Pennsylvania Family Law

Study Indicates that Divorce Adversely Affects Childhood Development

Aaron Weems — Mon, 07 May 2012 07:11:46 -0500

A study conducted by the University of Chicago and Georgetown University revealed that children whose parents divorce when they are between three and five years old are more likely to have to behavior problems than older children, such as middle school or adolescent children.

That divorce has an adverse impact on child development should come as a surprise to no one; considering the emotional and daily routine disruption of moving from a two parent household to a single parent household, there undoubtedly be a lasting impression left on a young child.

I assume that for the 3,492 children followed in the study, there were 3,492 families that would otherwise prefer not to be in their situation. The unfortunate aspect of the divorce is that there is never a “good time” to do it; by virtue of the divorce process both in the house and the courts, there will likely either be some negative repercussions on the parties and their children. However, for many of those families, the emotional and psychological damage may have occurred before anyone filed for divorce.

Whenever it comes to pass though, the best outcomes in divorces tend to be those in which the individuals involved can effectively co-parent their children and move past any personal animosity in favor of a consistent, unified front with the children. Succeeding in doing so will likely help to blunt some of the developmental impact divorce has on children.

New Law Gives Military Parents More Custody Options When They Deploy

Aaron Weems — Mon, 30 Apr 2012 10:06:49 -0500

A recent revision to Pennsylvania’s custody and military affairs statutes has made it easier for deployed or deploying service men or women to address custody cases and assign their custody rights to family members.

Sen. Lisa Baker, a Pennsylvania state Senator representing portions of Luzerne, Pike, Susquehanna, Wayne, and Wyoming Counties (Pa. 20^th District) introduced the bill which was signed into law on April 12^th.

The most important aspect of this revision occurs in military affairs statute (51 Pa.C.S.A. § 4109) which was expanded to allow a service-member who is on deployment or received notice of their deployment to petition the court for a temporary order assigning their custody rights to a family member. Previously, Section (a) of this statute prohibited any the entry of an Order modifying or amending a custody order that changes the custody arrangement of the child. While the prohibition against modifying custody while a service-member is on deployment remains in effect, by adding the ability to temporarily assign custody rights to family members, the Courts have the flexibility to issue reasonable orders which accommodate the service-member's deployment.

The limits on the assignment of the custody rights are such that the family member can not have more custodial rights than those enjoyed by the service-member. The Court also retains a “best interest of the child” standard in determining whether assignment is appropriate, so there should not be an expectation that assignments will be rubberstamped by Court; the proposed family member must be an appropriate alternative during the parent’s deployment. Once the parent’s deployment is over the prior custody schedule is reinstated. It is also worth noting that the law excludes service-members such as reservists who periodically leave for training for less than thirty (30) consecutive “active duty” days.

This revision is a significant addition to the statute and should result in relatively swift determinations for the assignment of custody rights. For a service-member who is facing months away from their children, this bill will hopefully have the effect of quickly and satisfactorily resolving an important issue before they leave on their deployment.

Cohabitation Does Not Always Lead to Happy Marriages

Aaron Weems — Wed, 18 Apr 2012 17:32:36 -0500

Advising individuals as to how to handle their cohabitation with a significant other is becoming an increasingly important aspect of my practice. There are many studies, theories, and myths as to the impact (positive or negative) on whether cohabitating before marriage is beneficial or detrimental to a marriage. A recent New York Times article addresses this very issue and finds that the results from a study by the National Marriage Project at the University of Virginia indicate that those who cohabit are less satisfied with their marriages.

The intriguing part of the study is that since the survey was originally conducted in 2001, cohabitating at some point before marriage has increasingly become the norm for couples, therefore, the sample group of successful or unsuccessful marriages among cohabitors is increasing.

The psychological analysis by the writer, University of Virginia clinical psychologist Meg Jay, is fascinating, particularly in how she applies "consumer" concepts to how people view their liviing situations. For the psychological layperson, it can be grossly generalized as settling for the person you are living with because, frankly, going out and finding someone else is hard when you share a lease.

Dr. Jay’s article adds to the conversation as to whether cohabitation “works” or not, but her work clearly demonstrates that relationships do not magically change simply because people get married.

RELOCATION NARROWLY CONSTRUED IN A NEW SUPERIOR COURT OPINION

Mark Ashton — Fri, 30 Mar 2012 08:58:43 -0500

Since the new custody statute and relocation provisions came into effect in 2011 we have had only one reported decision analyzing the statute. E..D. v. M.P. 2011 WL 5392990. That changed on Tuesday with the publication of CMK v. KEM, a case decided by the Superior Court affirming a Mercer County decision denying relocation.

The salient facts are that the child was almost seven at the time the relocation hearing took place. Both parents lived in Grove City, Mercer County. They never married. Mother had primary physical custody following separation in July, 2008. The schedule was not formalized until July, 2010 when Father secured alternate weekends from Friday at 6:00 pm to Sunday at 8:30 and every Wednesday from 6:00 to 8:30 PM.

Mother served her notice of her intention to relocate on June 2, 2011. Father filed his objection on June 27. Mother’s proposal was to move the child 68 miles away from Grove City to Albion in Erie County. The trial court heard testimony and decided that Mother did not meet the burden of “proving that relocation with Child would be in Child’s best interest.”

Although Mother had, by her filings, treated the move as a relocation, she argued on appeal that it was not. Specifically, she asserted that because she had offered an additional 21 overnights as part of her proposed package, Father was not “losing time”. This is an interesting approach as the statute defines a relocation as a residential change which “significantly impairs” the custodial rights on the parent who remains behind. 23 Pa. C.S.A. 5322(a). The trial court did see the change as significant notwithstanding the proposed change in schedule.

The trial court found that the child had a very close relationship with both parents and that Father’s involvement was “regular and continued” including street hockey and baseball. Father was part of medical appointments and school evaluations of the child. In its decisive utterance the Court found that relocation would “break the continuity and frequency of Father’s involvement with [the] child and therefore threaten significant impairment of Father’s ability to exercise his custodial rights. Mother’s offer of additional custody time would not ameliorate these adverse effects See 23 Pa. C.S. A. Sec. 5337(h)(3).”

The fact that Mother had spent most of her life in Erie County and that her family was located in that community or that she had job prospects in Erie County was not sufficient nor was the fact that Father had a history that included a Protection from Abuse Order and charges he had violated it. The Court instead based its analysis upon the assessment that the current custodial arrangement was working and that the evidence of abuse did not relate to the child. It also noted that mother regularly visited father’s parents with the child and that both parents had used paternal grandparents to provide occasional child care. To allow the move would jeopardize these otherwise stable arrangements.

The trial court had acknowledged that there was some benefit proposed by Mother’s move but the economic benefits were speculative at best. Rather the child was rooted in the Grove City community. This coupled with the frequent contact between Father and child outweighed the proposed benefits of a move.

CMK v. KEM 1419 WDA 2011 decided by JJ. Bowes, Olson and Platt (Wm H.; frm Lehigh Co judge)

ARE PERSONAL INJURY CLAIMS MARITAL PROPERTY? AN OLD QUESTION REVISITED?

Mark Ashton — Mon, 12 Mar 2012 12:53:02 -0500

In a case decided late last year the Pennsylvania Supreme Court visited an old and persistently nagging question. Are personal injury settlements marital property where the injury occurred before separation but the trial or settlement of the claim occurred afterward?

In Focht v. Focht, the husband was injured at a raceway in Leesport, PA in April, 1999. He and his wife retained counsel shortly after the injury with the wife raising a claim for loss of the consortium of her husband (i.e, his services as a spouse). A divorce action was initiated in early 2004. The personal injury cases ultimately settled later that year for a gross value just over $400,000.

In the divorce proceeding Husband asserted that his “right” to the $400,000 did not exist until the case was settled with the defendant. Since that came long after the separation he relied upon the statute stating that court has jurisdiction over property acquired during the marriage. Wife asserted that the property right accrued the moment he was injured and that all he did later was to exchange his right to sue for a sum of money representing the loss he sustained in April, 1999 when he was injured.

This seems to be a relatively simple question but there had been case authority suggesting that Husband was correct and that view was sustained by the Pennsylvania Superior Court. 990 A.2d 59 (2009). The case that created the confusion was a 2002 case Pudlish v. Pudlish, where the Superior Court held that a worker’s compensation claim settled after separation was not marital because the employer had denied worker’s compensation up until a time after husband and wife had separated. 796 A.2d 346. The Supreme Court, in Focht decided that Pudlish had been wrongly decided. In so doing it followed the sound reasoning referenced above; the occurrence of an injury is when a right accrues, not when the case is resolved. To do otherwise would actually encourage separation and divorce as the injured spouse might not wish to share any resulting settlement with a spouse who may or may not have been part of the trauma itself or the process of recovery. This also made matters exceedingly complex for the lawyer who represented husband and wife at the outset. In most instances, a case is settled in one piece and defendants care little about how the settlement is allocated between injured party and spouse. Where the two are contentedly married there is really very little to fight over, but in this case, because the separation was well underway the personal injury lawyer had to grapple with a husband and wife wrangling over the value of the actual injury versus the derivative consortium claim.

We are commonly asked how cases like this are managed where the settlement or award is a large portion of the marital estate and yet one party has had the traumatic injury and the other party has suffered for however long cohabiting with the consequences. It is not uncommon for people who have suffered traumatic injury to become depressed or require intense care for weeks, months or years at a time. Thus, the answer to the question is quite fact specific. In equitable distribution all of these facts must be weighed. But the single greatest factor remains to what degree the “injured” spouse continues to have either pain or economic loss after the injury occurs. In cases where a person loses the use of a part of the body or is afflicted with chronic health issues by the injury, the award or settlement will go in large percentages toward that person. But that may not be the case where a traumatic injury yields to an otherwise full recovery. These are tough cases to value in equitable distribution but at least it is now clear that the case itself is marital property if the injury occurs before the parties separate.

Focht v. Focht 32 A.3d 668 (Pa. Supreme, 11/23/2011)

WHAT'S LOVE GOT TO DO WITH SUPPORTING AN IMMIGRANT SPOUSE?

Mark Ashton — Fri, 09 Mar 2012 09:04:53 -0500

In December, 2011 a panel of the Superior Court decided Love v. Love. 33 A.3d 1268 (2011). This was a Philadelphia County support action wherein Wife came to the United States with husband’s child. The child was born in 2003. The husband and wife married in 2005 and the application for immigration appears to have been processed in 2008. Shortly after Wife was admitted to the United States the couple separated and Wife began an action for support.

The trial court heard the case and decided that upon consideration of the earnings and earning capacity of all parties, Wife was entitled to support of $622 for the child and $323 for the child. Wife appealed asserting that, among other things, upon her admission to the United States husband had executed an affidavit under the Immigration and Nationality Act (8 U.S.C. 1183a) by which he committed to support Wife at a level equal to $125% of the Federal Poverty Guideline rate. That statute references Form I-864 wherein a person seeking to bring an alien into the U.S. or to seek a change in status for the alien creates a contract with the United States government by which the alien can sue for support equivalent to the 125% rate. In 2011, the rate for a household of one was $13,613 and for two it was $18,388. The support order in this case was significantly less than this amount; thus the appeal by wife.

The trial court found this obligation was contractual and therefore outside the scope of Pennsylvania support laws. This was not to state that Wife could not enforce this contract; just that it was not cognizable under Pennsylvania support laws which permit very draconian remedies (e.g., imprisonment, loss of licenses, seizure of bank accounts etc) for non-compliance with a support order.

The Superior Court heard this appeal and reversed with instructions to amend the order to the amount required under the “contract” with the Immigration and Naturalization Service. The ruling contains some fascinating observations not all of which tie firmly with existing law.

In this case the Superior Court relied upon a statute from the Divorce Code. 23 Pa. C.S. 3105. It provides that where the parties reach an agreement “within the jurisdiction of the court under this part” the Agreement has the effect of being a court order in its own right. Curiously, however, as the dissent notes, this action was not initiated under “this part” of the Domestic Relations law-specifically the divorce law (called Part IV) in the statute) but under a different part- the support law (called Part V).

Another curiosity is the treatment of earning capacity. It is well established that in deciding support rights under Pennsylvania support law, courts look not only to the actual earnings of the parties but their earning capacities. In this case, the appellate court implies that the affidavit trumps the support law in cases involving immigrants only. The opinion states: “We conclude that an immigrant spouse’s earning capacity should not be reapplied to offset the sponsor’s financial obligation.” The court finds that mitigation is an “affirmative defense” that must be pled and proved even though the support rules do not mandate an answer or refer to affirmative defenses being pled. The conclusion is that in support court only non-citizens may have an advantage because only their actual income will be considered.

The dissent notes that much of this ruling contravenes well established Pennsylvania law and precedent. It suggests that a separate action in contract be initiated although the contract in this case is between the United States and the husband and third party beneficiary rights in a domestic relations setting have been somewhat difficult to enforce. Chen v. Chen 893. A.2d 87 (Pa. Supreme 2006).[1] Suffice to say that this is a new branch of domestic relations proceedings and one which may trigger more appellate law refining it. For example, if the sponsor was not the spouse but a parent or employer, is this action cognizable as support? Can an immigrant plaintiff sue a sponsor and a spouse at the same time for support; one under the INS law and the other under Pennsylvania law?

[1] Chen decided that a child must be specifically designated as an intended beneficiary to maintain third party status to sue. It would appear from the language of Form I-864 that wife in this case would have that status. (“that person may sue you for this support”)

CASE SCHILLER BRINGS BAD NEWS FOR HOMEOWNERS

Mark Ashton — Mon, 05 Mar 2012 12:28:42 -0500

The 2011 numbers are in an homes in America lost another 4% of their value last year. Add the rate of inflation for 2011 to that and the number comes to 7.16%. If you are settling your divorce premised upon a recovery of housing prices it would appear that despite a horrid second and third quarter, equities was the place to be last year.

The Case Schiller data do not look specifically at Pennsylvania housing prices. But if you want to feel good try looking at the data reflecting how far markets have fallen from their peak. From worst to best:

Vegas 60+ percent decline in value

Phoenix 55+

Miami 50

Detroit & Tampa 46%

San Diego & San Francisco 40%

Atlanta, Chicago, Minneapolis, Seattle 34-35%

New York & Washington DC 25%

Charlotte 20%

Boston & Denver 12-14%

Dallas 10

Lawyers are not economists. But the concern about future home prices has a demographic dimension. Young people graduating from school and entering the employment market are doing so with an unprecedented level of debt. That debt is going to impact their ability to afford housing for many years to come. Our history since 1950 has been for a new generation of affluent young people to “buy” their parents generation out of larger and larger homes. Those days may be behind us.

Insurance

Katherine R. Sookhoo — Wed, 15 Feb 2012 06:36:05 -0500

I recently met with a financial planner who commented to me that something divorcing parties neglect to handle is their insurance - whether it's car, life, homeowners, or health insurance. I then read this article that summarizes some of the key issues surrounding insurance in the event of a divorce/separation, so I thought I would share it to make sure we don't neglect the insurance issues:

http://money.msn.com/saving-money-tips/post.aspx?post=130c1f52-5797-451a-9f77-b5dfe1fd6e72

Social Media Follow-Up

Katherine R. Sookhoo — Mon, 13 Feb 2012 06:34:13 -0500

Here's an interesting article that follows up my recent blog on Facebook:

http://allthingsd.com/20120208/you-know-who-really-loves-smartphones-divorce-lawyers/

Facebook - Good or Bad?

Katherine R. Sookhoo — Tue, 07 Feb 2012 08:22:02 -0500

I wrote a blog a few months ago about a man who was using a blog to disparage his wife which sparked a Free Speech debate - and a mess in his custody litigation. My blog post can be found here:

http://pafamilylaw.foxrothschild.com/2011/08/articles/custody/free-speech/index.html

Social media has become a big factor in our family law cases. A recent article discussed Facebook and how "posts" to Facebook can affect family law cases (i.e. a person claims they do not have money for support, but they post pictures of their European vacation on Facebook or when a parent bad mouths the other parent in a "status update."). The article can be found here: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202540333140&Facebook_Has_Become_a_Factor_for_Pa_Family_Law_Cases&slreturn=1

Many attorneys counsel their clients to shut down their Facebook pages during their case. Is this going to far? Is it necessary? Unfortunately, it probably is necessary. Each party is under such a microscope during a family law case that they cannot afford to have anything on the web or Facebook that would cast them in a negative light. Even the most innocent post or picture can be misinterpreted, and it is better to avoid the issue altogether than to deal with the fall-out.

We are all entitled to "free speech," but the issue becomes how to best use it during family court litigation.

New Rule Requires a Support Calculation for (nearly) Every Case

Aaron Weems — Mon, 23 Jan 2012 18:16:03 -0500

Pennsylvania has recently made considerable changes and revisions to the support section of the Rules of Civil Procedure; some are more significant than others, but one which may make things a little easier for parties and counsel alike is the revision to Rule 1910.11 which goes into effect January 31, 2012.

Rule 1910.11 will make it a requisite that all support conferences result in a guideline calculation. Specifically, it states that the parties “must provide income information” so that the conference officer can perform a guideline calculation. The only exception is where the parties are represented by counsel and have reached an agreement about the amount of support and contribution to additional expenses; otherwise, everyone else gets a support calculation.

The result of this change is that unrepresented parties and attorneys will have more information to help them understand the support obligation and how it was arrived at by the conference officer. This will also provide valuable information for attorneys who are not involved in the case until after the initial support conference; having a support calculation and basic income information will result in a more complete Domestic Relations Office file and, by extension, allow attorneys and their clients to be better prepared for the next step of the process (which may vary depending on practices of each county).

Though not a major overhaul of the rules or as nuanced as some of the other revisions we have seen over the past year, this revision may have the most day-to-day impact on litigants and attorneys.

The New Custody Factors

Katherine R. Sookhoo — Mon, 09 Jan 2012 15:16:05 -0500

On November 9, 2011, the Superior Court filed its first decision (E.D. v. M.P., 2011 PA Super 238 (Pa.Super. 2011), regarding the newly enacted Child Custody Act, 23 Pa.C.S.A. Section 5321 related to a Petition for Relocation. The Superior Court vacated the trial court's order and remanded the case to the trial court to make the proper analysis under the new law. In a relocation case, the Court must consider the following ten factors:

(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

(4) The child's preference, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or opposing the relocation.

(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.

(10) Any other factor affecting the best interest of the child.

Because the trial court failed to look at these ten factors they remanded the case back to the trial court. So, the lesson from the case is: make sure you present testimony at the trial court level regarding these ten factors to ensure your case is compliant with the current case law.

Unreimbursed Medical Expenses

Katherine R. Sookhoo — Thu, 29 Dec 2011 08:32:43 -0500

In child support cases, the party that is receiving child support pays the first $250 in unreimbursed expenses per child. Medical expenses include insurance co-payments and deductibles and all expenses incurred for reasonably necessary medical services and supplies, including but not limited to surgical, dental and optical services, and orthodontia. Medical expenses do not include cosmetic, chiropractic, psychiatric, psychological or other services unless specifically directed in the order of court. If your child has specific needs, then those needs will need to be specifically stated in the support order.

So what happens after the first $250 in unreimbursed medical expenses? Those expenses are split in proportion to the parties' incomes. The parties will have to keep track of the expenses each year, and then submit them to the other party. To ensure that you receive reimbursement, you should keep a spreadsheet with the receipts attached. Pursuant to Pa.R.C.P. No, 1910.16-6(c), documentation of unreimbursed medical expenses that either party seeks to have allocated between the parties "shall be provided to the other party not later than March 31 of the year following the calendar year in which the final bill was received by the party seeking allocation." So to make sure that you receive reimbursement, make sure that you get it to the other party by March 31st. If you have any trouble getting reimbursement, the Court can always provide assistance.

Alone During the Holidays?

Katherine R. Sookhoo — Thu, 15 Dec 2011 13:53:52 -0500

I recently read an article about "navigating" through the holidays when you are newly divorced.

I think it should extend to those who are newly separated as well. The holidays are a difficult time when you are newly separated. The emotions are fresh, and you might not have worked out the nuisances of the holiday custody schedule. And it's an adjustment from "sharing" a holiday together to "sharing" a holiday apart. I think that the article does a great job of suggesting things that will help you through the holiday season - particularly being flexible, thinking about the other party, having a good attitude and providing service to those in need. Although it is a difficult time, it is good to put it in perspective. It will help you get through the holidays more easily, and it will be better on your children as well.

Decision Fatigue

Aaron Weems — Sun, 11 Dec 2011 10:38:03 -0500

In August 2011, an article was published in the New York Times about “decision fatigue.” John Tierney, a frequent columnist for the Times, describes a series of studies examining the effects of making multiple decisions over a period of time and experiencing what has been coined “ego depletion” whereby as human beings we have finite amount of energy with which to make thoughtful decisions. This energy gradually depletes as decisions accumulate until the “decider” finally finds themself making snap decisions with considerably less consideration than they had before. Basically, it is possible that a person finally reaches a point where they will make a decision less on their wants and needs and more just to have the question out of the way and to move on.

As a series of experiments described my Mr. Teirney indicate, people become indecisive because they fear losing options. The anecdotes provided in the piece demonstrate how mentally fatigued people are less likely to make trade-offs and will, instead, seek to preserve the status quo or eliminate the nuance the decision (i.e. compromise or make trade-offs) and make the decision one dimensional. The status quo is not always the best decision for the situation, but it has familiarity in its favor.

The article is fascinating for a lawyer because our clients have undoubtedly been through a “Rubicon”-like scenario as described by the scientists Mr. Tierney’s interviews. After repeated analysis, decision-after-decision, negotiation, explanations, more decision-making, it is not surprising that a client at 4:30 p.m. is more amenable to settlement, than he was at 8:30 a.m. They can feel worn down. That is not to say that the decisions are wrong, but the science indicates that the decision-making has changed as the mental fatigue increased. Lawyers are not immune to this physiological effect, either.

There is no real “cure” to ego depletion, merely a few things to mitigate its effect. Ultimately, when a client is faced with an important decision late in the day, the relationship between the attorney and the client will be a critical element to ensuring the “right” choice is made and not just “a” choice is made.

SUPERIOR COURT CLARIFIES WHAT MATERIAL CAN BE SECURED FROM AN EXPERT WITNESS FILE

Mark Ashton — Wed, 07 Dec 2011 08:44:27 -0500

As lawyers we are commonly asked to forecast judicial outcomes. What will a court do given a stated set of facts? Of course, it is rare for facts to be the same in the eyes of two adverse parties but even when the facts are agreed, lawyers and judges sometimes cannot agree on the law. Thus begins the story of Carl Barrack and his suit against Sodexho and the hospital that treated him.

This is not a family law case but the November 23 ruling of the Superior Court has implications for family law and all other forms of civil (non criminal litigation). In this decision the Superior Court reversed itself and a prior ruling by a trial court in Cumberland County.

Carl Barrack sustains injuries when a chair he was sitting in suddenly collapsed. He sued the business where the chair was located and the physicians who treated him. Under rules regulating pre-trial discovery it is fairly common and understood that the defendants he sued for his injuries are entitled to secure copies of his medical records. In this case the defendants did precisely that. The rules allows Mr. Barrack and his attorney to object any subpoena issued by other parties to the case. In this case the demand was for all records relating to Mr. Barrack. It was directed to the treating physician’s employer, a hospital. Because this was fairly routine and otherwise not the subject of objection by Barrack, the hospital produced the records of the treating physicians to the extent they reflected what was Mr. Barrack’s course of treatment from the time of admission.

When it published these records in accordance with the subpoena the hospital noted that Barrack’s physician had been identified as Mr. Barrack’s expert witness concerning his injuries and that records of reports and correspondence generated between the treating physician and Barrack’s lawyer were not being produced because they were not medical records concerning treatment but expert opinions related to either the nature or extent of Barrack’s injuries.

The defendant’s were not content with this answer. No objection to the subpoena had been filed. Therefore, they asserted that any objection was waived and that the trial court should compel production of all records including correspondence between the expert and Barrack’s attorney.

The trial court agreed despite the argument made by Barrack’s attorney that communications between a lawyer and his client’s expert were not permitted under the law. The matter was appealed to the Superior Court which heard the case because it involved an assertion of privilege which, if not heard could forever harm the Plaintiff’s case.

A three judge panel of the Superior Court agreed with the trial court largely on the basis that the interests of justice should permit open discovery of how expert opinions had been formed. This was contra to wide held understandings in the legal community and certainly many lawyers and experts held candid correspondence in their files concerning how an expert opinion was received.

Because this was so controversial, the parties sought immediate review by a nine judge panel of the Superior Court. That request was granted in November, 2010 approximately sixty days after the three judge panel of the same court affirmed the trial court.

This panel decision prompted tremendous controversy. The prevailing view had been that communications between a lawyer and the expert witness were not subject to inspection or inquiry. Many litigation attorneys trembled in fear that communications that they had made in pending cases with experts would now be subject to scrutiny. These letters had been written before Barrack I was decided.

The case was complicated by the fact that the expert was also the treating physician. It is clear that the physician’s treatment records are subject to review in a case for personal injuries. But the use of the same physician as the expert witness is more the exception than the rule in this area of practice.

The decision is Barrack II reversed the panel decision and is a strict construction of Pennsylvania Rule of Civil Procedure 4003.5. That rule strictly limits what access a party to litigation gets to another party’s expert. The entitlement set forth in the rule is to either answers to interrogatories regarding who the expert is and what is the substance of the expert’s findings or a copy of the expert’s report. Anything beyond that is secured either by agreement or through a separate court order based upon cause shown. Pa. R.C.P. 4003.5 (a)(3). Had the Supreme Court intended for litigants to secure more by right, they would have made the rule more permissive.

The argument was asserted by the defense attorneys that the plaintiff’s failure to object to the subpoena was waiver of the rights set forth under the rule. The Superior Court rejected this as well noting that when the subpoena was issued it was not clear to the party issuing it that the physician had a dual role as both treating physician and expert witness. The plaintiff was within his rights to assume that the discovery material would be limited to treatment records.

The decision is in a civil case but it has direct bearing on family law cases involving experts of all stripes. An expert report in family law is governed by the same rule as in personal injury cases.

Putting the Kids First

Katherine R. Sookhoo — Fri, 02 Dec 2011 06:32:37 -0500

Here's a great article about putting your children first after a divorce:

http://voxxi.com/2011/11/28/putting-the-kids-first-after-divorce/

Sanity During a Divorce? It's Possible!

Katherine R. Sookhoo — Thu, 01 Dec 2011 06:25:20 -0500

Going through a divorce is such a difficult time, and it is such an emotional time. A lot of people wonder if it is possible to go through a divorce and maintain yourself as a rational and reasonable person. I will tell you that it is tough - but it is possible, and it will likely take some adjustments on your part. I recently read an article that offers some great tips for both the initiating and non-initiating spouse:

10 Tips for a Sane Divorce: Five for You, Five for Me

http://www.huffingtonpost.com/micki-mcwade/10-tips-for-a-sane-divorc_b_1102419.html?ref=divorce&ncid=edlinkusaolp00000008

Clever QDRO's and "Sham" Divorces Give Pilots Access to Retirement Funds

Aaron Weems — Tue, 29 Nov 2011 15:55:01 -0500

Mark Hess, a partner in our Los Angeles office and an attorney who specializes in employee benefits, wrote an article on Qualified Domestic Relations Orders (QDRO's) and an interesting 5th Circuit case, Brown v. Continental Airlines, Inc. In the Brown case, Continental Airline pilots and their spouses used QDRO's and what amounted to sham divorces to avoid retirement plan rules and receive their retirement funds without taking the usual tax hits.

QDRO's can be complicated and very technical; for the layperson, they can be overwhelming, but the Brown case shows not only a great example of legal creativity, but the facts as conveyed in Mark's article also help demonstrate how a QDRO operates in a divorce, its utility, and their purpose.

Dealing with Support Overpayments

Aaron Weems — Sun, 06 Nov 2011 12:29:50 -0500

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

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

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

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

2) How do I get the overpayment returned.

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

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

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

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

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