Honoring Dr. Martin Luther, King, Jr.

STATUTE OF DR. MARTIN LUTHER KING, JR.

Honoring Dr. Martin Luther King, Jr.

Today, we pause to honor the life and legacy of Dr. Martin Luther King, Jr., a visionary leader who championed equality, justice, and the power of peaceful resolution. His dream of unity and fairness continues to inspire us every day.

In family law, we often witness the complexities of relationships and the challenges families face. Dr. King's teachings remind us that respect, compassion, and understanding are critical to resolving conflicts and building stronger, healthier communities.

As we reflect on his words and actions, we reaffirm our commitment to advocating for fairness and seeking solutions that uplift and empower families during difficult times.

Let us all strive to embody Dr. King’s values in our work, our homes, and our communities. Together, we can help bring his dream closer to reality.

KAYDEN’S LAW: SEVEN NEW ENUMERATED OFFENSES ADDED

There have been significant changes to the custody statutes. When making a determination in custody, the court will consider whether either party (or member of their household) has enumerated offenses under Section 5329 of the custody statutes.  The court will determine to what extent the party (or household member) poses a risk to the child.  As a result of the amendments to the custody statute to focus on the safety of the child, the legislature has added seven new offenses to the list of enumerated offenses:

1. Simple Assault (18 Pa.C.S. Section 2701)

2. Recklessly Endangering Another Person (18 Pa.C.S. Section 2705)

3. Interference with Custody of Children (18 Pa.C.S. Section 2904)

4. Cruelty to Animals (18 Pa.C.S. Section 5533)

5. Relating to Aggravated Cruelty to Animals (18 Pa.C.S. Section 5534)

6. Relating to Animal Fighting (18 Pa.C.S. Section 5543)

7. Possession of Animal Fighting Paraphernalia (18 Pa.C.S. Section 5544)

A criminal conviction under Section 5329, is not, by itself, determine the outcome of a custody award.  The court must consider the totality of the circumstances when issuing a custody order.  

The amended rules will go into effect on August 13, 2024. To read all of the changes to the custody statutes, click HERE.

CHANGES TO SUPERVISED PHYSICAL CUSTODY IN ABUSE CASES

Pennsylvania legislature has made significant changes to the custody statutes as they pertain to safety of the child.  These changes were based on efforts related to a nation-wide campaig regarding Kayden’s Law. One of the largest changes is regarding supervised physical custody as it pertains to risk of abuse of the child.  

If a court finds by a preponderance (more likely than not) of the evidence that there is ongoing risk of abuse of the child, there is a rebuttable presumption that the court shall only allow supervised physical custody between the child and the party.  A rebuttable presumption means that the court will lean toward supervised physical custody, but a party or the parties may argue that or present evidence that supervised physical custody is not required to insure the safety of the child.  

When determining abuse, an “indicated” report from a child protective agency for physical or sexual abuse is a basis for a finding of abuse under the custody statutes, but only after a new (de novo) review of the circumstances in the finding.  An indicated report is not the only way to determine abuse.  

If the court decides to award supervised physical custody under this section, it shall favor professional supervised physical custody.  Professional supervised custody is “custodial time during which a professional, with education and training on the dynamics of domestic violence, sexual assault, child abuse, trauma and the impact of domestic violence children, oversees the interaction between the child and the individual with those custody rights and promotes the safety of the child during their interaction.”

However, the court can award non-professional supervised physical custody if the court determines that the professional supervised physical custody is not available within a reasonable distance of the parties or the court determines that the party requiring supervised physical custody is unable to pay for the professional services AND the court designates an adult to supervise the custodial visit.  This adult must appear in person before the court, sign an affidavit of accountability, and the court must make a finding, on the record, that the individual is capable of promoting the “safety of the child.” 

It’s important to note that “safety of the child” is a new definition in the revised custody statute.  “Safety of the child” includes, but is not limited to, the physical, emotional and psychological well-being the child. 

To read the full revised statutes, click HERE. You can also read more about Kayden and how her death after a judge allowed unsupervised visitation has spurned the changes in the custody statute.

BROKEN ENGAGEMENT: WHO GETS TO KEEP THE ENGAGEMENT RING WHEN ONE PARTY IS STILL MARRIED TO SOMEONE ELSE

In Campbell v. Tang, a recent Superior Court of Pennsylvania decision, the Court issued a precedential decision on whether an engagement ring should be returned to the giver or if it should stay with the recipient, when the person proposing marriage is discovered to still be married to someone else.

In this case, Campbell and Tang met on an online dating site where Campbell represented himself as “divorced.” The parties began dating and then moved in together. Approximately 10 months later, Campbell proposed to Tang and presented her with a diamond engagement ring, diamond pendant necklace and matching diamond earrings. Tang accepted the proposal and jewelry.

The parties were to be married on May 12, 2018. Campbell asked Tang to sign a prenuptial agreement and she retained counsel to assist her with the negotiations. Approximately one week before the wedding date, Tang’s counsel discovered that Campbell was not actually divorced and was still legally married to his wife. Tang ended the engagement and left their residence and kept the jewelry presented to her during Campbell’s proposal.

In July of 2018, Campbell sued Tang for replevin, unjust enrichment, and conversion, asking for the return of the ring, necklace, and earrings. Tang counterclaimed on the basis of fraud, unjust enrichment, and conversion. The matter went to trial where Campbell admitted that he did not tell Tang that he was still married because “it was a personal thing” and that he “didn’t think it was that important.” He explained that his divorce proceedings had begun, but it was not finalized in order to allow his wife to keep receiving medical benefits. He admitted he didn’t tell Tang that he was not divorced before he proposed to her and that he knew he could not apply for a marriage license to marry Tang because he did not have a final divorce decree. Tang testified she did not find out Campbell was still married until her counsel learned of it one week before the wedding date. A decision was entered in favor of Tang in Campbell’s suit and in favor of Campbell in Tang’s suit. This decision allowed Tang to keep the jewelry.

The Court stated that “Pennsylvania has long held that an engagement ring or other gift given in contemplation of marriage is a conditional gift which does not vest until the contemplated marriage occurs and must be returned to the donor if either party breaks the engagement. See Lindh v. Surman, 742 A.2d 643, 644 (Pa. 1999).” However, this Court has to determine whether the rule applies when the donor of an engagement gift lacks the capacity to contract to marry at the time of the proposal and at all times during the purported engagement.

Marriage is a civil contract in the Commonwealth of Pennsylvania and both parties must have the capacity to marry, if either party is already married, any subsequent marriage is absolutely void. See Watt Estate, 185 A.2d 781, 785-86 (Pa. 1962). The Court found that Campbell at the time of the proposal and all times during the engagement did not have the capacity to enter into marriage with Tang. As such, the purported engagement is void ab initio, and any gift given in contemplation of the purported engagement constitutes an unconditional gift.

Since the proposal was deemed to be void ab initio, Campbell’s gifts of the ring, necklace, and earrings were not conditioned on the act of marriage and therefore constitute unconditional gifts that Tang is not required to return to Campbell.

DISCONTINUED TRUST PAYMENTS COUNTED AS INCOME FOR CHILD SUPPORT

Filing folders with first label reading “trust documents”

When calculating a child support obligation, the party’s net income may include more than their take-home income from their job.  Income can include certain disability payments, lottery winnings, and trust income among other sources of income. It can also include the amount of voluntarily reduced income or imputation of earnings.  

In Moore v. Hernandez, a non-precedential case filed on July 17, 2023, the court decided whether the calculation of Father’s net income should include $3000 in trust payments made to him during his marriage.  

The parties were married in 2009 and separated in September of 2020.  Mother/Wife filed for divorce in February of 2021.  In January of 2021, Mother filed a complaint for support of their one child.  Father also filed for alimony pendente lite (“APL”).  The support hearing officer made a recommendation of $954 per month and dismissed the claim for APL.  

During the marriage, Father received funds from a multi-million dollar trust that he claimed he was no longer receiving.  He argued that his mother controlled the trust and his mother stopped the payments to him after February 2021.  The trust documents were not entered into evidence. 

Father argued his case was similar to Fennell v. Fennell where income father could receive, but didn’t was not included as part of his net income.  The Court distinguishes this case from Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. 2000), where they addressed whether the father’s net income for child support purposes would include his proportional share of retained earnings of a subchapter S corporation, although he doesn’t usually take home these earnings.  In this case, the court did not include the retained earnings  because the father could not control whether the company would issue distributions or retain its earnings. However, “where the individual with the support obligation is able to control the retention or disbursement of fund by the corporation, he or she will bear the burden of proving that such actions were necessary to maintain or preserve the business.” Id. 

In Moore v. Hernandez, the Court opined that Father offered only his testimony that his mother controlled the trust and stopped payments to him without addressing whether he actually had the right to receive such payments. It was also noted that the cessation of the payments coincided with the Mother’s complaint in support. This case turns on credibility and the Court adopted the credibility determination of the support Hearing Officer, which were adopted by the trial court. The Court found that Father failed to introduce sufficient evidence to establish that the trust income he received was no longer available to him.

IS YOUR EX’S NEW FIANCE’S INCOME A DECIDING FACTOR IN A RELOCATION CASE?

IS YOUR EX’S NEW FIANCE’S INCOME A DECIDING FACTOR IN A RELOCATION CASE?

There are several factors a court must consider in deciding whether to permit a party to relocate with the child.  A recent non-precedential Superior Court case, Manning v. Eledge, J-A01049-22, an appeal from The Court of Common Pleas of Perry County, considered whether the calculation of a Mother’s fiancé’s income resulted in an error by the trial court in granting Mother’s petition to relocate.  

The parties are the biological parents of a child born in 2013.  The parties lived together for about a year after the child was born and before their split.  In 2015, there was an award of custody, granting Mother primary physical custody of the child, and Father, partial custody with some supervised and unsupervised custodial time.  After the parents’ split, the child resided with Mother and Mother’s fiancé, and fiancé’s infant son who was born in 2020.  At the time of the relocation hearing, Mother was also pregnant with a second child from her fiancé.  

On June 16, 2021, Mother submitted a notice of proposed relocation to South Carolina.  Mother provided the following explanation:

“Mother and [ fiancé ] have been offered an opportunity to purchase maternal grandparents’ home in Little River, South Carolina.  Said home will be larger for the growing family, in substantially better condition, and significantly cheaper than their current residence.  Fiancé has secured multiple job offers in Little River, which will result in higher, more steady income than he earns at his current seasonal job.”

Father filed a counter-affidavit objecting to relocation or the modification of the custody order.  A hearing was held on August 13, 2021.  The court also conducted an interview with the child and the guardian ad litem (the GAL had been appointed upon the petition of Mother in February of 2020).

The court granted Mother’s request to relocate with the child.  It modified the custody order and provided Father with partial physical custody one weekend each month, from Friday evening until Sunday at noon.  Father would also have six (6) weeks during the summer and certain holidays.  Mother and fiancé also were willing to escort the child from South Carolina to Pennsylvania on a monthly basis.  Father filed a timely notice of appeal. 

Father’s issues for review are as follows:

1. Whether the trial court abused its discretion and/or committed an error of law in considering all relevant factors of 23 Pa.C.S. Section 5337(h) when it entered an order of court which allowed the minor child to relocate to another state.

2. Whether the trial court abused its discretion and/or committed an error of law in improperly calculating the financial benefit to the relocating party and subsequently relying heavily on the financial factor.

3. Whether [Mother] presented evidence sufficient to establish that the relocation was in the best interest of the minor child.

Is negative impact the correct test?  Father asserted that the court erroneously changed the language of the Section 5337(2) which requires the court to consider the age, developmental stage, and needs of the child, as well as the likely impact relocation will have on the child’s development.  Father states that the court focused on whether the relocation “will not negatively impact” the child.  

Fiancé’s income the determining factor?  Father also asserted that the court erred in its evaluation of Section 5337(h)(6), which requires the court to consider whether the relocation will enhance the general quality of life for the party seeking relocation.  Father argues that his calculation of fiancé’s income differed from the court’s calculation and that fiancé’s income would not increase thereby failing to meet the requirement of demonstrating an improvement in the general quality of life of the party relocating.  

Relocation is defined as a “change in residence of the child which significantly impairs the ability of a non-relocating party to exercise their custodial rights.” 23 PaC.S.A. Section 5322(a). There are 10 factors a court must consider when determining relocation:

1. The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating 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 non-relocating 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 child.

The court determined found that the only special needs the child might have would be that she might be deemed gifted and would need some extra support and education.  It did not believe that was necessary at that time, but might be in the future.  The court also found the child to be in a very good developmental stage and that the relocation would “not negatively impact her educationally, emotionally, or physically.”  Father’s argue that the focus on whether there would a negative impact changed the language of the second relocation factor.  However, the  appellate court found that the trial court adequately considered Factor 2 and did not rely upon whether there was a negative impact.  

With regard to the fiancé’s job offers, the trial court considered his current income and the income for that would be earned from one of the job offers in South Carolina.  Mother, was not employed at the time of the hearing and her fiancé worked as a landscaper.  Their current residence was a two bedroom, one bathroom home in the middle of nowhere.  The new home would be near the beach, was four bedrooms and three bathrooms.  The family had saved money for the down payment and they were pre-approved for a mortgage on the property.  She also testified that they paid rent in PA at $975 a month and that the mortgage in South Carolina would be roughly $600 a month.  Fiancé’s new job would provide $40 an hour working 9-5 Monday through Friday.  His current job paid him $25 an hour working Monday through Saturday, sun up to sun down.  The court states that the fiancé’s income would be roughly $80K in South Carolina and $62K in Pennsylvania.   The court used a 50-hour week to determine the income for each job offer. The new job would also offer full benefits.  

Father argued that the court should not have based the income analysis on a 50-hour week for both jobs.  The appellate court dismisses father’s “hyper-technical analysis” of the facts of record.  The new job offered a higher hourly wage, fiancé would be able to work fewer hours, and provide full benefits.  The court found that ultimately, there was not enough evidence to show that the trial court abused is discretion in finding that the relocation would enhance the overall general quality of of life for Mother and the child. 

While Father does not argue in this case that the court erred in focusing on the fiancé’s income changes, it is important to note that the opinion suggests significant and substantial ties.  The opinion notes the facts that the parties are engaged and that Mother, fiancé, and the child had lived together since Mother and Father separated.  It also indicates that the couple is bound by a child they already have another that was on the way at the time of the hearing.  Mother was not employed and relied on the income of the fiancé and that would likely continue upon their move to South Carolina. The couple would also be purchasing her family home.  These facts suggest that court may have considered how strong the ties are between Mother and fiancé and that the likelihood of a separation of Mother and fiancé, unlikely.  

8 Reasons the Court Doesn't Have to Strictly Follow the Basic Child Support Guidelines

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Pennsylvania uses Support Guidelines (or a schedule) to provide parties with a measure of certainty about the amount of support they may have to pay or receive.  These guidelines insures that similar families who make about the same amount of money are treated about the same. There are many reasons that the court may deviate (either upward or downward) from the basic child support amount that the guidelines suggest would be the support obligation.

Generally, the trier of fact should deviate upward only when unique needs of the child are involved and downward only when the obligor can establish unique financial needs. Deviations allow the court to consider the unique circumstances of the parties in exceptional circumstances.  

In all cases, the trier of fact should consider the following deviations (Pa.R.Civ.P. 1910.16-5(b)):

1. Unusual needs and unusual fixed obligations;

2. Other support obligations of the parties;

3. Other income in the household;

4. Ages of the children;

5. Relative assets and liabilities of the parties;

6. Medical expenses not covered by insurance;

7. Standard of Living of the parties and their children;

8. Other relevant and appropriate factors, including the best interests of the children.

Other relevant and appropriate factors can include the following:

1. Significant income of the child;

2. Whether one or both of the parents live below the poverty line;

3. Increased costs of older children;

4. Responsibility of care for the parents (grandparents) of the party, etc.

When presenting these deviations, it’s important to understand that these deviations do not generally occur at the conference (or first level) level of a support case, unless by agreement. Generally, you will need to argue these issues before a hearing office (formerly called “masters”) or before a judge. You can argue that a deviation is appropriate by presenting either or both testimonial and physical evidence and sometimes even expert testimony. Failing to raise some of these issues may preclude you from arguing them at a later date.

You should speak with an attorney about the unique facts in your case to learn whether you may be entitled to a deviation from the basic child support guidelines.

Can Your Divorce Records Be Sealed?

Your divorce and custody cases are extremely personal and private. However, many people are surprised to learn that many family law proceedings may be viewed by the public and not in actually confidential.  In fact, most county courthouses (except in the age of COVID) are open to the public.  That means that with some exceptions, many hearings can be viewed by the general public. 

Why is this? Generally, our government has recognized that the court and information about how it makes it decisions should be open to the public.  This public policy concern often outweighs the individual party’s desire to keep their case private. 

Various states and local jurisdictions have rules for types of information that must be kept confidential and how documents must be submitted that include private information. For example, Pennsylvania’s Public Access Policy provides that the following information must be kept confidential: name and dates of birth of children (unless they are the defendant in a juvenile criminal matter, Social Security numbers, and financial matters). There are additional pieces of information that a court can deem private so you must review the your county’s local rules, as well.

However, if you wish to seal the proceedings in your divorce case, you must petition to the court to do so, following the local rules of your jurisidiction.  Your request should be “narrowly tailored” and should outweigh the public policy of an “open” court.  The court can decide whether it is appropriate to seal certain documents in your case. At times the court may only redact particular private or proprietary information.  

You should speak with an attorney about your case about whether and how information in your case my be sealed or kept confidential.  

LINKS:

http://www.pacourts.us/assets/opinions/Supreme/out/477jad-attach1.pdf?cb=1

Is There a Statute of Limitations on Enforcing a Marital Settlement Agreement?

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Is there a time limit on enforcing the terms in a marital settlement agreement? In a recent appeal, Melchiorre v. Melchiorre J.A17003-20, the Superior Court decided whether Wife was barred under several legal doctrines from enforcing the terms of the marital settlement agreement because she had waited nearly 17 years after its entry to file her contempt petition. Husband argued that under the statute of limitations and/or the doctrine of laches. Husband also argued in his appeal that the “Releases” terms in the agreement barred wife from bringing a petition for contempt. Finally, he challenged contempt was a proper remedy. Husband withdrew his fifth issue on appeal.

In this case, Husband and wife entered into a post-nuptial agreement on June 8, 2001, which was incorporated but not merged into the divorce decree of July 18, 2001.  Husband had non-vested stock options from his employer which totaled 1,269,317 shares, which were in his name only. Husband has non-vested stock options from his employer.  The agreement provided that upon vesting, Wife “shall be entitled to request that Husband sell one-half (1/2) of the shares exercisable at each time and Wife will be paid the net proceeds thereof after deduction of commissions and any applicable capital gains taxes to Husband.” The agreement further provided that within 15 days after demand, each of the parties would execute any and all written instruments necessary to effectuate their Agreement. 

Seventeen years later, Wife found her copy of the Agreement while going through her papers.  She realized that she never received her one-half share of the stock and she asked Husband about it.  He told her that it had been sold, but refused to give her any information about the proceeds.  Wife hired a lawyer who asked for the same. Husband failed to comply and Wife filed petition for contempt and enforcement.  

The trial court concluded that Wife’s claim was not barred by the statute of limitations, doctrine of laches, or waiver.  Based on the evidence presented, the court held Husband in civil contempt, imposed sanctions, and determined how he could purge himself of contempt by executing the necessary authorizations, providing documents, and remitting attorney fees of $5202. 18 to Wife within 30 days.  Husband filed reconsideration which was denied.  He filed a timely appeal.  He presented five issues.  Whether the trial court erred in denying Husband’s motion for judgment on pleading based on 1) statute of limitations, 2) doctrine of latches, 3) doctrine of waiver. And Then 4) whether the court abused its discretion by finding Husband in civil contempt for failing to acknowledge debt to Wife, and whether the court committed an error of law or abuse its discretion by conducting an evidentiary hearing and taking testimony from the parties on Husband’s motion for judgment on the pleadings. 

Statute of limitations and continuing contracts.

Generally the statute of limitations on a contract is four years.  However, the trial court found this was a continuing contract.  The test of whether a contract is continuing in nature as to take it outside of the statute of limitations is whether there was no definite time fixed for payment.  Husband contends that it was not a continuing contract because there was a definitive time fixed for payments, as well as requirement that Wife make a demand.  He argues that Wife had knowledge of the dates that the stock vested, which were on three separate dates: 1/1/2002; 1/1/2003, and 1/1/2004.  Husband asserts she had 4 years from the date that each set of stock vesting to make a request to Husband to see one-half of the stock.   

In support of his argument that Wife had the burden to make her demand, he cites K.A.R. v. T.G.L. , 107 A.3d 770 (Pa. Super. 2014). K.A.R. involved the sell of a business by Husband where Wife knew the date of the sale which occurred in 2004, but waited until 2011 to file a petition for enforcement.  However, the trial court in this current case found that this contract was a continuing contract because Wife agreed that she would not request her share before the stock vested and the Agreement did not provide a time limit on the request, and as such there was not fixed time for payment.  Additionally, Husband acknowledges that he owed his Wife a debt equal to one-half of the net proceeds from the sale of the stock, which tolled the statute of limitations on a continuing contract.   Crispo v. Crispo, 909 A. 2d 308, 313 (Pa.Super. 2006) provided that acknowledgment of a debt consistent with a promise to pay a debt may toll the statute of limitations or remove its bar.  

The trial court also concluded that Wife was under no obligation to request the sell of one-half of the stock when it was vested, but she was entitled to do so.  Husband, however, was obligated to pay Wife one-half of the net proceeds from the sale of the stock, whenever Wife tendered such a request.  Husband had the option to sell the stock for up to 10 years once the stock vested.  Since Husband was the sole owner, Wife would have no way of independently knowing when the stock vested or when it was sold.  Once Wife learned that he had sold the stock, she promptly requested her share of the proceeds,  Husband failed to comply.

Here, although the vesting dates were known, and Wife was entitled to demand that Husband sell her share of the stock at those times, she was not required to do so.  She was not compelled under the Agreement to demand her share at any particular time.  Husband also acknowledges that Wife was owed one-half of the net proceeds from the sale of the stock.   As such, Husband’s argument failed.

Doctrine of Laches

The doctrine of laches is one of equitable relief.  In order to sustain a claim under the doctrine of laches, one has to establish: (a) a delay arising from petitioner’s failure to exercise due diligence; and (b) prejudice to the respondents resulting from delay.  “Prejudice” requires that the respondent must have changed his position to his detriment.  The burden was upon Husband to prove this.  Husband did not notify Wife of sale nor did he pay to her her share of the proceeds when the sale was completed.  Having failed to do what he was contractually obligated to do he is not entitled to relief under the doctrine of laches.

Other Arguments

Husband also argued that the settlement agreement’s “Releases” provision prevents Wife from suing him “for the purpose of encforincg any of the rights relinquished under this paragraph.”  However, the Releases provision provides for an exception as provided in the Agreement.  It provides for wife to enforce the terms of the agreement.  

In his fourth argument, Husband also challenged the finding of contempt.  23 Pa.C.S. 3105(a) provides that a contempt proceedings is a remedy to enforce the agreement.  23 Pa. C.S. 3502(e)(9) “provid[es] that “If, at any time, a party has failed to comply with an order of equitable distribution, … with the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available… in order to effect compliance … find the party in contempt.”

To make a finding of civil contempt, one must prove:

1. That the condemner had notice of the specific order or decree which he is alleged to have disobeyed.

2. That the act constituting the contempt’s violation was volitional,

3. That the contemnor acted with wrongful intent.

The trial court found that Husband had notice of the Agreement. He willfully did not pay to wife her one-half share of the net proceeds from the sale of the vested options. The court also found that he acted with willful intent. The court also found that the statute provides civil contempt as a remedy to enforce an agreement where a marital settlement agreement was incorporated but not merged into a divorce decree.

Husband withdrew his fifth issue. 

Conclusion

This non-precedential opinion reminds us of one main thing: each party should know and keep track of their rights and obligations under their agreement, especially if there is a significant time-lapse between now and when a particular clause in your agreement can be enforced.

Is Your Own Technology Working Against You in Your Divorce or Custody Case?

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The convenience of smart phones, computers and the internet are fantastic tools for modern times. However, when contemplating a divorce or going through a custody battle, you may want to consider steps to be taken to protect yourself and your privacy. Here are a few tips to consider. 

Text Messages: You words may be used against you.  However, the opposite is also true, the text messages and emails that your spouse sends you can also be used against him/her.  It goes without saying that you should never threaten any type of violence.

You also want to keep any incriminating text messages and emails.  Also, note that your spouse may try to bait you into saying something that you will regret later. Consider whether you need to respond and whether your response can be limited.  

Apps: Another major factor to consider is your spouse’s access to location services. Some people have apps for their phone or vehicle that allow certain people access to their current location. Some of these apps have seemingly innocuous functions, like helping you find a misplaced phone or laptop. However, just like social media tracking services, anything and everything that can be used to track your current or previous locations (including GPS logs in your car), needs to be disabled if possible.

Social Media: You may want to change your social media passwords so that your spouse cannot access your accounts and post as you. Besides that first step, here are some extra security measures and tips that can help you maintain your privacy on social media sites like Facebook.

Consider whether you may want to make it more difficult for your spouse to view your posts by unfriending them and anyone who might help them view your profile. Review your account privacy setting to make sure only the people you want viewing your profile are able to do so. However, understand that this doesn’t mean your social media posts can’t be used against you; your spouse’s attorney may still be able to access them through discovery and other measures and present them in court. Because social media posts are never truly private, you should always be careful what you post. 

Email: You should consider getting a new email address and a new password. One of your first priorities should be ensuring that your spouse cannot see communications like emails and text messages to your lawyer. Also consider changing the passwords for any email accounts and the unlock codes for your phone and other devices.

While we are on the email topic: Work emails (especially if you own a business that your spouse may have an interest in) could be ‘discovered’ through requests. In other words, your spouse and/or his/her attorney could end up having access to emails you’ve sent from this address.  Here are some steps you could take to ensure your online security:

1. Create a new email address to communicate with your lawyer.

2. Change the passwords to all of your existing email accounts.

3. Check the connections to the cloud.

4. When you consult or hire an attorney, let them now if it is ok to send mail addressed to you to your home address.

Additional Security: At the same time you are changing passwords, you should consider setting up an extra layer of security known as two-step verification. This setting makes it so that any new logins or password changes will require a code (usually sent by text message to your mobile phone) to complete the login. This prevents makes it harder for someone to guess a password for a site and getting in without you knowing.

Passwords: Consider using a secure password manager such as 1Password, LastPass, or BitWarden. Not only do these password managers store your passwords securely, but many will generate secure passwords for you. 

It is important that you keep yourself, your identity and your accounts safe.

9 Things To Know About Spousal Support

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Many couples are aware that they can receive or be required to pay child support if the parties separate.  However, some are not aware of spousal support or understand how it is different from alimony.  Spousal support is definite by Pennsylvania statute as “care, maintenance, and financial assistance” which can be received once the parties separate, but not after the divorce is finalized.  23 Pa.C.S. Section 3103.Alimony is post-divorce support is determined by the analysis of the 17 factors in 23 Pa.C.S. Section 3701(b).  Here a few things you should know about spousal support.  

1. Either spouse can receive spousal support. Gender roles have conditioned many to believe that men are not or should not receive spousal support.  The PA statutes and guidelines do not discriminate on the basis of gender.  If the spouse seeking support is eligible to receive support, they may do so regardless of gender. 

2. You can receive support without filing a divorce complaint. While generally, it is more difficult to prove a claim for spousal support while you are still residing with your spouse, it is not impossible.  You must prove that the payor spouse is not contributing at all to the expenses of the household.  Generally, successful claims are where one spouse has left the marital home.

3. The burden is on the receiving spouse to show they are entitled to support.  The spouse hoping to receive support has the burden of showing that payor spouse either 1) agreed to the separation, 2) that payor’s spouse conduct justified the receiving spouse’s leaving the marital home, or 3) there was some other legal cause to justify a temporary departure.  

4. The amount of support is calculated using the Pennsylvania Guidelines.  The guidelines take into consideration the reasonable needs of the child or spouse seeking support and the ability of payor spouse to provide support.  The guidelines primarily look to the incomes and earning capacity of the parties, and may deviate from the guidelines for unusual needs, extraordinary factors, etc.  A court may take into consideration the length of the marriage when awarding spousal support.  A relatively short marriage (e.g. 2 months) may should not require a spouse to pay support.  There would be injustice to the spouse to pay this.  

5. Spousal support can take a form other than cash and may include the payment of other expenses.  For example, spousal support may include the continued payment of the mortgage on the marital residence, real estate taxes, or even a percentage of a spouse’s reasonable and necessary healthcare expenses.  

6. There are defenses to paying spousal support. If the spouse who would have to pay the support does not believe that dependent spouse is entitled to spousal support, they can assert defenses. The paying spouse would have to show by clear and convincing evidence that the dependent spouse’s conduct provides grounds for divorce. Marital misconduct, lack of consent or good cause for the separation are also defenses to paying spousal support.  The paying spouse can also argue one of the fault grounds. The fault grounds are: 

   1. Adultery

   2. Abandonment without cause for at least one year

   3. Cruelty, including domestic violence, which endangered the life or health of the injured and innocent spouse 

   4. Bigamy

   5. Conviction of a crime and imprisonment for two or more years, and

   6. Humiliating the innocent spouse in such a way that makes the marriage intolerable.

7. Cohabitation can cause spousal support to be terminated. It is important to note that cohabitation can cause the termination of spousal support, but a spouse may be entitled to alimony pendente lite, a different form of pre-divorce support that is based on need and not entitlement and can help the dependent spouse to pay his or her legal costs and maintained themselves until the finalization of the divorce. 

8. Spousal support ends with the grounds are approved, not when the divorce is final.  This is an important distinction.  If the parties are seeking to the divide the marital assets and have not reached an agreement, there will need to be a hearing before a divorce master.  The grounds for divorce (consent of the parties, separation, or one of the fault grounds) must be approved before the assets are divided.  Once the grounds for divorce are approved, the receiving spouse is no longer entitled to spousal support.  This can leave that spouse without enough means to continue to fight for the equitable distribution of the assets, a very important and sometimes expensive part of the process.  Alimony pendente lite, which must have been raised prior to the approval of the grounds, can provide that support. 

9. How spousal support is calculated.  The PA Guidelines provide support a formula for determining the amount of spousal support. 

   1. Where there is no child support claim: The domestic relations section will take 33% of the higher earning spouse’s net income (as determined by the statutes, not their take-home pay), and subtract 40% from receiving spouse’s income.   In an example where Wife’s net monthly income is $6000 and Husband’s income is $3000:  ($6000 x 33%) - ($3000 x 40%) = ($1980 - $1200) = $780.

   2. Where there is a child support claim: Where there is a child support claim in addition to the spousal support claim, the percentages use to run the calculation are lower.  Instead we use 25% of the higher earning spouse’s net income and 30% of the receiving spouse’s income:  ($6000 x 25%) - ($3000 x 30%) = ($1500 - 900) = $600.  The child support obligation and spousal support obligation will be added together to create one Order.

There are many facts, defenses, and deviations to be considered in the entitlement, determination, and calculation of support.  You should always speak with an attorney about the facts specific to your case to determine your rights and obligations. 

An Involuntarily Psychiatric Commitment, Medication Control, and a Postnuptial Agreement.

A recent PA Superior Court Case provides guidance on the analysis of duress claims to invalidate marital settlement agreements.

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In recent a PA Superior Case, Lewis v. Lewis, (Pa. Super. 2020), a case with interesting facts provided additional insight in the analysis of duress with respect to marital agreements. In this case, Husband petitioned the court to enforce the post-nuptial settlement agreement and for Wife’s contempt of that settlement agreement.  Wife filed a counter-petition complaining that she signed the settlement agreement under duress due to “constant fear of Husband’s punishing retribution, in a daze from his manipulation of her medication and without opportunity to consult an attorney.”  She also alleged fraud, claiming that Husband told her that the document was needed for his job and not a settlement of the marital property. 

THE BACKGROUND

Husband (46) and Wife (20) met in 2013 when he hired her to care for his two young children.   They married after three weeks.  Wife dropped out of college and became a stay home mother to Husband’s two children.  Within a year, the couple had their own child.  There were numerous legal filings including a June 2016 Protection From Abuse (PFA) order granted in favor of Husband against Wife.  Husband also claimed she violated the Order.  There were criminal charges, Wife was found in contempt, and she ended up incarcerated.

The couple’s story takes a turn during a July 2018 PFA hearing where there was evidence that Husband was actual perpetrator of the abuse.  According the Opinion, Husband used his June 2016 PFA order “as a weapon against wife.”  He would invite her back into the marital home and file contempt charges against her. The trial court found that “Husband had been playing the system, using the Monroe Court of Common Pleas as one tool in furtherance of his very calculated, complex, web of domestic violence, control and intimidation against Wife.” (See Trial Court Opinion).  Wife was granted the PFA and was awarded exclusive possession of the marital residence and temporary sole custody of their child together.  Husband appealed the decision, and the court affirmed.

According to the opinion, in December 2016, following “Husband’s extensive abuse, including his manipulation of Wife’s mental health and medication, Wife’s attempted suicide.”  Husband brought up the idea of Wife signing a settlement agreement, which he assured her was simply a paper trail for his job with the federal government.  Wife was released from the hospital in December 2016 but continued to have difficult with her mental and physical state.  Husband continues to disperse her medication which made her feel nauseous and apathetic.  Twice in January of 2017, Wife met with her psychiatrist to change her medication.  Husband forced his attendance at these appointments.  

According to Wife, on the day of the last appointment, January 13, 2017, Husband presented her with a post-nuptial agreement in the car after the appointment and allowed her ten minutes to review it as he drove her to a notary public.  He again told her that it was only a paper trail for work and they would not get a divorce.  Wife said she was uncomfortable and did not want to sign anything without consulting an attorney, Husband stated, “If you dare get a lawyer, I’m divorcing you and you will never see your daughter again.”  Wife said she believed him due to his past infliction of punishments on her when he disobeyed her.  Wife signed and Husband waited in the car while she went into the notary’s office.  After that, Husband drove to his lawyer’s office, entered alone and had his signature notarized.  Husband then refused to give Wife a copy of the signed agreement.  

Once Wife received the PFA granting her exclusive possession of the marital residence, Husband filed a petition to enforce the agreement, asserting his right to exclusive possession of the marital home and that Wife was in contempt of that agreement.  Wife countered challenging the validity of the agreement on the grounds of duress and fraud in the inducement.  The trial court issued an order invalidating the settlement agreement on the grounds of duress and fraud and dismissed Husband’s petition as moot. 

THE DEFINITION OF DURESS

Settlement agreements are guided by contract laws.  Fraud, misrepresentation, or duress are the reasons that an agreement may be invalidated.  Because contracts require mutual assent to enter into a contract, it cannot exist where there was duress.  The burden is upon the party trying to invalidate the agreement to show by clear and convincing evidence to avoid or nullify it.  

The PA Supreme Court has defined duress as follows: “that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.  The quality of firmness is assumed to exist in every person competent to contract, unless it appears by reason of old age or other sufficient cause he is weak or infirm.  Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness.  Moreover, in the absence of threats of actual bodily harm, there can be no duress where the contracting party is free to consult with counsel.” Carrier v. William Penn Broadcasting Co., 233 A.2d 519, 521 (Pa. 1967).

According to the opinion, in their “review of the relevant Pennsylvania case law, no spouse has ever convinced a court to void a settlement agreement on grounds of duress.” (pg. 14).  The Court acknowledges that in many cases, a party may have faced unseemly pressures to sign an agreement, but the court concluded that they did not amount to duress in the legal sense.  In one case, Simeone v. Simeone, Wife alleged she was forced to sign a prenuptial agreement on the eve of her wedding, and that she could not seek counsel without the trauma, expense, and embarrassment of postponing the wedding.  In another case, Adams v. Adams, wife alleged that she had low self-esteem, an abusive husband, fear of the judicial system, and received treatment for ADD and alcoholism.  The trial court and Superior Court affirmed the trial court.

We can break down the duress analysis into three parts. 

1. Duress or restraint

2. Whether a person of ordinary firmness could overcome the aforementioned degree of restraint and danger.

3. Is the party free to consult with counsel?

The court found that because of Husband’s actions in the past including making her sleep outside in the past, making threats and then making good on those threats, there was duress.  Husband’s specific threat to Wife about not seeing her child while inside of the car on the way to notary was a specific threat.  The court also notes how Husband had exploited the court system.  And while the there was no “actually inflicted” physical abuse in the car, Wife convinced the court that the restraint on her will was “threatened” and the danger to her person was “impending.”  

The second part of the analysis concerns whether the restraint or danger was severe enough to overcome the mind of a person of ordinary firmness.  The trial court found that Wife did not possess the “ordinary firmness” on account of husband’s control over Wife through intense and sustained domestic abuse, Wife’s attempted suicide in close proximity to the execution of the settlement agreement, and Wife’s heavy medication.  

The Court examines whether the test of “ordinary firmness” should be an objective or subjective test.  The Court opines that the test starts out as objective, but the presumption of “ordinary firmness” can be rebutted, which then shifts the analysis to a subjective test.  In the Carrier case, the Court found that “the quality of firmness is assumed to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm.” The unique nature of a marriage supports the use of a subjective tests.  Parties to a marriage contract “do not quite deal at arm’s length, but rather at the time the contract is entered into stand in a relation of mutual confidence and trust” Simeone, 581 A.2d at 167.  Parties to a marriage contract have intimate knowledge about whether the part is weak or infirm. 

In this case, Wife had been under psychiatric care for some time before the execution of the settlement agreement.  Husband “forced” his way into the psychiatric appointments in spite of Wife’s protests, successfully suggested an unnecessary diagnosis, dispensed Wife’s medications which he kept locked away, and refused to tell her what they were or what they were for.  Wife then attempted suicide after Husband told her leave the house, she would never see her daughter again, and urged her to kill herself.  Husband then involuntarily committed her to a psychiatric hospital and then mentioned for the first time signing a separation agreement.  Wife was still physically and psychologically unstable.  After her release from the hospital, Wife continued to feel unstable, and though her psychiatrist changed her medication, Husband continue to dispense the medication to wife.  After leaving Husband, Wife was able to obtain a PFA and take control of her own mental health.  According to Wife, none of the antidepressants or mood stabilizers were necessary.  

The Court found that given Husband’s systematic mental and physical abuse and the side effects of the unnecessary medication that Husband controlled, Wife rebutted the presumption that she possessed ordinary firmness at the time she signed the agreement and therefore the Court could consider her specific frame of mind. 

Finally, the Court turns to whether she was free to consult with counsel.  This final part of the analysis is often where many claims fail.  No matter how severe the actions or tactics were, if the party was free to consult with an attorney, the claim fails.  The burden is on the party seeking to invalidate the agreement that to prove that she did not have an opportunity to consult with an attorney.  The opportunity to consult with an attorney may occur long before a proposed agreement is ever reduced to writing.  In this case, the Court found that Wife had no time to consult with an attorney.  Wife claimed Husband told her that she would never see her daughter again if she consulted with an attorney. The agreement was given to her during the car ride from her therapist and she was taken from there immediately to the notary. 

The Court upheld the trial court’s opinion to invalidate the post-nuptial agreement on the basis of duress and fraud.  

Custody and Child Support Beyond the Age of 18

How long your responsibilities (and rights) to the custody and financial support of your children will depend on the statute that you are looking at. The rules are different for the child custody, child support, and dependency (aka child services) statutes.

A recent Superior Court appeal decision highlights the importance of a child’s age during a custody matter.  In M.B.S. v. W.E., 2020 PA Super 118, mom filed an appeal of a trial court opinion that gave sole physical custody of the couple’s then 16-year-old child with mental impairments to father.  While the appellate court ultimately found that the trial court had erred in granting father’s reconsideration without a hearing or finding on the custody factors, it noted that due to child turning 18 in the same month it was making its decision would render the issue moot. It is also worth nothing that the child would be in the 10th grade and still in high school.  There could be no relief at the lower court if the case were to be remanded back to the trial court because the child would be 18 and the court would not have subject matter jurisdiction of the case.  

This opinion allows us to discuss what is a child or an unemancipated individual and how this is different under the custody, support, and juvenile statutes.  

The PA child custody court defines a child as an unemancipated child younger than 18.  This is contrast to the PA child support statute when it considers liability for support.  PA C.S. Section 4321(2) provides that parents are liable for the support of their children who are uemancipated and 18 years of age or younger.  Section (3) also provides that parents may be liable for the support of their children who are 18 years of age or older.  

Generally, the courts have held that a duty of support continues until a child reaches the age of 18 or graduates from high school, whichever occurs later.  There are exceptions this rule.  While the statutes do not provide a definition of emancipation, caselaw does indicate that circumstances to be considered include “the child’s age, marital status, ability to support herself or himself, and the desire to live independently of his or her parents.”’ Nicholason v. Follwiler, 735 A.2d 1275 (Pa. Super. 1999).  Emancipation is a question of fact.  Therefore, a parent could be responsible for support of their adult children.  While the court may order ongoing support for a child who has physical or mental impairments as it did Geiger v. Rouse, 715 A.2d 454 (Pa. Super. 1998), the court will not order a finding of custody.  The parents must seek other remedies when it comes to “custody” (such as guardianship).  

However, contrast this with a child who has been adjudicated dependent by State (in the control of child protective services). In these situations, a child can also be an individual who is under the age of 21 who committed an act of delinquency before reaching the age of 18, is under the age of 21 and was adjudicated dependent before reaching the age of 18 years, who has requested the court to retain jurisdiction and who remains under the jurisdiction of the court as a dependent child because the court has determined that the child is:

(i) completing secondary education or an equivalent credential; (ii) enrolled in an institution which provides post secondary or vocational education; (iii) participating in a program actively designed to promote or remove barriers to employment; employed for at least 80 hours per month; or incapable of doing any of the above; or (iv) due to a medical or behavioral health condition, which is supported by regularly updated information in the permanency plan of the child.  

Finally, with regard to post-secondary education, courts have recognized the obligation of a parent to continue to the college education of a child as indicated under a marital settlement agreement.  Although 23 Pa C.S. Section 4327 provided that a parent whether married, divorced, or unmarried may be responsible for the education of the child. The PA Supreme Court found the statute to be unconstitutional in Curtis v. Kline 542 Pa. 249, 666 A. 2d (1995), The Supreme Court held that Section 4327 violates the equal protection clause  of the Fourteenth Amendment and is thus unconstitutional. PA Legislature has not yet repealed the section.  

It is important to note that each statute has its own definitions which often are further defined or clarified by case law.  An understanding of those definitions, clarifications, and rule applications are essential to planning your strategy and getting an appropriate result.  

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

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The Case of Rosiecki v. RosieckI

In this Superior Court opinion, Rosiecki v. Rosiecki, PA Super 92, Husband tried to terminate his $900 monthly alimony payments to Wife. The previous court found that it did not have the authority to modify the terms of the Husband’s alimony obligation because it was an agreement made by the parties and not court-ordered.  Husband also argued that the court should have held an evidentiary hearing before denying his petition to terminate his alimony payments.

The parties entered into a marital settlement agreement while they were before the Master on December 7, 2009.  The marital agreement provided that Husband is to pay Wife $900 in alimony until such time that all of the four properties in the estate are sold.  The agreement specifically provided the alimony payment would be reduced by specific percentages based upon the sale of the properties with each property having its own specific percentage. Additionally, upon the sale of the each property, Wife would receive 35% of Husband’s net interest in that property. The agreement was incorporated into but not merged into the final divorce decree that entered on January 21, 2010.  

On January 7, 2019, Husband filed an emergency petition for Special Relief to Terminate Alimony and a Request for Hearing. The properties had not yet been sold.  He argued that he could not afford to make alimony payments to Wife because he was out of work and experiencing health problems.  He also argued that he did not understand the settlement as it relates to the payment and/or termination of alimony.  He also believed that the terms in the agreement were incorrect and in error.  He also argued that the agreement did not take into account all of the resources and income of Wife or Husband’s necessary expenses and loss of income. 

WIFE MAKES MOTION TO DISMISS HUSBAND’S PETITION

At the hearing on April 10, 2019, Wife made an oral motion to dismiss the petition.  The trial court directed Wife to file a written motion and ordered Husband to file a response.  In her motion, Wife argued that the trial court did not have statutory authority to modify the terms of the alimony obligation because it arose from the parties’ agreement and not from a court order.  In his response, Husband incorporated the same arguments that he raised in the original petition.  He also requested a hearing and for the taking of testimony and the creation of a record.

The trial court found that the “the terms of the agreement… are clear and unambiguous and provide no language for modification or extension or termination.”  It also provided that the “alimony awarded is a contractual agreement entered into by both parties, who swore under oath understanding of the agreement. Additionally, there is no evidence of fraud, mistake, or duress.  Therefore, this court cannot modify the terms of the agreement.” 

Husband filed a notice of appeal on May 31, 2019 and raised 13 issues. The court reordered as follows:

1. Did the trial court err in failing to find that 23 Pa.C.S. Section 3701 contains a provision for the modification, suspension, or even termination of alimony, and in failing to find that it had both the jurisdiction and power to consider the Emergency Petition for Special Relief to Terminate Alimony and Request for a Hearing Filed by [Husband]?

2. Did the trial court err in granting the [Wife’s] Motion to Dismiss [Husband’s] Petition to Terminate Alimony?

3. Did the trial court abuse its discretion or commit an error of law in failing to permit the calling of witnesses, the presentation of evidence and the cross-examination of witnesses before issuing its May 1, 2019 order?

4. Did the trial court abuse its discretion or commit an error of law where it appears from a review of the record that there is no evidence to support the [trial] court’s findings?

Husband’s argument relies heavily on 23 Pa.C.S. Section 3105 on the effect of agreements between the parties which provides:

(a)  Enforcement.--A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.

(b)  Certain provisions subject to modification.--A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.

(c)  Certain provisions not subject to modification.--In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

The court found that because the alimony obligation arose from the marital settlement agreement that was incorporated but not merged into the divorce decree it survives the decree and is enforceable at law or equity.  The agreement is governed by the law of contracts unless the agreement provides otherwise. The court goes on to state that the terms of the agreement cannot be modified by a court unless there is a provision in the agreement that specifically provides for judicial modification.  

A settlement agreement is “not governed by statute, but [by] express mutual agreement of the parties.” See Woodings v. Woodings, 601. A.2d 854, 859 (Pa. Super. 1992).  Alimony payments, therefore, are “not to be subject to modification by the court” unless the agreement contains a “specific provision to the contrary.” 23 Pa.C.S. Section 3105(c).  The purpose of marital settlement agreements is to encourage agreements by the parties in that the court will encourage them as written.  See Egan v. Egan, 125 A. 3d 792, 798 (Pa. Super. 2015).  

HUSBAND REQUESTED A HEARING TO PRESENT EVIDENCE AND TESTIMONY.

Husband also argued that the trial court should have held a hearing where he could present evidence and witness testimony.  Aside from attempting to prove his “changed circumstances,” Husband also wanted to show the “intent of the parties to the martial agreement.”  In his emergency petition, Husband outlined the evidence he planned to submit which went to the change in circumstances. Therefore, even if the court accepted his allegations as true, Husband had no legal basis for relief because a marital settlement agreement that does not specifically allow for modification cannot be changed. The trial court also found that the terms were clear and unambiguous and there was no need for a hearing to determine the parties’ subjective intent.  Finally, since Husband did not allege fraud, misrepresentation, or duress he failed to raise any claims that could entitle him to relief.  

The court upheld the trial court’s conclusion that Husband was not entitled to an evidentiary hearing or a modification to the alimony payments.   

FORGET THE ENGAGEMENT RING, GIVE ME BACK MY DEPOSIT FOR THE HOUSE

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The Pennsylvania Superior Court recently addressed how gifts in anticipation of marriage should be distributed when the marriage does not take place.  Usually, we are thinking about engagements rings, but what about the down payment for a house? In McGoldrick v. Murphy, 2020 Pa. Super 24 determined whether the down payment was recoverable once the parties split.

The parties, Megan and Joseph, began dating in July 2010 and started living together a few months later. They lived together in Joseph’s residence for 6.5 years. In approximately December of 2015, Megan and Joseph decided to marry. They also decided to look for a home to purchase together and put Joseph’s plan on buying an engagement ring on hold.   In late 2016, the couple purchased a home for $205,000. Because Joseph had the financial means necessary to close on the home and Megan was more creditworthy than Joseph, the two agreed that Joseph would withdraw the needed money from his retirement fund and Megan would solely execute the mortgage note, though the record reflects that both parties executed the mortgage. 

JOSEPH WITHDRAWS $52,000 FROM HIS RETIREMENT ACCOUNT FOR THE DOWN PAYMENT AND SIGNS LETTERS STATING THAT HE DID NOT EXPECT REPAYMENT.

As part of the mortgage loan application, the bank required Megan and Joseph to sign gift letters to document the source of approximately $52,000 that Joseph withdrew from his retirement account in two transactions. In the letters, Joseph referred to Megan as his This “fiancé” and stated that “no repayment of the gift is expected or implied in the form of cash or by future services of the recipient.”

On December 29, 2016, Megan and Joseph closed on the home, taking it as joint tenants with the right of survivorship. They began to share in the home-related expenses and made renovations.  They moved in in March of 2017.  Joseph gave Megan an engagement ring in June of 2017.  On March 10, 2018, however, Megan ended the engagement and returned the ring to Joseph. Joseph remained in the home and stopped paying his share of the expenses.  Megan assumed payment of all of those expenses until she permanently moved out in August 2018.

THE PARTIES AGREE TO SELL THE HOUSE BUT CAN’T AGREE ON WHO GETS THE WHAT.

Shortly after Megan returned the ring in March of 2018, Joseph filed a complaint in equity- partition. In September of 2018, the parties agreed to list the home for sale and that the proceeds would be placed in escrow with the title company and that the trial court would determine the division of the assets.  The home sold at a loss yielding $41,884.86 and they received a homeowner’s credit of $101.  The parties could not agree on the division. The court then award $5688.43 to Megan, which was 50% of the money she spent on home-related expenses from April through to October 2018.  Joseph was awarded $36, 297.42 to Joseph which was the remaining amount.  

Megan filed a post-trial motion, which was denied.  Megan then filed a notice of appeal.  Megan raised the following issues:

1. With all parties and the trial court in agreement, have the requirements of a Part 1 Partition Order been met?

2. Does a signed writing, “Gift Letter,” which expressly identifies the donee as “Fiancé,” and states that “no repayment of the gift is expected or implied in the form of cash or by future services of the recipient” trump prior court holdings of gifts in contemplation of marriage which did not involve express, written waivers?”

Pennsylvania Rules of Civil Procedure 1551-1574 split a partition action into two, distinct, chronological parts.  The first part of the Partition is to “a possessory action; its purpose and effect being to give to each of a number of joint owners… his [or her] share in severalty.”  See Johnson v. Gaul, 228 Pa. 75, 77 A. 399, 400 (Pa. 1910).  

The second order, does one of three things: “(1) divide the partitioned property among the parties to sell their interest in the land to one or more parties, or (3) sell the land to the general public and distribute the proceeds among the parties.”  Kapcsos v. Benshoff, 194 A.3d at 141-142. 

Megan theorized that by Joseph starting the partition  action and the parties then agreeing to sell the home and, if necessary, have a judge determine the division of the proceeds, the sale and the agreement now changes the ownership of the proceeds to a tenants in common, which means that they should equally split the the proceeds.  The trial court did not agree with this argument. 

WAS THE $52,000 THAT JOSEPH CONTRIBUTED A  CONDITIONAL GIFT?

The next issue is whether the $52,000 that Joseph contributed was actually a conditional gift in contemplation in marriage.  Recall the letters that Joseph and Megan signed that indicated that it was a gift and there was no intention to repay back the money.  The court turned to Nicholson v. Johnston, 855 A.2d 97, 101-102 (Pa. Super. 2004) which affirmed previous caselaw and Restatement (First) of Restitution Section 58 (1937) which provides hat gifts made in the hope that a marriage contact will result are not recoverable absent fraud.  However, there is an exception for engagement rings, family heirlooms, or things intimately connected with the marriage.  The Reporter’s note suggests that the focus is on whether the money or things transferred in contemplation of marriage in the sense that they were to be used by the parties in marriage. Gifts of considerable size are assumed to be conditional.  Fault is also not an issue.

The Court held that the $52,000 gift was clearly for the purpose of purchasing a marital residence for Joseph and Megan to live in as husband and wife. The gift letters were necessary to achieve that purpose and did not extinguish the condition of the occurrence of marriage. Therefore, when the relationship between Megan and Joseph ended, the gift’s purpose could no longer be achieved. When the house sold, Joseph was entitled to recover the remaining escrow balance in the amount of $36,297.42 which represented partial reimbursement of his payment of the money needed to purchase the home.

What does this mean for you? If you are considering a large purchase with your fiancé, consider options to protect both of you in the event the marriage does not take place. If you have questions regarding this issue, call Kinchloe Law at 215-564-1580 so that we can assist you in the assessment of your current situation and to discuss your options.

Coronavirus, Custody Exchanges, and Emergency Filings

A recent order by President Judge Idee C. Fox addresses custodial exchanges during the Governor’s Stay-at-Home Order. It also addresses emergency custody petitions. Both are addressed in this video, but a link to the Order is provided. below.

Here is a link to the documents referenced in the video:

First Judicial District of PA Admin. Governing Board Order No. 18 of 2020

Emergency Petition, Domestic Relations Information Sheet, Criminal History Verification Form

Email to Send Petition and Attachments: custodyemergency@courts.phila.gov

Contempt of a Support Order and Suspended Sentences As Punishment

Can the court impose a suspended sentence for contempt of a child support order? In a recent Superior Court decision, Thompson v. Thompson, the Court determined whether a trial court could impose a suspended sentence for civil contempt thought it is not expressly permitted as a form of punishment under 23 Pa.C.S. 4345.  

Here is the background of the case. Mother placed her two children in the custody of her mother. Grandmother then requested child support from mother. The trial court computed mother's support obligation pursuant to the child support guidelines and entered an order. Mother fell behind in her payments. The County then filed petitions for civil and indirect criminal contempt against mother. Trial court ordered mother to remain current with her payments and added an additional monthly amount for her back support.

Mother again fell behind. Grandmother asked the County to terminate the support case, but the County officials declined to do so and filed another contempt. Prior to the hearing on the contempt petition, mother and the County came to an agreement. Mother admitted that she was in civil contempt. Mother agreed to stay current with her payments, acknowledged she had the ability to make the payments and agreed that if she failed to remain current, a bench warrant would be issued and she would serve a six-month jail sentence. 

Mother filed an appeal and argued that a suspended sentence was not an allowable punishment under Section 4345 and was therefore an illegal and unenforceable punishment.  In its analysis the Court noted the law was not ambiguous and provided three express punishments that were permitted in this situation. Those included imprisonment for up to six months and a fine not to exceed $1000 or probation for a period of up to one year. The statute does not include any language allowing the trial court to have any discretion to impose any other form of punishment.  

In a dissenting opinion, Judge Baer opined that since a suspended sentence could constitute probation and probation is an allowable form of punishment under Section 4345, a suspended sentence is not an illegal form of punishment.  Judge Mundy joined in that opinion.  

It is very important to understand the agreements you enter into and the consequences of breaching or breaking that agreement. 

Medical Marijuana Use and Custody

Medical marijuana use is a hot topic all over the country. With so many states allowing the legal use of marijuana for medical purposes, and many legalizing the use recreationally, we will start to see more and more cases that address the use of marijuana in different areas of law. In a recent case, H.R. v. C.P. 2019 PA Super. 357, in the Pennsylvania Superior Court, this Court addressed the use of medical marijuana in a child custody matter. 

Father and Mother (H.R. and C.A.R.) met while both were students in college. Both Father and Mother struggled with substance abuse. Father's recreational use of marijuana was a recurring issue during the custody battle.

After father's and mother's relationship dissolved, pursuant to a stipulation of the parties, grandparents maintained primary physical custody after mother alleged father had fed the child a marijuana-laced graham cracker. Mother and father and grandparents all shared legal custody. Mother had physical custody of up to four hours on alternating weekends. Father had physical custody for three-hour periods of supervised visitation on alternating Saturdays. 

Father filed a motion to modify the custody stipulation. The trial court awarded grandparents physical custody pursuant to the terms of the initial stipulation except that it conditionally stopped  the supervision requirement for father's periods of visitation "upon father's willingness to demonstrate sobriety and continued abstinence."

Father filed yet another motion arguing that the current custody arrangement was contrary to the child’s best interest and that his receipt of a medical marijuana license meant that the trial court should no longer weigh his marijuana use against him. Grandparents filed their own motion challenging the findings regarding father's medical marijuana license and the reliance upon it to discount father's history of recreational drug use.

The trial court ruled that, based on the best interest factors and the concerns raised by grandparents, it would continue the prior custody arrangement and reinstate the drug testing condition for father's exercise of unsupervised custody. The trial court held that the custody officer erred in relying on father's certification that he was licensed to use medical marijuana since father failed to submit medical evidence that he had an affliction necessitating its use or the effect that his use would have on his parenting ability.

On appeal, the court affirmed the trial court's custody order. The appellate court rejected father's apparent contention that the Medical Marijuana Act barred the trial court from considering father's use of marijuana pursuant to a medical marijuana license in the trial court's best interest determination. Instead, the appellate court noted that the act expressly reaffirmed that courts could consider a parent's marijuana use in the best interest analysis. Courts can also consider a parent's use of other legal narcotics to treat chronic pain in determining whether such use impacted a child's best interest. The court held that the trial court did not abuse it discretion to consider father's marijuana use given his history of substance abuse and alleged incidents of having child ingest marijuana.

In summary, the courts are not stopped by Medical Marijuana Act from considering a parent's legal use of marijuana pursuant to medical license, particularly where parent had history of substance abuse and where there were alleged incidents of exposing the parent's child to marijuana. 

If you have questions regarding this issue, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

Non-Biological Father Determined to be the Legal Father: A Case of Paternity by Estoppel

In a recent case S.M.C. v. C.A.W., 2019 PA Super 318, the Pennsylvania Superior Court addressed the doctrine of paternity by estoppel. Under this doctrine, a person can be ordered to pay child support for a child that is not his biological child. 

In the case, a man and a woman lived together with the woman’s daughter for approximately 12 years (since the child was a baby). Although he knew he was not the biological father, the man held himself out as the child’s father, supported the child financially and claimed the child as a dependent on many of his tax returns. He began living with child and her mother when the child was approximately 1 year old. According to the opinion: “from April 2003 through January 2015, the woman and the child lived together with the man in the man’s home. The appellant held himself out to be the child’s father and performed parental duties on the child’s behalf, treating the child the same as his own biological daughters.” The man also referred to the child as his daughter when introducing her to others and the child referred to him as her father or her “daddy.”

According to the opinion, the court determined that the child suffered a serious adverse emotional impact when the man broke up with the mother and ceased contact with her. The court also concluded that it was in the child’s best interest to apply the paternity by estoppel doctrine against the man and require the man to pay child support. A temporary child support order was entered. The sole question in the appeal was whether the trial court abused its discretion in concluding that the man owed a duty of support under the paternity by estoppel doctrine. Previous Court opinions have made it clear that the lack of biological relationship does not defeat the application of paternity by estoppel. According to the Supreme Court, the validity of the paternity by estoppel doctrine rests only where it can be shown, on a developed record, that it is in the best interests of the involved child.

Because family law cases are fact sensitive, the application of the doctrine, by reviewing the appellate case law, is complicated. If you have questions regarding this very difficult issue, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

Name Changes and Children: Court Considers Notice Where Mother Seeks to Change Name of Biologically Female Child to a Traditionally Male Name

In a recent case filed in this Family Division of the Court of Common Pleas of Lebanon County, the mother of a 16-year-old biologically female child has requested that the child’s name be changed to a traditionally male child’s name. Because the mother could not provide proof of notice to the biological father of this proposed name change, the court has put the matter on hold. The biological child’s legal father must be notified of the request for name change. Name changes in Pennsylvania are governed by 54 Pa. C.S.A. 701. Because the subject matter addressed in this case has not been presented to this court previously, the court found two cases from other jurisdictions and also researched medical doctrine.

The court held that seven items set forth in another case regarding a child’s best interest were relevant. These factors include the child’s age, length of time the child had tried to use the proposed name, the potential anxiety or discomfort that would result from using a name that did not match the child’s outward appearance, the child’s mental health counseling, whether others in the family or community utilize the child’s proposed name, the child’s preference and motivation for seeking a name change, and parental support for the name change.

As previously indicated, Pennsylvania law requires that both parents be given notice of any hearing that implicates a child’s change of name.  Furthermore, if the legal father opposes the name change request, the court would want to hear and analyze the father’s motivation and reasoning for this opposition.  

The court has indicated that no final decision regarding the name change could be made until the court hears from the father and has adequate time to analyze the situation. The medical and psychiatric communities are divided about the subject of gender transformation. Therefore, the court has indicated that it will conduct a more comprehensive inquiry to the child as well.