Pennsylvania Family Law

COUNSEL FEES

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

aweems@foxrothschild.com (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

mashton@foxrothschild.com (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?

mashton@foxrothschild.com (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?

mashton@foxrothschild.com (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"

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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

mashton@foxrothschild.com (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.

THE EMANCIPATED CHILD

mashton@foxrothschild.com (Mark Ashton) — Tue, 23 Jun 2009 10:01:45 -0500

We are commonly asked how long child support lasts in Pennsylvania. This is a relatively easy question to answer but one with both a history and some varying results. By statute and case law, the duty to support a child ends when the child has reached age 18 or graduated from high school, whichever comes later. 23 Pa. 4327 et seq.; Blue v. Blue, 616 A.2d 628 (Pa. Supreme 1992).

The history of this responsibility has some interesting twists. Beginning in 1963, the Pennsylvania Superior Court embarked upon a series of decisions finding that, in certain cases, parents could be held responsible for the support of adult children attending college. Com ex. Rel. Ulmer v. Sommerville. For the next three decades this law evolved in a variety of ways within the Superior Court. In 1992, however, in Blue v. Blue the Pennsylvania Supreme Court challenged the very principle that the Superior Court had such power. The Supreme Court ruled that the Superior Court was without legal authority to direct parents to contribute to pay post majority support except in circumstances where the child was incapable of supporting him or herself through employment.

The Blue case sent a shock through the judicial system, as tens of thousands of children were already getting support while in college. In response, the General Assembly passed a bill expressly conferring upon courts the power to direct payment of post secondary educational expenses where the parents were separated or divorced. In 1994, the Supreme Court of Pennsylvania challenged the bill and held that to discriminate between children of intact families in contrast to separated families was a violation of equal protection. Therefore, the court found that the statute was unconstitutional and deemed it ineffective. Curtis v. Kline, 666 A.2d 265 (1995)

So, once again, a child who entered college in 1992 with a college support order found himself stripped of any entitlement to college support. Interestingly, Curtis v. Kline remains the law of the Commonwealth even though the statute books still contain 23 Pa. C.S. 4327 stating otherwise.

Parents may still contract to provide for post secondary support as part of their divorce and those agreement are enforceable. Where the support order requires payment through the judicial mechanism of Domestic Relations, however, support is supposed to terminate at age 18 unless the child continues to be enrolled in high school and is pursuing a diploma. In recent years, the courts have become adept at terminating these orders, commonly sending notices to custodial parents of the intention to terminate an order on a child’s eighteenth birthday unless the custodial parents responds that the child is still in high school. Despite the courts’ action in recent years, it is not wise to rely upon the courts to address this question. Parents should be aware that, until an order is entered terminating the support, the wage attachment will continue to be collected. And, if the support is collected and disbursed, woe to the payor who asks the Domestic Relations Section to get that money back. Typically, the payor is told to sue the payee in small claims court for the overpayment. This is usually not a happy result.

If you have the good fortune to be the parent of a graduating student and there is ANY question of whether the order is terminating, file a petition to terminate and ask for a conference or hearing. If the order is administratively terminated by the judicial system, your hearing may become unnecessary. Even if you made a contractual agreement to pay support after emancipation, those payments should not be made through the court or wage attached.

If you have a child who lives with you and cannot otherwise support himself or herself, then you, as the parent, have the burden of establishing the child’s dependence if you want support to continue. Com. Ex rel. Magaziner. V Magaziner, 419 A.2d 149 (Pa. Superior. 1980); Brown v. Brown, 471 A.2d 1168 (Pa. Super. 1984). Support granted should be in accordance with the guidelines, but there is a likelihood that you will be asked what state or federal disability resources you have available to help support the child. Also, bear in mind that any support petition you bring for an adult child must have the child’s written consent.

SHHHH! DON'T TELL MY LAWYER

mashton@foxrothschild.com (Mark Ashton) — Tue, 23 Jun 2009 08:44:39 -0500

Clients have a sixth sense for things that are problematic. Unfortunately, that sense is coupled with a tendency to freeze and avoid talking about the problem. Often times, clients prefer to ignore the problem, or assume that it will solve itself.

Lawyers fancy themselves as problem solvers and good lawyers have a knack for doing just that. Unless the lawyer knows and understands the problem, however, solutions are not easily found. When a client senses a problem, there are three places where clients tend to move quietly and not tell their attorneys what their plans are: tax returns, home sales, and asset transfers and sales. As one might expect, the failure to examine these transactions with an attorney can be harmful, or even fatal, to the financial interests of the client. Let’s take a look:

Tax returns. Joint tax returns make for joint liability. Every year by April 15, private taxpayers must file their income tax returns and tax payments for the previous year. For example, the 2008 tax year closed on December 31. So, tax returns and taxes were due on April 15, 2009. Historically, almost all couples file joint returns because that is what they have done in the past. Also, there are usually tax savings associated with a joint return. For Americans who are paid wages, there are not many options in terms of tax avoidance. Where one or both of the taxpayers are self-employed, however, there is room for mischief. Unfortunately, clients tend to assume that tax fraud is something that affects the other “self employed” guy, and that nothing bad will ever happen to them. As a result, every year clients end up signing joint income tax returns without realizing that if the return “blows up” and is challenged by the IRS, any resulting liability is what attorneys call joint and several. That means if your spouse puts false numbers on the return, the tax law says that, with few exceptions, you agree that your assets can be seized to pay the tax and penalties arising from the matter. The fact that you are separated is not itself and impediment to collection efforts by the IRS. The classic case is Duff v. Duff, 510 Pa. 251 (Pa. Supreme 1986). Although there are ways to try to address this problem, the starting point is to realize that joint returns make for joint legal responsibility. Your oath that the return is accurate extends beyond your own income to that of the spouse with whom you file.

Home Sales. If husband and wife own a home as joint tenants or tenants in common, neither can sell the property without the consent of the other. In order to sell the property, the co-owner must join in the deed to convey a clear title to property. So, when we are asked whether a spouse can sell a house out from under the other, the answer is no, unless the house is held in the name alone of the spouse having title. That’s good news. But, it is fairly common for a separated husband and wife to agree that they want to sell their joint property. They sign the listing agreement together and the broker/agent attempts to sell the property. Let’s say, for example, a couple lists for $400,000 and they receive and offer of $375,000, which they find attractive. Again, the tendency is to not solicit legal advice. So, they agree to take the $375,000 and they sign the agreement of sale tendered by the prospective buyers. This is major because they are now “under agreement.” Although these agreements usually contain conditions allowing for an “out” by the buyer e.g., home inspection, mortgage contingency), they rarely allow the seller to back out. Once the agreement is signed, the sellers are legally bound to convey title at settlement upon tender of the contract price. This is a good thing, right? Yes and no. Without further agreement between the sellers, the title agent will issue the proceeds in a single check that mirrors the title to the property. This means that neither party will have access to the proceeds from the sale unless there is an agreement. If you are planning on using these proceeds to acquire a substitute residence, you may find that you have no access to the funds until you “agree” with your spouse on a distribution or the court otherwise decides your case. Without an agreement, the proceeds will be left in escrow until there is an agreement or court order disposing of the same.

Assets Transfers and Sales. The law seems clear that unless a court order prevents an individual from selling or moving assets from an individual account, each spouse can buy, sell or transfer assets as he or she pleases. We find that clients tend avail themselves of these powers. This is not bad in and of itself. Clients, however, tend to ignore the fact that each time sales and transfers are effected, there is a likelihood that the spouse not in possession of the account will want to “trace” each transaction or transfer in order to insure that no proceeds were skimmed from the transaction. This process requires expensive accounting, which tends to consume time and money, as well as slow down the divorce process.

If you are signing legal documents of any substance while going through a separation or divorce, let your attorney know. If you are signing a document with your spouse from whom you are separated, it is imperative that you understand the legal consequences before you sign. As a rule, assume that you cannot “undo” a document once you have signed it.

ASSISTED REPRODUCTIVE TECHNOLOGY

jganz@foxrothschild.com (Julie Ganz) — Fri, 12 Jun 2009 15:42:28 -0500

It seems as if, more and more, the classic story (boy meets girl, boy falls in love with girl, boy and girl get married, have a house full of babies and live happily ever after) needs a little help from science. The Center for Disease Control reports that as of 2002 approximately eight percent (8%) of women of reproductive age attended an infertility related medical appointment at some point. Given that there are approximately sixty two million women of reproductive age in the United States, the number who are suffering from infertility is staggering.

However, as the numbers of individuals with infertility concerns rise, so seemingly do the numbers of treatments available. The real growth in the field of assisted reproductive technology (“ART”) started in the United States in the early 1980’s with In Vitro Fertilization (“IVF”). Since that time, the options available have expanded to include surrogacy, gestational carriers, and a host of medications.

With the growth in ART has come a whole host of legal and ethical questions, which many states have failed to definitely or adequately answer. As a simultaneous student of Bioethics and Law at the University of Pennsylvania, I had the unique experience of exploring how the ethical issues of ART intersect with the scant “law” which exists on the topic. While the law is equipped to deal with the usual circumstance of IVF (using the gametes of a husband and wife and implanting any resultant embryos in the wife), once you move beyond that scenario and use donor eggs or donor sperm, a surrogate or a gestational carrier, the waters become more merky. It is imperative that before anyone dives head first into the process, he or she reviews all of the potential legal ramifications with an attorney.

For example, what will become of the embryos you do not use? Many clinics require couples to make this decision up front, but what if an individual changes his or her mind? What if an egg donor changes her mind and no longer wants her fertilized eggs to be used? What happens if the intended parents separate while a surrogate is pregnant? What if those separated intended parents have no genetic ties to the expected child? Is it more beneficial to use unknown or known donors? Surrogates?

Until recently, it had not been definitively determined whether a sperm donor owed a right of support to any children which resulted from his donation in Pennsylvania.

In another matter, an egg donor, who wanted nothing to do with the ongoing custody dispute between the gestational carrier and the intended parents, was dragged into court, albeit briefly.

All of these scenarios may require an attorney to represent the individuals involved against the other individuals involved in the realms of custody and support, but may also require representation against the medical professionals and organizations involved. Hospitals may be at a loss as to whom they should release a baby, as to who should be listed as parents on a birth certificate and as to what their responsibilities are in terms of releasing or destroying embryos.

The best way to avoid legal problems when undergoing ART, is to plan ahead and be aware of what legal situations may arise and how to best deal with them. Cleaning up after the fact, when there is a child in the middle, is never ideal.

A CHILD SUPPORT CASE BOTH BIG AND RICH

mashton@foxrothschild.com (Mark Ashton) — Fri, 12 Jun 2009 15:25:27 -0500

Although our law firm has litigated several of the largest support cases decided in Pennsylvania the matter of how much support children need is one of endless controversy for those who have household net incomes exceeding $20,000 per month. We are often asked to offer second opinions or discuss those cases we have tried. The fact is that while we have opinions about these larger cases, most of them settle because the range of possible outcomes is so wide even in cases where we believe we understand the approach taken by the judicial officials deciding the law.

Since 1984, Pennsylvania has operated under a Supreme Court ruling in Melzer v. Witsberger, 480 A.2d 991 (Pa. Supreme 1984). The case created a multi-part formula beginning with an analysis of the income each parent’s available income and then assessing the “reasonable needs” of each parents for his or her own support and graduating to an assessment of the reasonable needs of the child or children in each parent’s household. Based upon a subjective evaluation of these needs, the court allocates what contributions need to be made from one household to the other to cover the child’s reasonable needs. The process is complicated and rife with opportunity for “judgment” calls. Moreover, most members of the judiciary will candidly admit that a lifetime of common sense experience often leaves them unprepared to decide what is reasonable when wealth is enormous. Does a one year old need a governess if the primary caretaker is already staying at home. Does a reasonable vacation expense include first class seats? Private plane? 747? While Pennsylvania has not opined on these subjects, other states have had to.

It is rare for high income cases to be reported because they usually settle. But in January of this year a Schuylkill County case, Rich v. Rich, was decided by the Superior Court based upon their review of a Melzer analysis. 967 A.2d 400 (Pa. Super. 2009)

The case involved support of four children at its beginning. One was emancipated during the two years of litigation culminating in the final order. The father was a CEO for several coal and co-generation companies. Father’s gross income was $9-10 million per annum. His net worth roughly four times that amount. Mother was not employed. Father’s home and contents occupied 150 acres and had an aggregate worth of $2-3 million. Mother lived in a mortgage free $725,000 home.

Mother presented expenses of roughly $180,000 a year for the four children. The trial court accepted these expense and awarded $15,000 a month. Support was not reduced upon the eldest child’s emancipation, the Court finding that other expenses would have risen during the period involved.

Father appealed from the order. His first complaint is that Ms. Rich failed to document her expenses. The Rules of Civil Procedure were amended in 2006 to require documentation of expenses in cases decided under Melzer where net income of the family exceeds $20,000 per month Pa.R,C.P. 1910.27(c)(2)(a). His particular complaint was a $50,000 item budgeted for credit cards charges without supporting data or delineation. The Superior Court found that Father waived the argument when he agreed that the expenses presented for 2005 were reflective of actual post separation expenditures.

The second basis for the appeal was the trial court’s refusal to reduce support by 25% once the eldest child was emancipated. The appellate court properly noted the law to forbid arithmetic reductions not supported by testimony related to expense savings. At the same time, it observed that it was also an abuse of discretion to infer that the cost of living increase was equal to the reductions in costs arising from a child’s emancipation. The case was remanded to the trial court to consider what cost savings would result from the child’s emancipation.

Mother also appealed. T he core of her appeal was that the support was insufficient and she pointed to two cases litigated by Fox Rothschild (on behalf of plaintiff’s) where more support was awarded for children than Mr. Rich was required to pay even though his income was 2-4x greater than the payor spouses in Karp v. Karp, 686 A.2d 1352 (Pa. Super. 1996) and Mascaro v. Mascaro. 803 A.2d 1186 (Pa. Supreme 2002)

The Superior Court easily disposed of this . The support award made by the court was 100% of the budget presented by Ms. Rich even though she claimed that her needs were only 10% of the $15,000 in claimed monthly expenses. Where she pointed to the disparity in accommodations between her $725,000 home and father’s $2-3 million dollar residence, the Court pointed to Colonna v. Colonna, 855 A. 2d 648 (Pa. Supreme, 2004) where the Supreme Court of Pennsylvania held that “case law does not require that all the recreational benefits that the children enjoy when they are with Father must also be provided through support from Father when they are in Mother's custody. In fact, Mother admitted that the children have continued to attend private schools and summer camps as they did before she established a separate residence. Our review of the record in relation to Mother's first two issues reveals that the court's conclusions are not in error and no abuse of discretion was committed.”

So, in the 25^th year after Melzer became the law of the Commonwealth, we still do not have an appellate case that thoroughly analyzes what is a “reasonable” expense for a child or even how to allocate things such as auto insurance or propane bills between parent and child. But we do know that $15,000 is not an abuse of discretion for four children and we are reminded that Mr. Rich’s access to vacation homes while the children are with him does not warrant support adequate to allow Ms. Rich to replicate that lifestyle while with the children. The case also discusses how to dispose of huge accumulations of credits or arrearages emerging from lengthy proceedings and interim payments. But that will be for another day.

A CHILD SUPPORT CASE BOTH BIG AND RICH

mashton@foxrothschild.com (Mark Ashton) — Fri, 12 Jun 2009 15:25:27 -0500

RELOCATION OF CHILDREN IN CUSTODY CASES; THE PENNSYLVANIA PERSPECTIVE.

mashton@foxrothschild.com (Mark Ashton) — Fri, 05 Jun 2009 16:44:41 -0500

We live in a mobile society. We also live in a society that experiences a high rate of divorce. These two facts make for some of the most contentious litigation found in the domestic relations world. It is the fight over whether one parent, usually the one with primary physical custody, can take a child to another state to reside there on a permanent basis.

When we have children we all form the Currier and Ives image of the happy nuclear household. The children will grow up in an intact family with the love and respect of both of their loving parents. But when mom and dad split and mom shortly thereafter announces that she wants to move to Texas to re-up with her former boyfriend the term “nuclear family” takes on a whole new meaning. It was bad enough that father got dumped. It was worse that she took most of the assets. Then there was the child support. And now, topping the cake, is the concept that the children should live 2,000 miles away and see their loving father once a month and four weeks in the summer.

Can this happen in 21^st century America? It does every day. Part of the reason is that none of the facts recited in the last paragraph really matter a lot. Custody is not about parental pain. It is about what is in the childrens’ best interests. So, how could it be in a child’s best interest to grow up hours away from one parent. Courts struggle with this issue every day. And, in so doing, they are not unmindful of how a custody result may be grossly unfair to a parent even though in the child’s best interest.

There is a three prong test employed when one parent proposes to move a significant distance from the other parent taking the children with them. The test comes out of a 1990 Superior Court case called Gruber. v. Gruber. 583 A.2d 434 (1990).

Prong 1: What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children? Also is the move the product of a momentary whim on the part of the custodial parent?

Prong 2: Does the motivation for the move have integrity and is the reason for opposing the move have a similarly sound basis? and

Prong 3: Are there available realistic alternative arrangements for substitute partial custody or visitation and will such arrangements adequately foster an ongoing relationship between the child and the non-custodial parent?

The initial burden is upon the party proposing the relocation to show the “advantage” to the parent and child. Each party has the burden with respect to the second prong addressing integrity for the dispute over relocation.

In these cases, past is usually prologue. A non-custodial parent intimately involved both physically and emotionally in rearing a child presents a major hurdle to that custodial parent who wishes to relocate. A parent whose involvement has been limited to routine visits and little more may find him or herself in a disadvantaged position. Courts also examine whether parental conflict over custody issues may make distance an attractive option. On the other hand there are also cases where a modest level of conflict drives one parent to ask to relocate because “life will be simpler.” This does not usually make for a successful case.

The most common and most nettlesome area of conflict is over the question of whether relocation “will substantially improve the life of the custodial parent and the children.” There is language in the Gruber case that seems to imply that benefit to the custodial parent may be enough even without palpable advantage to the children. In metropolitan areas with competitive schools and rich cultural resources, it is sometime difficult to persuade a court that there is an advantage to the child associated with the move.

In recent years there has been a vast increase in this breed of custody litigation. There are many issues to consider and many reported cases addressing the issue. But Gruber stands as the seminal case. The cases decided in the 1990s tended to focus on the benefit to the parent and permit relocation even though a distinct advantage to the child was not often clear. But in the past decade, the trend has shifted against relocation with recent cases weighing how the children benefit from the move in ways that differ from the happiness of the custodial parent. One thing remains clear. People who have already experienced and angst and heartache of separation and divorce do not respond well to plans intended to permit relocation of their children to distant places.