothetical construct of how and when a person could work. The rule does not go so far as to exclude over-time or second job income from consideration in making an award where that income is actually paid. Whether this means that a litigant could decline additional hours or quit a second job and use that as a basis to seek a reduction in an order premised upon historical over-time or supplemental employment is not really clear.

The guidelines themselves are appended to this summary with the following link:

http://www.aopc.org/OpPosting/Supreme/out/519civ.attach.pdf rules

A new day begins…

TIGERGATE +/- JON & KATE + 8

Elizabeth Silvia Wood — Mon, 04 Jan 2010 10:06:58 -0500

A couple of weeks ago we were asked by one media outlet to comment upon the Gosselin divorce. While this certainly was a “media opportunity” the plain truth is that there was not a great deal to say that would have been newsworthy.

The Gosselins were a phenomenon created by the media. While their family situation was most unusual, they were not unique nor newsworthy but for the fact that they had so many children and that got them a television show. In the end, their notoriety made them somewhat wealthy and newsworthy but there was no true staying power to the story. One has to wonder whether their marriage would have survived had they been the same people they started out as; a young couple with a large family struggling to make it all work. Ten years from now, they will be a trivia question and little more.

The Woods situation is quite different. It is clear to anyone who can read a newspaper or click onto “The Golf Channel” that Mr. Woods changed the sport in a way much as Arnold Palmer did in the late 1950s and early 1960s. He is the face of the sport. But fame comes at a price and brings with it many complications far beyond the ken of the young people upon whom the fame is bestowed.

We have no real familiarity with the situation but Mr. Woods was “built” from birth to become a world class golfer. And in that aspect, he succeeded admirably. But we commend to you a careful reading of Andre Agassi’s autobiography “Open”. It describes a childhood not unlike that experienced by children who worked in coal mines in the early 20^th century. Yes, Mr. Agassi was hitting tennis balls in exclusive clubs throughout his childhood but after one has hit 1,000 serves during the course of a weekend of practice, is the result any more enjoyable than separating bituminous from anthracite coal on a conveyor belt? Woods has not yet written his story and chances are it will be some time before he does but we suspect that while most of us were at proms and hanging out during high school at the neighbor’s pool, Mr. Woods was devoting his time to safely exiting sandtraps and pot bunkers. Having devoted his childhood and the first decade of his adult life almost exclusively to golf, it is little wonder that he may have been tempted to indulge in other sports.

From a divorce side, the fascination for us is in the “issue” of brand value. We are told that Mr. Woods has earned more than $1 billion dollars in his relatively short career. But the brand produced as much as $100 million dollars a year in revenue and until a month ago that brand seemed to have no foreseeable end. Thus, it made perfect sense for him to renegotiate with his wife what was a $20 million payout after ten years (the couple has been married for five) and “up” the payments to $80 million if it would buy silence and peace for the “Woods brand” This revelation however, only caused the number of sexual claimants to multiply. If Ms. Wood’s can quadruple her “take” in exchange for her silence, why can’t every woman who kissed, slept or claims to have had a relationship with Mr. Woods sign on for some kind of remuneration or a moment of fame. In a word, the levee broke and we now have an entire coterie of women claiming that they were involved in some way or another.

The reason why Mr. Woods could earn $100 million a year was because he was not only a fabulous golfer but was perceived to be squeaky clean. John Daley could win the grand slam and four other majors and never hope to equal that kind of income. So, if guilty, it is only fair that the endorsements depart and Mr. Wood’s will have to resort to a journeyman’s income of $20-30 million. But what is sad, and often lost in this the race to “the truth” is that two young people with small children are caught in a maelstrom of controversy that only hurts them and their offspring. Their advisers are largely “friends” who feel badly for her and who live from the income that his huge prestige has provided. Most of us will never know what that kind of wealth and notoriety bring. But they come with a price and that is the complete loss of privacy not only for one’s self but for family as well. And while we often find ourselves coveting the wealth and notoriety of others, realize as well that these blessings come at a price that is almost as great as the benefits they bestow.

There is also very real contrast to be drawn. The media made the Gosselins and, we can speculate, by making them famous, they planted the seeds of marital destruction. It may have happened in any event but, as with the Woods family, fame and wealth created temptations. But Mr. Woods’ talent will afford him the capacity to make many millions more. The Gosselins are famous by circumstance and the television show that made them famous was among the first to reject them when their fantasy world crumbled. We all aspire to be rich and famous but, as they approach this season of thanksgiving we suspect that wealth and fame are not being celebrated in two households that started 2009 as our vision of ultimate success stories.

COUNSEL FEES

Mark Ashton — Wed, 04 Nov 2009 14:37:00 -0500

We are involved in a relatively simple case. Wife is a homemaker only recently returned to work. Husband is a mortgage broker. Like many couples they became a bit over committed in the real estate market of the last few years. They wanted to participate in the real estate gains of the last few years and some of their investments had not panned out. This is a classic work out settlement of the type we see with increasing frequency. The smart move is to realize the problem and negotiate a settlement that preserves assets.

We have been litigating this case for the past 18 months. In our judgment almost all of the litigation was not only unnecessary, but detrimental to preservation of the marital estate. We entreated our opponents that more litigation was the last thing the parties needed. Still the other side insisted that the battles go on. We fought over support for a full day in a world where the incomes of both parties were either agreed upon or plain from the information provided by the employers.

Next we received a counsel fee petition. The dependent spouse owed her counsel tens of thousands of dollars even after securing a substantial retainer. We resisted this request vigorously arguing that the facts were apparent from the beginning and the litigation almost completely unnecessary. When the request for attorneys fees did not go in the direction she aspired, the opposing counsel filed a petition to withdraw.

The wife filed an answer professing that she had wanted to settle her case all along but that her attorney had told her the litigation was necessary and that her husband would be required to pay her attorneys fees.

We don’t know whether these allegations are true. But we can state almost without exception, that if an attorney tells a client in a domestic relations proceeding that he or she is certain to secure attorney fees in that proceeding, a second opinion should be secured. Even in cases where there is a contractual undertaking for a party breaching an agreement to pay attorneys fees, we have found that courts award such fees on a very conservative basis. And in situations where attorneys fees are sought by reason of statutory allowance (i.e., the law expressly allows award of attorneys fees) such awards are usually a fraction of what is sought.

When can one ask for attorneys fees? Absent an agreement, attorney awards require a statutory basis. Such awards are referenced in the divorce law. 23 Pa.C.S. 3702. Where there is a battle over custody jurisdiction, the statutes provides that counsel fees shall be awarded unless there is a finding that such an award is inappropriate. 23 Pa. C.S. 5452. In support cases Courts “may” award attorneys fees either to the oblige (the person securing support) or that person’s attorney. 23 Pa.C.S 4351 but a subsequent case interprets the statute to mean that the awards should not be a regular part of support proceedings but limited top extraordinary situations. Contempt of any kind of a divorce or alimony order invites a claim for counsel fees. 23 Pa. C.S. 3503(e)(7) and 3703(7). But this does not appear to be the case in a custody ( See Pa. R.C.P. 1915.12) or support case (See Pa. R.C.P. 1910.25)

The statutes and rules say one thing, but courts remain chary of such awards.

CUSTODY EVALUATIONS

Mark Ashton — Wed, 21 Oct 2009 16:33:41 -0500

Whenever there is a deep-seated dispute concerning which parent, if either, should have primary physical custody of a child, a question commonly asked is whether the Court should have the benefit of a formal custody evaluation. These studies, most often undertaken by psychologists, attempt to evaluate the relative parenting skills of the parents and seek to measure those skills against the perceived needs of the subject child. The rules of civil procedure authorize courts to order such studies either by agreement or the request of one party. Technically, because these studies involve expert opinions, each party is entitled to his or her own expert. But Courts actively discourage this not only because the evaluations are expensive (typically $5000-7500) but because experts separately hired by each parent tend to be viewed as “hired guns” for their employers. The vast majority of such studies are jointly undertaken by neutral evaluators who is tasked to identify what custody arrangement would be in the best interests of the child involved.

The typical evaluation follows a fairly routine protocol. Most evaluating psychologists send each parent a packet of information intended to secure a history of the individuals, their families of origin (i.e., their parents), the relationship that gave birth to the child and what has transpired since that relationship dissolved. They will commonly ask for collateral contacts who can verify the accuracy of the information submitted. If either parent is already involved with a mental health professional, the evaluator will typically ask permission to discuss the matter with the treating professional (e.g., psychologist, psychiatrist, counselor or social worker). Having secured this information the next step is ordinarily a face to face interview with each parent conduct without the other parent present. At some point in the process many psychologists want to see the dynamics of both parents together in the same room. Some like to observe this early in the evaluation; others make it a last step before completing their reports.

Except in instances where the child is too young to effectively communicate, most evaluators want to separately interview each child involved. They may also want to see the child interact with each of his or her parents either in the evaluators office or in the home where that the parent and child occupy. The children are often tested using tests directly intended to help the evaluator determine which parent the child is more closely bonded with.

Parents are also commonly tested using devises like the much joked about Rorschach ink blot test and the MMPI (566 yes/no questions that seem pretty bizarre when you read them). These tests are intended to assess whether either parent has a diagnosable mental condition.

So what comes out of all this. In the vast majority of cases, not much beyond a lengthy written report. First, most people don’t have a diagnosable mental disorder and in many situations we read that much of the supposed aberrant behavior is attributed to a kind of “divorce syndrome.” The stress of separation and custody litigation does often cloud judgment and create reactive parenting. Second, even people who have mild disorders can still be very effective parents. Beyond the testing, many judicial officers don’t find the reports very helpful, especially as children grow to be old enough to articulate their own views. But despite these limitations clients and many attorneys continue to believe that these reports can “win” the case and Courts are inclined to permit evaluations to go forward often because there is hope that a custody evaluation will provide a springboard to case settlement.

NOT SO FAST

Mark Ashton — Thu, 01 Oct 2009 12:45:53 -0500

The Wall Street Journal edition for August 22, 2009 features a fine article by John Freeman which the author describes as a “manifesto for slow communication.” What made it all the more real was the experience of the past two days. The most memorable moments of that period were: (1) a colleague telling me that a client’s effort to start a new business was gravely set back by an errant “reply to all email” and (2) the experience of watching a family of six sit down to a Saturday night dinner in a local restaurant whereupon half the family immediately reached for their hand held devices.

I defer to Mr. Freeman:

“The ultimate form of progress… is learning to decide what is working and what is not; and working at this pace, emailing at this frantic rate is pleasing very few of us. It is encroaching on part of our lives that should be separate or sacred; altering our minds and our ability to know our world…”

While acknowledging that this new technology has its merit Freeman notes that for the first time since the Industrial Revolution the concept of time “away” from work has begun to steadily erode. In our new search to remain connected he notes that we now endure flotillas of unnecessary jabbering that makes it difficult to distinguish “signal from noise”.

The new phenomenon we experience today is what I will term “drive by lawyering.” With increasing frequency clients ask to skip coming in for a personal interview in favor of a phone call. Better yet, get an answer on the fly by email. These are indeed useful devices for both lawyers and clients but they are handled without perspective. The goal is to put your economic house in order or to formulate a new living arrangement with your children. This kind of goal is rarely advanced in increments of ten or twenty minute conversation let alone a five minute email exchange.

Your divorce involves your family and your money. Take the time to do your best to get it right and give your lawyer the tools and the time to do so.

SOME PRACTICAL ADVICE ABOUT MONEY

Mark Ashton — Tue, 22 Sep 2009 16:54:19 -0500

There are two reasons family law will always be a busy area of practice. The reasons are that there are two subjects we do not teach in school: conflict resolution and money management. If people could manage their money or the conflict in their lives, the divorce business would be in for a major downturn.

Practical financial advice is hard to come by. And we say this with some authority because we have been looking for professionals who understand household finance. Yes, there are thousands of publications out there that will tell you how to ladder certificates of deposit or dollar cost average your way into index funds. But, how much you spend on a car or an apartment often determines whether you have any money to invest at all.

Ironically, we found some sensible and practical advice in the September, 2009 issue of Glamour Magazine. No kidding. Wedged in between Jessica Simpson’s views on men and three flat belly secrets we found an article by Sophia Banay supported by a woman named Galia Gichon who founded something called “Down to Earth Finance.” The magazine is worth buying for all of the advice but the segment we particularly liked was the part discussing how to budget a $50,000 income. Gichon breaks down expenses into four categories. She takes the budget and converts to monthly income of about $4150. She appears to allow for income taxes although that number is not discussed. But her breakdown is divided between:

Fixed expenses that don’t change monthly $1665 a month

Discretionary living expenses $830-970 a month

Retirement savings $417 a month minimum

General Savings $140-280 a month

Gichon comments that fixed expenses including rent, utilities and car payments should not consume more than 60% of your net income (gross income less income taxes). She suggests that rent or mortgage payments should not exceed half of the fixed expense budget, although this can be a tough assignment in many urban parts of this country. But if that is where life takes you, the answer may be that you don’t drive the same car or limit your discretionary expenses.

Obviously, it is also possible to forego general savings, especially in a world where you are already saving for retirement. The article suggests that discretionary expenses be limited to 30% of net pay. This is where the weak tend to falter at the altar of clothing stores, restaurants and Starbucks. Another contributor to the article, Maria Bartiromo of Closing Bell on CNBC sagely offers that you allow yourself a day before making any major discretionary purchase. Time afford perspective and you may actually discover that television is almost as enjoyable on the 30 inch flat screen even though the 42 inch beckons.

The article also addresses the subject of debt. In the past the standard advice is that you need to save three to six months income to cover you for the “rainy day” of illness or unemployment. Today, consumer credit may fill in the gap, but we are finding that many people are already using their cards to fund expenses they can’t afford long before the rain day ever comes. These are folks who simply cannot survive if a crisis emerges because they are already deep in high rate debt.

The goal is to budget but before you can intelligently budget you must first be thoroughly familiar with what you bring home and what you currently spend. It is not a pretty task but people who want to have money when they stop working had better address the question sooner rather than later no matter what their marital status.

REAL ESTATE AS AN INVESTMENT

Mark Ashton — Mon, 21 Sep 2009 13:20:59 -0500

Lawyers are not financial advisers but we do lots of real estate transactions and for most divorce clients, the largest asset in the portfolio is the family home. So in just about every matrimonial case, there is the inevitable question. Should we hold or is it time to fold?

It’s always good to study the data. And the news for our region for the second quarter of 2009 is relatively good. Prudential Fox and Roach reported the first region wide increase in housing prices in two years. The biggest increase was in the city (6.8%) while the suburban increase was less than half that (2.7%). There had been a sharp decrease in the first quarter of the year. We have also weathered the storm well compared to other large cities. Philadelphia prices have declined 12% from their peak while average declines in the ten largest cities was closer to 30%.

Inventories (homes listed for sale) are leveling off and there is an increase in the rate of sale of those houses in inventory. This has meant a reduction in the number of days it takes to sell a house.

So, does that mean the end of the downturn is over. Even the experts a Fox & Roach hasten to note: “Those expecting a near-term return of 2005’s peak prices will be sadly disappointed.” Within the region, the worst sales markets were Camden and South Jersey (down 10-11% in the past year) while Trenton area fared best (down 0.5%). The Philadelphia market fell 5.31%.

While the second quarter offered an uptick in the rate of sales, it still took 20% longer to sell a home in June 2009 than it did June, 2008. The average house sold was on the market more than three months. If no new homes were listed, the 2,500 homes on the market would still take almost a year to clear at the current rates of sale. That number has changed very little from last June.

Homes are not just places to dwell in. They are an investment. And since the collapse of the dot-com bubble of 2000 Americans have invested heavily in their homes. We have been taught and there is data to show that homes can be a good investment. What most of us tend to ignore is the fact that value is a moving target. And in markets like Phoenix and LasVegas, where prices have declined an average of 33% in the last 12 months the picture is especially clear.

Let’s use LasVegas as an example. Let us say that in April you owned a house in that market in which you had equity (price $300,000 –debt of $200,000) of $100,000. A buyer approaches you and offers you $300,000. But you bought the house for $450,000. So you decide to wait and turn down the offer. Between April and the end of July, the data show that you lost another 2.6% on average. Now suppose you took the offer and took your equity of $100,000 and put it in an S&P index fund, it would have risen to $130,000. So your decision to hold cost you $40,000 between the loss on what you had and the money you failed to make.

Home equity is an engine of potential wealth. We are not advocating irresponsible borrowing but home equity is trapped wealth except in times when home prices are rising. And with the inventory of homes still out there, it is going to be a long time before we see prices rise. Bear in mind also that the increases reported earlier in this piece come at a time when interest rates are at historic lows. As interest rates rise, price increases in homes will inevitably face the headwinds of increased interest rates. So, if you bought at the height of the market, realize that in your quest to recover your losses, you may be foregoing the opportunity make real money in other investments.

PRIMARY CARETAKER DOCTRINE/CASE LAW SUMMARY

Aaron Weems — Fri, 18 Sep 2009 12:28:18 -0500

Significant weight is often given to parents considered to be the caretaker for a child. Once a custodial schedule is established, the parent with partial and not primary physical custody often feels that, barring dangers to the health and welfare of the child, it is impossible to reverse the situation and become the primary custodial parent. Recent case law, however, has shown that the assumption that the primary caretaker of the child will always succeed in a custody action is an incomplete view of the “primary caretaker doctrine” and that the “positive consideration” the courts give to parents under the “primary caretaker doctrine” does not always result in that parent retaining primary physical custody. The recent Superior Court case Gianvito v. Gianvito, (2009 PA Super 1008) illustrates that the primary caretaker doctrine encompasses not only the day-to-day care of the child, but also evaluates the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.

The most interesting aspect of the Gianvito, however, is that a non-custodial parent, the father, was able to obtain primary physical custody in a situation where the court readily admitted that the primary custodial mother, was a fit and loving parent. This is not a case where the negative attributes of one party bolstered the other parent’s case, instead, the Gianvito case illustrates how the court is able to make a significant custodial change, despite the absence of any evidence suggesting that the custodial parent is not a suitable or loving parent. The June 2009 opinion in Gianvito highlights the Courts’ willingness to reward a party for making the child’s interests their highest priority and for recognizing the child as being the most prominent aspect of their life.

In this case, the court recognized that Father modified his work schedule to maximize the time he had available to spend time with the child, though it increased his work commute, he and his fiance purchased a home closer to the child, he sought to take the child to medical appointments, and he participated as a parent helper for the child’s daycare class. The court recognized Mother’s skills, nevertheless, they viewed the decisions she made in her life such as where she lived, her career, and her use of daycare for the child, as being motivated by her needs and goals, rather than what was best for her child’s continued development and growth. Her motivations were not criticized by the court, but they were distinguished from Father’s motivations for making similar decisions.

Father’s decisions clearly indicated that he made the child a priority, even if it made certain aspects of his day-to-day life more inconvenient or burdensome. Mother, meanwhile, made decisions to maximize the ease with which she could pursue her personal goals and accommodate her fiancé’s living arrangements. The weight given to Father’s efforts exceeded the “positive consideration” Mother received based on her role as the primary caretaker. The quality of the time Father made for the child was considered superior to the quantity of time Mother spent with the child.

Gianvito is an example of a court’s willingness to reward parents for making their child the highest priority in their life. By including an analysis of the quality and quantity of time parents’ spend with their child in the “primary caretaker doctrine,” the Courts have clearly indicated to parents that simply providing the necessities may not be sufficient to preserve your role as the primary custodial parent. If a parent shows a willingness to shoulder difficulties and sacrifices in other areas his or her life in order to maximize the quality and quantity of time they spend with the child, then the Court may alleviate those burdens by granting the parent primary physical custody of the child

THE COST OF COLLEGE

Mark Ashton — Wed, 02 Sep 2009 16:45:49 -0500

In recent years the numbers are so frightening, people tend to mention them only in a whisper or with the caution that “of course we are getting some scholarship money”. But here is the data published by the College Board for 2008-2009 based upon its averages.

Tuition & Fees Room & Board

Public College 6,585 7,748

assumes attendance in–state

Private 25,143 8,989

So, the public school option will require just under $50,000 in after tax income while the high priced spread is going to be a little more than double at $136,528. See http://collegboard.org.

This author is embarrassed to report that his alma mater again garnered laurels as America’s most expensive private university with 2008-09 tuition of $40,437. Housing ranges from $6-14,000 and food is another $2500-3500. This student graduated with annual costs of $4-5,000 a year in 1977. In 2009 dollars that should yield an annual cost today of $14,500 to $18,000. In real dollars, it means that the cost of college at this one institution is 3x the rate of inflation. But then Washington today is a far different place than it was during the days for Ford & Carter.

AND YOU THOUGHT YOUR HOUSE WAS YOUR BIG INVESTMENT?

Mark Ashton — Tue, 25 Aug 2009 13:38:38 -0500

If you are not one of those people anxiously awaiting the latest revision to the Pennsylvania support guidelines, you may be in a minority. We have no news to report on this subject except that the recommendations of the rules committee have been sent to the Supreme Court for their review and approval.

The Pennsylvania guidelines are based on models for child costs developed by the Center for Nutrition Policy and Promotion at the US Agriculture Department. That agency has just issued a report on its assessment of what it costs to raise a child in 21 century America. Here are the numbers in the raw:

For families with annual household The cost is estimated to be Per annum

Income of:

Less than $57,000 159,870 8,882

57,000-98,000 221,190 12,288

98,000+ 366,660 20,370

The study, which involves monitoring expenditures of 5,000 families shows that there are economies of scale as families get larger. The average couple spends 27% on one child; 40% for two children and 47% for three. Costs tend to center on the first five years of childhood and during the consumer nightmare years of 15-17. Kids in elementary school up through middle school are more affordable. Curiously, this rule did not apply to folks in the lowest income bracket. Their expenses remained relatively flat throughout the child’s minority.

These numbers are averages. They assume no support obligation after high school so college is not part of the equation.

The breakouts are also of some interest. The study found that one-third of the cost of raising a child is spent on housing. Food comes in at about 16% and is closely followed by transportation costs of roughly 14%. Clothing consumes about 6% of the total cost and is overshadowed by healthcare which 7.8%. Day care and education are lumped together and consume another 16%. The final 8% is the dangerous “miscellaneous” category that probably includes, lessons, cell phones and itunes downloads.

For households with more than $98,000 the expenses are about the same except that education/day care jumps from 16 to 21%.

The numbers are premised upon the costs of a second child, not the first so they are tending to understate the real costs of Baby No. 1.

The report is available on line from the USDA. It is miscellaneous publication no. 1528-2008 and was issued in July, 2009. The data are drawn from surveys completed in 2005-06 but the expenditures were then adjusted based on changes in the Consumer Price Index (CPI).

Two other details to add to the pain are worth mentioning. The 2008 baby is estimated to cost just under $300,000 before he or she reaches high school graduation ($484,000 for the upper income bracket of $98,000+) and the urban northeastern states have costs that are almost 20% higher than the national average.

So how bad is this in a relative sense. The USDA has been tracking these types of expenditures since 1960. In real dollars (inflation adjusted) the child of today costs 18% more than the child of 50 years ago. Ironically, housing has almost nothing to do with this even though the house of today is far larger than it was a half century ago. The biggest change is in child care and education growing from 2% to 16% today. Health care is next. It has doubled in cost over time from 4% to 8%. Transportation clothing and food have all declined as a piece of the pie with the cost of feeding a child reduced by 1/3 and clothing costs cut almost in half (11% to 6%). But the miscellaneous costs have increased from 8% to 12% as the child of fifty years ago had to occupy himself with Lincoln logs, Barbie, bicycles and teen magazines.

WHAT'S WITH THIS CUSTODY MEDIATION STUFF?

Mark Ashton — Thu, 20 Aug 2009 08:42:04 -0500

If a lawyer actually listens to a client, some times there is a sense of disappointment that the client has not articulated, but, nonetheless, is present to behold. I received a phone call from a client tonight. He had spoken with a court appointed custody mediator who had explained to him how mediation works in Pennsylvania. I could tell he was disappointed that this information was imparted not by his attorney, but the mediator. The client’s concern was that he was walking into a process that could possibly affect his time and opportunity with his children and I was not the one to explain it.

So, let it be explained. This year marks the tenth anniversary of Court sponsored custody mediation. Thirty years ago custody cases were fairly simple. Mothers were awarded custody and an interested father could see his kids every other weekend from sundown on Friday to Sundown on Sunday. But thirty years ago, a couple of things started to change. First, Pennsylvania adopted the Equal Rights Amendment as part of our state constitution. This meant that discrimination on the basis of gender became inherently suspect and illegal as a matter of law. Second, fathers who had parented children during the 1960s and began to express sincere interests in having an ongoing relationship with them. Not all father’s interests are sincere but, in initial interviews we have conducted with clients in the last twenty years, the trend has favored mother’s acknowledging that “he’s a good father even if he doesn’t always get it right.”

The result of fathers’ increased interest in having an ongoing relationship with their children was a huge tide of custody litigation. And if there is one subject upon which psychologists, attorneys and judges agree it is that adversarial proceedings concerning custody are inimical to the best interests of children. As adults we know how to fight. And one hopes we know when to fight. But we invest enormous energy in teaching our children NOT to fight and if we lead by example, fighting over our children is not an example to be celebrated.

Although many people (including this writer) challenge whether adversary proceedings are the best way to resolve family law matters, Court rooms are the places where most custody challenges are heard. Thus, the focus tends to be on winning instead of resolving custody matters. And lawyers are bound by their own code of ethics to represent clients zealously although most will tell you that they abhor such zealotry in a world where children are the pawns.

So, the idea evolved to give the parties a chance to resolve their differences outside the Court room and without lawyers and judges. Mediators are trained professionals who are assigned by the court to sponsor discussion between parents concerning management of their children in a divorce setting. They have no power to decide anything. Their training is directed towards fostering “conversation” between the parties and promoting resolution. They do not represent either party. Nor do they represent the child or the child’s best interests although they are directed by Court rule to try to get the parents to see what is in the child’s interest. They may, with the consent of the parents, meet with the child. They have no power to make a recommendation although they will commonly offer a menu of possible solutions that the parties may or may not choose to select.

Lawyers are not permitted to participate in mediation sessions. What is said in mediation is confidential and therefore not admissible in Court. Mediators therefore do not become witnesses even though what they see and hear in a mediation session may be something the Court would like to know.

Most counties are adopting these programs because they find that they are a low cost and often effective means to get parties to talk through a custody conflict. Typically, Courts will order mediation before a formal court proceeding although some counties offer mediation after a Court appearance has failed to resolve matters. If agreements are reached, the mediator is customarily asked to prepare a memorandum of understanding that the parties are free to discuss with their attorneys before any agreement becomes effective. Some parties will choose to engage in multiple mediation sessions rather than take the case on to hearing or conciliation where the Court ultimately will decide what is best.

Because the process is confidential, mediators do not tell the Court what occurred. Where mediation is required by Court rule, mediators will report whether a party “attended” but no more even if the party refused to speak. The point is to get the parents to talk about what they want for their children before they go to Court. The goal is to avoid Court but it is also to refine the issues before a Court proceeding takes place. If a parent says he or she wants a change in custody, the point of mediation is to explore why he wants it and how it is in the child’s best interest. But, Courts also recognize that because the stakes appear so high, mediation will not often work. Sadly, it is not often in one’s interests to lay all cards on the table in mediation. That is a judgment best made by the client in consultation with the lawyer. It takes two to resolve custody matters and both must agree that they are not shopping for an advantage in the litigation if the mediation is to be truly successful.

So there it is. Mediation101.

"WE'RE TAKING THIS TO THE SUPREME COURT, BABY"

Mark Ashton — Fri, 07 Aug 2009 13:29:16 -0500

As one might expect family court is a pretty emotional place to be and at least once or twice a year a distressed litigant with an unhappy result is heard to utter the words found in this title.

We thought it might be of some interest to report on how appeals work and if the Supreme Court is a place where relief can be had. The discussion necessarily starts with: what Supreme Court? There are two of relevance here. The Supreme Court of Pennsylvania is the Commonwealth’s highest appellate court and the oldest such court in the nation. What most citizens do not realize is that, by and large, it is a court of discretionary appeals. This is to say that the Court decides what cases it will hear based upon orders granting allowance of such appeals. You have to ask the court to review your case and the justices actually vote on whether to do so. There are published appellate rules stating that the criteria used to decide when they will exercise their discretion in favor of hearing an appeal. The most commonly invoked rule is that the appellant presents a unique question of law not previously decided and which the court believes of sufficient importance to merit review. The second route to the state Supreme Court is to show that a ruling of the Pennsylvania Superior Court strays from existing law and is inconsistent with established precedent.

Now, what about the “nine” who inhabit that building behind the Capitol in Washington? The United State Supreme Court is also a court of limited jurisdiction. Ordinarily it will grant “certiorari” (also an allowance of appeal) in cases where there is a federal question, meaning a question involving laws passed by Congress and interpreted in the federal judicial system. Each state and the District of Columbia have both federal courts and state courts. The United States Supreme Court may also grant an appeal in matters where state courts have abridged rights which the US Supreme Court views as fundamental. Common examples of this are found in the area of criminal law where states have adopted laws or procedures the US Supreme Court finds inimical to well established freedoms such as the right of privacy, the right to a fair trial or the right to hold property.

It is exceptionally rare for the United States Courts including the federal district courts in each state or the US Supreme Court to hear family court matters. There is actually authority holding that family law matters are best left to the states themselves to decide. The US Supreme Court has ruled that the rights of a parent are “fundamental” but except in circumstances involving termination of parental rights (in contrast to regulation of them) the United States Courts are to abstain from hearing matters involving family law. This general rule has some exceptions but they are tiny. In a word, the US Supreme Court is not going to hear an appeal of your divorce, custody or support case unless you can show that the procedure the state has established to regulate those cases is so flawed that it denies you fundamental rights like due process of law.

As for the Pennsylvania Supreme Court, it has much broader powers to decide what cases it will hear. We recently asked the Supreme Court to review a decision of the Pennsylvania Superior Court where we believed the Superior Court had misconstrued both the state law governing support and precedent laid down by the Supreme Court in the 1990s regulating what constituted income for support purposes. A 1984 statute had established the definition of income for purposes of support. The Supreme Court had ruled in Humphreys v. DeRoss that income did not include gifts or loans that a party received unless a party had a plain right to the gift. Almost all gifts are given in the discretion of the donor and not a matter of “right”.

In our judgment the Superior Court had strayed from established precedent when it reversed a trial court ruling holding that money our client had received as a gift was not income for support. We filed a request for allowance of appeal asking the Supreme Court to review the matter and, in June of this year, it not only adopted our position but instantly reversed the Superior Court and reinstated the trial court ruling. This is uncommon because, the standard procedure is to grant the appeal and then review briefs and hear argument from both sides.

But because there was already statutory authority defining income and Supreme Court had recently interpreted that statute, it appears to have decided that further debate of the issue was not required.

Appeals are, and have always been, a slow and expensive process. Customarily they are heard only after all of the trial court proceedings are concluded. One has the right to appeal any final ruling of a trial court, but that appeal is to the Pennsylvania Superior Court. The party appealing must prepare a record copying all of the relevant pleadings and exhibits material to the ruling of the trial court and write a brief (of not more than 50 pages) summarizing how the trial court either failed to follow existing precedent or abused its discretion in ruling as it did. Disposition of an appeal customarily takes nine months from the date the appeal is first filed to disposition by a three judge panel of the Superior Court. Because appellate briefs must contain citation to applicable law and the transcripts and exhibits used at trial it is fairly common to take an hour to write each page of an appellate brief. Appeals are ordinarily disposed of after oral argument by a written opinion evaluating the merit of the appeal. The Supreme Court does this only in cases where it decides that the appeal merits consideration in the first place.

So if you are “taking this up” to a higher court, it is helpful to know where and how an appeal is processed.

HEALTH INSURANCE AND DIVORCE: GOOD NEWS IN SMALL PACKAGES

Mark Ashton — Wed, 22 Jul 2009 12:34:35 -0500

As Congress finally tackles the larger issue of health care reform, many Americans are struggling with a small but vital issue; their own health insurance. This has become a tough commodity to find at any price and each change in coverage offers the risk that existing illnesses or conditions may be excluded from coverage. For some time now, federal law governing employers with 20 or more employees required that continuation coverage be afforded for 18-36 months to any employee or eligible dependent who would otherwise lose insurance coverage by reason of a job termination or divorce.

Problems emerged if the business had fewer than 20 employees, the federal law (known by the acronym COBRA) did not apply. So, employees who worked for small businesses often found that they would not be able to continue their health insurance coverage.

Earlier this Summer, the Pennsylvania General Assembly sought to address the problem with a “mini-COBRA” bill directed to insurance providers. A summary of the bill was prepared by our Labor and Employment Law Department members Erin Fitzgerald and Steven Ludwig.

Effective July 10, 2009 Pennsylvania’s new state law requires that the opportunity to continue group health coverage be provided to employees of small employers with 2 to 19 employees.

The law requires insurers to provide the opportunity to continue group health coverage to certain employees and eligible dependents who would otherwise lose coverage. An employer is required to notify former employees and others of their right to continue group health coverage.

The motivation for the legislation was the federal stimulus bill which provides certain employees who are involuntarily terminated from employment on or before December 31, 2009, and their dependents, with a COBRA subsidy. The subsidy allows the employee to pay only 35% of the health insurance premium with taxpayers picking up 65%. The Pennsylvania legislation will extend the subsidy to reach eligible employees and their dependents at employers with fewer than 20 employees. Although the federal subsidy is scheduled to end, the Pennsylvania law has no sunset provision.

Under the new law, a covered employee or eligible dependent who suffers a “qualifying event” causing the loss of health coverage is eligible to elect continued coverage for up to nine additional months. However, the employee or eligible dependent may only elect continued coverage if he or she was covered under the group health plan for the entire three-month period preceding the “qualifying event.” Qualifying events include, but are not limited to, the death of the employee, termination of employment for reasons other than gross misconduct, and divorce. Employees who are eligible for Medicare or who are eligible for or covered by other group health insurance are not eligible to extend benefits or to receive the federal subsidy.

After electing continued coverage, premiums (which can be increased to 105% of the cost of group health coverage) must be remitted monthly. If the cause of the loss in coverage is involuntary termination of employment between July 10, 2009 and December 31, 2009, the 65% federal subsidy is available for up to nine months for eligible participants. Involuntary termination generally means severance from employment because of the unilateral decision of the employer to terminate the employee.

Employers have several obligations under the new law. Employers must notify the administrator of the group health plan, the covered employee and the insurer of any qualifying event, within thirty days of the qualifying event. The notice given to the covered employee must include notice of the employee’s right to continue group health benefits. This notice should be given in writing and should include contact information for the health insurer. The U.S. Department of Labor has provided a “Model Alternative Notice” to provide to employees eligible for state continuation coverage. However, the model notice will need to be modified to conform to Pennsylvania law and a different notice will need to be used after the subsidy is no longer available. That model notice can be found at: http://www.dol.gov/ebsa/COBRAmodelnotice.html. Employers will need to closely coordinate with their health insurer so that proper notice is provided to covered employees.

After the covered employee has been properly notified, he or she has 30 days to notify the Plan Administrator of the decision to elect continuation coverage. Within 14 days of receiving the employee’s decision, the Plan Administrator must notify the insurer of the employee’s decision.

THE CHILD'S DUTY TO SUPPORT A PARENT

Mark Ashton — Mon, 20 Jul 2009 16:56:03 -0500

Almost twenty years ago I was asked to speak to the State Conference of Trial Judges about what then seemed to be a fairly arcane subject; whether adult children could be sued for support by their parents or by individuals or entities providing their parents with necessities. Countless pages are written about the subject of parents and their duty to support minor children. But did the duty run in the other direction?

It turned out then that there is such a responsibility. According to Blackstone, this principle comes from Athenian law. 1 Wm. Blackstone, Commentaries on the Laws of England p. 442 (1765). As he described it just prior to the American Revolution, “….they who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance.

The address to the judges on this concept seemed of little effect at the time as there was no recent litigation addressing this subject. But approximately two years ago I spoke with a fellow attorney from Bucks County, Maryjo Murphy, who said that nursing homes were starting to initiate suits against children for services rendered to their parents.

Monica Yan Kinney’s article in the July 12,2009 edition of the Philadelphia Inquirer at page B.1. gives life to the Athenian law as applied in 21^st century America. The article tells the story of a Havertown resident, Don Grant who was sued by his mother’s nursing home for $8,000 for services supplied to her. The ironic twist is that Mr. Grant’s mother does receive social security and a state pension but neither of these income streams is attachable by creditors. So, the nursing home sued Mr. Grant for his mother’s care. Mr. Grant professes that he is estranged from his mother and that he was raised by his grandparents. But that does not appear to be a defense today just as it was not in Blackstone’s day. In fact, as Judge Blackstone put it, the statute passed under Queen Elizabeth I provides that a child is “equally compellable, if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor as for one who has shown the greatest tenderness and parental piety. 1 Blackstone p. 442 (citing Stat. Eliz. C.2.)

The Kinney article notes that Mr. Grant did not act promptly to appeal what was probably a district court judgment. It thus became final. But there is a Pennsylvania statute, 23 Pa. C.S. 4603 that provides spouses, children and parents of indigent persons have a duty to care for, maintain or provide financial assistance. Perhaps there is new law to be made here. The statute also states that the obligation is premised upon the payor’s financial ability and the obligation is not enforced where a child was abandoned by a parent for 10 or more years of the child’s minority. 23 Pa. C.S. 4603(a)(2). But the doctrine of parental responsibility does appear today to be a two way street. And the statute confers the right of suit on the indigent person and any other person or public agency having an interest in the care of the indigent person.

Guardianship and the Incapacitated Person

Mark Ashton — Thu, 09 Jul 2009 08:45:50 -0500

Family law is often narrowly viewed as issues affecting custody, support and divorce. Many families, however, also find themselves in Pennsylvania’s Orphans’ Court grappling with issues concerning adoption and incapacitated persons.

We live in an age when medicine often allows the body to last longer than the brain. Dementia and Alzheimer’s disease is a part of life for many families and it can make for a difficult time. Pennsylvania has adopted a flexible approach toward incapacity. The PA approach is based on the concept that elderly citizens may need help doing some things but not others.

The recent Bucks County ruling, Collins Estate, illustrates the PA model. 82 Bucks Co. L.R. 404 (June, 2009). In August of 2007, the children of David Collins saw their father starting to fail mentally. One child filed a petition to have a guardian appointed of his person (to make decisions affecting his welfare) and of his estate (to manage his assets). At a preliminary hearing in September of 2007, five of his children testified in favor of the appointment of their sibling because their father was becoming forgetful about his personal needs and his financial affairs. Mr. Collins sat quietly through the proceedings. When the Court issued temporary orders for an independent evaluation by a psychologist, however, he appealed to the Superior Court. This appeal was quashed because the proceedings were not complete.

Mr. Collins also resisted the evaluation. He retained a lawyer and demanded a jury trial on the issue of whether a permanent guardian should be appointed. The trial took five days and included testimony by Mr. Collins, his children and by the psychologist who found that he suffered from dementia. The jury found Mr. Collins incapacitated. Incapacity having been found, the Court structured an order seeking to balance the need for supervision against the rights we expect to enjoy to the use of our property. The daughter who had brought the petition was appointed guardian of the person of Mr. Collins. He had asked that his lawyer be given that task.

Mr. Collins was found to have difficulty attending to his day to day finances, his personal care and his medical needs. His daughter’s appointment provided that these decisions were to be made in consultation with her father but with the clear directive that she could rule on these matters if her father’s wishes did not comport with his welfare.

Mr. Collin’s estate consisted of roughly $250,000 in bank deposits and $1.85 million in investment accounts at Boening & Scattergood. The daughter was empowered to manage the bank deposits to manage his needs but Mr. Collins was left in charge of the investment account because he seemed to have some familiarity with the funds and how they should be invested. The Court also saw that he had a longstanding and trusting relationship with his broker. Because the funds were conservatively invested, the broker would know if Mr. Collins would begin to act in ways that seemed inconsistent with his history of managing his wealth.

Mr. Collins appealed the final decree imposing these limitations and challenging the constitutionality of the statute. 20 Pa. C. S. 5501 et seq. He also asserted that the Court exceeded its authority in conducting an inquiry into the nature and extent of his wealth. As this decree is now final, this ruling will be evaluated by the Superior Court.

The statute defines an incapacitated person as one whose ability to receive and evaluate information as well as to communicate decisions effectively is impaired to an extent that renders him unable to manage financial resources or meet essential requirements of health and safety. 20 Pa. C.S. 5501 Once this level of impairment is found a guardian is appointed. Consideration may be given to the preference of the person for whom the guardian has been appointed. But the court may overrule the request of the subject in favor of someone it believes will perform the tasks of guardian and who has no clear conflict of interest. 20 Pa. C.S. 5511(f). In Collins, the Court determined that the daughter who brought the petition was already serving in a similar capacity for her mother and that her siblings approved of her performance. On the other hand, it saw the appointment of Mr. Collin’s attorney as guardian to be potentially divisive.

This case offers a good illustration of how the statute works and the flexibility it can provide where the incapacity is partial. These are difficult cases as many aging parents either cannot sense that their mental abilities are slipping or they are resistant to giving up control of certain aspects of daily life. The litigation can also breed family conflict as children will sometimes disagree on what should occur or side with a parent because they believe it may offer them advantage when the parent does his or her estate planning. These are challenging questions and make for complex and protracted litigation because there is no “bright line” test for mental acuity.

The Prisoner Controversy

Mark Ashton — Thu, 09 Jul 2009 08:24:47 -0500

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

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

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

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

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

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

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

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