Pennsylvania

Family Lawyer VOLUME 32 ISSUE NO. 1

IN THIS ISSUE FROM THE CHAIR..............................1

March 2010

FROM THE CHAIR By Jeffrey M. Williams, Esq. [email protected]

EDITOR’S COLUMN ..........................3

An Interesting Day in Harrisburg

Case Notes 1. Campbell v. Walker ..............................5 2. Miller v. Miller ....................................7 3. Harcar v. Harcar..................................9 4. In Re: K.T.E.L. ..................................12 5. Mackay v. Mackay..............................14 6. DeBoer v. Slusser ..............................17 7. McMullen v. Kutz ..............................18 8. M.A.T. v. G.S.T. ..................................20 9. R.M.G., Jr. v. F.M.G............................22 10. Silver v. Pinsky ................................23

On Feb. 4, I testified before the House Judiciary Committee’s Family Law Sub-Committee. The hearing was held on three bills (House Bill 1639, House Bill 463 and House Bill 418) all addressing proposed modifications to custody laws in the commonwealth. Overall, it was a great experience and your PBAFLS team (me and two former Section chairs, Ned Hark and Mary Cushing Doherty) made a presentation that was critiqued by various members of the House of Representatives as well-organized, insightful and comprehensive.

ARTICLES AND COMMENTS: Changes to Pa. Support Guidelines ......26 The Unified Family Court ....................28 Cash Flow for Support Purposes..........29 “The Taxing Side of Divorce” ..............35 Retirement Plan Participants’ Deaths ..38 The Effect of Islamic Family Law ........41 TECHNOLOGY CORNER ................53 LEGISLATIVE UPDATE ..................54 SECTION NEWS ................................56 MEETING PHOTOS ..........................58 ERIC TURNER AWARD TO LEN DUBIN ..................................59 SIDEBAR..............................................60

Jeffrey M. Williams is the Chair of the PBA Family Law Section and a founding Partner of the Doylestown firm of Williams & Hand, P.C., Past Chair of the Bucks County Bar Association Family Law Section and a Fellow in the American Academy of Matrimonial Lawyers and a Diplomate in the American College of Family Trial Lawyers.

House Bill 1639 All three of us testified to the Section’s support of HB 1639. More specifically, yours truly tesJeffrey M. Williams, Esq. tified as to the need for such custody legislation. It codifies 16 factors to be considered by a jurist in fashioning an award of custody. At present, various factors relevant to a custody matter are spread throughout case law. Factors that the judge must consider include (1) which party is more likely to permit frequent and continuing contact between the child and the other party; (2) domestic violence; (3) past performance of parental duties; (4) proximity of residences of parties; (5) level of conflict between the parties; and (6) ability of the parties to cooperate with each other regarding child rearing decisions.

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FROM THE CHAIR COLUMN (continued from Page 1)

Some interesting issues surfaced during the preparation for the hearing. For example, various domestic violence groups believe that domestic violence should be the primary factor when determining the primary physical custody of a child/children. The bill also includes specific advance notice of 60 days relating to custody relocation matters. It sets forth 10 factors to be considered by the trial court when determining whether to grant a proposed relocation. The relocation section of the legislation clearly places the burden of proof on the party who seeks relocation to prove that relocation will serve the best interest of the child/children. HB 1639 further requires that a judge present detailed findings to support any award of custody. These reasons can be spread upon the record at the time of trial or, in the alternative, they can be disseminated via issuance of a written opinion. HB 1639 requires the increased use of parenting plans and allows the filing of a complaint in custody even when the litigants continue to reside together. House Bill 463 HB 463 proposes to amend The Pennsylvania Domestic Relations Code by specifically defining joint physical custody in such a manner as to create a rebuttable presumption in favor of equal physical custody. “An order for joint custody shall be awarded by the court unless the court finds that joint custody is not in the best interest of the child. There shall be a rebuttable presumption that an award of joint custody is in the best interest of the child.” Although the proposed legislation contains other changes, this “presumption issue” is the most significant of the provisions of HB 463. EDITOR-IN-CHIEF David S. Pollock CO-EDITORS Harry M. Byrne Jr./Benjamin E.Orsatti William L. Steiner/Jay A. Blechman

Founder/Former Editor-in-Chief Jack A. Rounick

David L. Ladov/Lori K. Shemtob Gerald L. Shoemaker Jr.

Former Editor-in-Chief Hon. Emanuel A. Bertin

Former Associate Editors: Gary J. Friedlander, Caron P. Graff Published by the Pennsylvania Bar Association in conjunction with the Family Law Section as a service to the profession. Mailing Address: Pennsylvania Bar Association, 100 South St., P.O. Box 186, Harrisburg, Pa. 17108. Telephone: 1800-932-0311 or (717) 238-6715. From time to time, the Pennsylvania Family Lawyer will publish articles that it receives for submission. The views expressed in those articles are solely those of the authors of the articles and do not reflect the views or policies of the editors, the Pennsylvania Family Lawyer, the Family Law Section or the Pennsylvania Bar Association, and no endorsements of those views should be inferred therefrom. ©2010 by the Family Law Section of the Pennsylvania Bar Association.

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Jeffrey Williams, Mary Cushing Doherty and Ned Hark at the House Judiciary Committee’s Feb. 4 subcommittee hearing on Pennsylvania’s child custody laws. Ned Hark testified to the Section’s strident opposition to a rebuttable presumption of joint physical custody. In fact, all three of the PBAFLS chairs who testified spoke against equal physical custody as a required starting point. Simply viewed, there should be no presumption; a judge should work from a clean slate in fashioning an award of physical custody. Presumptions can be particularly problematic when one considers different levels of involvement with the children prior to separation and the of children’s varying needs, which are determined, in part, by their developmental stages. House Bill 418 We also testified in opposition to HB 418, which proposes a constitutional amendment that would remove the Pennsylvania Supreme Court’s primary authority to make rules that control family court matters. The legislation is based on the principle of “therapeutic justice,” which aims to establish courts that are user-friendly, cost-efficient and time conscious. The legislation contains a number of good concepts (e.g., one judge-one family; limiting protracted hearing dates in complex matters; creation of a domestic relations resource center to promulgate information about divorce, separation, etc.). The major problem, however, is that empowerment of the Legislature to run the court system clearly violates the basic tenet of the separation of powers. Final Thoughts The February hearing was the culmination of over 10 years of hard work by various members of our Family Law Section. Well in advance of the hearing, testimonial summaries were presented to the Sub-Committee. The testimony presented on Feb. 4 was unanimously “pre-approved” by the PBA Board of Governors. This approval was obtained when I appeared at the Board of Governors meeting in Erie, on Sept. 18, 2009. The impact of these years of work and testimony has yet to be seen. Legislation moves slowly in this commonwealth and the already slow legislative process has been delayed even further by the budget crisis that befell Pennsylvania in 2009 (into 2010). Stay tuned! PENNSYLVANIA FAMILY LAWYER MARCH 2010

EDITOR’S COLUMN By David S. Pollock, Esq. [email protected] Global Freakiness is now upon us. As a child in the ‘50s and ‘60s, I was glued to the Science Fiction and Fantasy Magazine and all kinds of science fiction books. At that time, the authors were fixated on the atom bomb and spacecraft. Science fiction evolved over the decades into social science fiction. And since my undergraduate studies were cultural and social anthropology and sociology, science fiction has kept my attention to this very day. As fantasy branched off, I have only seldom gone that route (except for my frequent rereads of the Tolkien masterpieces). But what I recall from those wonderful ‘50s and ‘60s science fiction books is that mankind would so befoul the atmosphere that outside of the domes covering the metropolises on earth, there would be freaky weather, not fit for man — only terrifying beasts. For that reason (and need for raw materials), mankind’s outward migration to other planets became a Terran mandate. And so it is with horrific hurricanes, crazy storms and uncommon weather events that we now will experience for the remainder of our lifetimes. “Global warming” is a terrible misnomer. As the post-atom bomb writers prognosticated, it is “Global Freakiness” or as Thomas L. Friedman recently wrote in The New York Times: “Global Weirding is here.”

Oh the weather outside is frightful, But the fire is so delightful, And since we’ve no place to go, Let It Snow! Let It Snow! Let It Snow! It doesn’t show signs of stopping, And I’ve bought some corn for popping, The lights are turned way down low, Let It Snow! Let It Snow! Let It Snow! When we finally kiss goodnight, How I’ll hate going out in the storm! But if you’ll really hold me tight, All the way home I’ll be warm. The fire is slowly dying, And, my dear, we’re still good-bying, But as long as you love me so, Let It Snow! Let It Snow! Let It Snow! Let us hope our cases and clients do not turn freaky or weird like the weather! After a great PBA Family Law Section Annual Winter Meeting, we offer an eclectic group of case notes: Campbell v. Walker – Christine Gale Miller v. Miller – Michael E. Bertin Harcar v. Harcar – Cheryl B. Krentzman In Re: K.T.E.L. – Lynnore Kay Seaton Mackay v. Mackay – Joo Y. Park DeBoer v. Slusser – Andrew D. Taylor McMullen v. Kutz – Elizabeth J. Billies M.A.T. v. G.S.T. – Carolyn R. Mirabile

For the time-being, all the snow is good to me. Lots of snow in the Mid-Atlantic (as opposed to the Coast Mountains of British Columbia or the Green Mountains of Vermont) has made for a wonderful diversion from our toils as family lawyers. So Let it Snow! Let it Snow! Let it Snow!

David S. Pollock is a Co-Founder of the Pittsburgh firm of Pollock Begg Komar Glasser LLC, Editor-in-Chief of Pennsylvania Family Lawyer, Past Chair of PBA Family Law Section, Past Chair of ACBA Family Law Section, Treasurer of Pa. Chapter of AAML, and Fellow of both the AAML and IAML. PENNSYLVANIA FAMILY LAWYER MARCH 2010

R.M.G., Jr. v. F.M.G. – Elizabeth H. Cepparulo Silver v. Pinsky – Jonathan Todd Hoffman David Ladov, Lori Shemtob and I thank our loyal cadre of case note authors who year after year give us clear synopses and good insights into the appellate case law.

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EDITOR’S COLUMN (continued from Page 3)

And, the following Articles and Comments are ones that we find particularly interesting: 2010 Amendments to the Pennsylvania Supreme Court Support Guidelines – Andrew D. Taylor Unified Family Court in Allegheny County – Hon. David N. Wecht Cash Flow for Support Purposes Chart – Dana A. Levine and Brian C. Vertz “The Taxing Side of Divorce” – Mary V. Ade, Director, SRR, Inc. In Case You Were Wondering — Retirement Benefits and Plan Participant’s Death — Cami L. Davis The Effect of Islamic Family Law on North American Family Law Issues — Alexandra Leichter The long-awaited Amendments to the Guidelines promulgated Jan. 12, have finally laid to rest the Melzer formula, which brought terrible disheartening results due to the cliff effect when an income analysis changed to a needs-based analysis. The Pennsylvania Supreme Court’s new requirement to present an expense statement when the net incomes

exceed $30,000 per month is perplexing [see Rule 1910.27(b)(2)(B) and Explanatory Comment – 2010]. This editor hopes this is not a return to the utterly absurd budgetary battles that put lots of monies in a very few attorney and “compilation expert” coffers under the guise of assisting the dependent spouse. This author hopes that those legal events are over. Andrew Taylor’s Guidelines review in this issue should be the beginning of your close reading, after which you should be attending the upcoming spring PBI lectures regarding these amendments. Administrative Judge Wecht’s extension of Allegheny County’s “One Family One Judge” concept into the “Unified Family Court” is a good read for attorneys and judges in counties with separate Family Divisions dealing with adult and juvenile cases. And, my law partner Brian C. Vertz’s “Cash Flow for Support Purposes” is back (with our associate Dana A. Levine’s updates) for what we hope to be an annual offering! Thanks Brian and Dana for returning this PBA/PBI quick guide to the Pennsylvania Family Lawyer. Mary V. Ade’s tax article and Cami L. Davis’ retirement article are included to continue to give readers fresh, clear and concise explanations of the federal laws affecting all aspects of our family law practices. And, Alexandra Leichter’s religious divorce article is essential to that aspect of our cases. Harry Byrne, Benjamin Orsatti and I thank all of the authors for their desire to educate our readership. The older we get the more we are affected and deeply concerned by the highs and lows of our family and friends. Rita and I send our love and condolences to Carol and Barry McCarthy on the passing of their son Jack McCarthy.

PBA ANNUAL MEETING — May 12-14 • Hershey Lodge, Hershey

Download the Annual Meeting brochure at www.pabar.org.

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PENNSYLVANIA FAMILY LAWYER MARCH 2010

Case Notes:

David L. Ladov, Esq., Co-Editor, [email protected] Lori K. Shemtob, Co-Editor, [email protected]

SEIZING OF PERSONAL INJURY SETTLEMENT PROCEEDS PERMITTED FOR CHILD SUPPORT ENFORCEMENT BY CHRISTINE GALE, ESQ. CAMPBELL V. WALKER; APPEAL OF: DEPARTMENT OF PUBLIC WELFARE 982 A.2d 1013 (Pa. Super. 2009) The Superior Court (Bender, Shogan, JJ., and McEwen, P.J.E.) reversed the decision of the Philadelphia County Judge Pechkurow, which had denied the request of the Department of Public Welfare (DPW) to seize father’s personal injury proceeds to satisfy child support arrears owed to the Department. The father had received a $3,084 settlement from a personal injury lawsuit with the trial court accepting the father’s agreement to pay support arrears of $957 in full to the mother but releasing the balance of the funds to the father, with no payment to the DPW for arrears owed to the Department. Judge Pechkurow relied on 23 Pa. C.S. §4308.1(a), which authorizes the seizure of monetary awards, such as a settlement from a lawsuit, only where such award is in excess of $5,000. The Department of Public Welfare successfully argued that enforcement had been sought under 23 Pa. C.S. §4305(b)(10)(ii), which permits the interception of settlements for the satisfaction of support obligations. The Superior Court determined that these two sections were not in conflict with each other but were complementary measures to achieve the goal of child support collection.

as arrears owed to the DPW, thus resulting in notification to the Office of the Philadelphia District Attorney, which served as counsel for the Department. Following a hearing to address the distribution of the settlement proceeds, an agreement was entered between the father and the mother for the payment to the mother of the arrears owed to her directly. The trial court entered an order releasing the balance of the proceeds to the father, but did not order any distribution to the DPW for the arrears owed to the Department. The DPW filed an appeal, questioning whether the trial court abused its discretion by denying distribution of any of the proceeds to satisfy the arrears owed to the Department. TRIAL COURT DECISION At the time of the hearing, the trial court relied on 23 Pa. C.S. §4308.1(a) and determined that the court did not have the power to seize the proceeds for the satisfaction of arrears since the father’s settlement proceeds were less than $5,000. The payment by the father to the mother of the arrears owed to the mother were the result of an agreement between the father and the mother and thus the trial court could enforce that agreement, but the trial court did not determine that it could require a further satisfaction of arrears to the DPW.

BACKGROUND The facts of the case are not in dispute. The father had negotiated a settlement of a personal injury lawsuit, netting him the sum of $3,084. He had a child support obligation that included arrears owed directly to the mother, as well

PENNSYLVANIA SUPERIOR COURT’S DECISION The resolution of this appeal involves statutory construction presenting a pure question of law and thus the stan-

David L. Ladov is a Partner in the West Conshohocken office of the law firm of Cozen O’Connor, Case Notes Co-Editor of Pennsylvania Family Lawyer and Past Chair of the PBA Family Law Section. Lori K. Shemtob is a partner in the Blue Bell law firm of Shemtob & Shemtob, Case Notes Co-Editor of Pennsylvania Family Lawyer and member of Council of the PBA Family Law Section.

Christine Gale is a Shareholder in the Pittsburgh law firm of Frank, Bails, Murcko, Gubinsky & Gale, P.C., Second Vice Chair of the Pennsylvania Bar Association Family Law Section and a member of its Legislative Committee, and a former Council member of the Allegheny County Bar Association Family Law Section and Co-Chair of its Legislative Committee.

PENNSYLVANIA FAMILY LAWYER MARCH 2010

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CASE NOTES (continued from Page 5)

dard of review of the Superior Court is de novo and the Superior Court’s scope of review is plenary. Lynnebrook and Woodbrook Assoc., L.P. v. Borough of Millersville, 963 A.2d 1261 (Pa. 2008). The Superior Court, per McEwen, P.J.E., was not persuaded by the father’s argument that the dispute was governed solely by Section 4308. Rather, the Superior Court determined that Sections 4308 and 4305 were not in conflict and that either could be applied to the issue of the personal injury funds. The Superior Court distinguished Section 4308 by clarifying that said section required an obligor to notify the local Domestic Relations Division in the event of such a personal injury award or settlement so as to allow collection of any such asset to satisfy support obligations. Section 4305 permitted the collection of arrears by seizing judgments or settlements in any amount. The sections were complementary measures to be used to enforce child support obligations and collect any arrears owing. 23 Pa. C.S. §4305(b)(10)(ii) permits the intercepting or seizing of judgments or settlements and is provided under the powers and duties described in the general administration of support matters. 23 Pa. C.S. §4308.1(a)(i) clarifies the court’s power for the collection of overdue support from monetary awards and provides that any support arrears shall constitute a lien by operation of law against any net proceeds of any monetary award, with the distribution of any such award being stayed. Monetary awards are described as any lump sum payment from the resolution of a civil lawsuit, said award being in excess of $5,000. The question before the Superior Court was whether the general powers described in Section 4305 empowered the court to seize the monetary award even though the monetary award was less than the $5,000 limit described in Section 4308. Principally, the trial court’s position was that the specific language of Section 4308 would prevail over the general language of Section 4305, particularly since Section 4308 was enacted after Section 4305. Therefore, if two provisions of the statute are in conflict, the specific will prevail unless the general provision was enacted after the specific provision. The Superior Court, however, determined that no true conflict existed. The reasoning was given that Section 4308 imposed a lien by operation of law, attaching immediately upon recovery by the obligor, with no action being required by the obligee. This section was determined to be a separate device intended to assure notification of any such settlements. Section 4305 provides for the collection of arrears in any amount from defaulting obligors by the issuance of orders that would include the seizure of judgments or settlements.

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The two statutory sections were not irreconcilable, but instead, complementary measures to be used to facilitate collection of support obligations. The trial court’s order was reversed and the matter was remanded for proceedings consistent with the Superior Court’s determination. CASE NOTE AUTHOR’S EDITORIAL COMMENTS Over the last two decades we have seen stronger and stronger enforcement measures being used by our courts to enforce support obligations. Long gone are the days when an obligor had to be found in contempt at least a few times before action would be taken. Long gone are the days when wage attachments were not readily imposed. Now wage attachments are a matter of course, issued unless the obligee elects to decline such enforcement methods. Wage attachments are the norm in support obligations. Liens against real property are the norm when arrears exist, resulting in the satisfaction of support arrears when real estate is sold. Assets can be seized from financial institutions, judgments are entered and credit bureaus are notified when arrears exist. Federal and state income tax refunds are intercepted, professional licenses and driver’s licenses are suspended when arrears are unpaid. 23 Pa. C.S.A. §3505(a) also allows issuance of an injunction to prevent a party from alienating property in order to defeat a child support award. Although not dealing with child support, see also Dudas v. Pietrzykowski, 849 A.2d 582 (Pa. 2004), where workers’ compensation lump sum payments were placed in escrow to ensure future alimony payments. These are all remedies that practitioners did not see automatically being pursued or enforced in years gone by. It is clear that enforcement of child support obligations is a paramount concern to the courts of this commonwealth. One may be able to see the trial court’s reasoning that the specific language of Section 4308 should trump the general language of Section 4305, particularly since Section 4308 was enacted after Section 4305. Our trial courts have long enforced the rule of statutory construction, which provides that when a general provision in a statute is in conflict with the specific provision of the same or another statute, the specific provisions will prevail and shall be construed as an exception to the general provision. See Olshansky v. Montgomery County Election Board, 412 A.2d 552 (Pa. 1980); McKinney v. Board of Commissioners of Allegheny County, 410 A.2d 1238 (Pa. 1980); and Yerger v. Voters of Jackson Township, 333 A.2d 902 (Pa. 1975). All of these cases, along with numerous other cases, support the argument that specific provisions of statutes govern the general provisions of the same or different statutes. However, the Statutory Construction Act of 1972, 1 Pa. C.S.A. §1933 (Supp. 1978-79) directs that whenever general and specific (continued on Page 7) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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provisions are in conflict, the provisions should be construed if at all possible to give effect to both. The Superior Court did not determine that a conflict existed in the matter before us as Section 4308 provides for an automatic lien by operation of law, thus involving the court before distribution of large settlement proceeds are effectuated. Section 4305 is the broad and general statute dealing with child support enforcement and collection.

Simply because a lien exists by operation of law and a determination must be made as to the distribution of settlement proceeds, there is no limitation of the general powers of the court to use all measures possible and necessary to enforce child support obligations. The courts have held enforcement of child support to be of paramount concern, giving liens for child support priority over competing liens. See Wolf v. Wolf, 2003 WL 23507497 (Pa.Com.Pl.) 65 Pa. D.&C.4th 71) (2003) and 42 USCA §666(b)(7). The bankruptcy court also recognizes child support as a priority claim. It is, therefore, no surprise that the Superior Court determined that the two statutes in question were not in conflict but both worked to ensure the collection of support arrears.

ENFORCING MORTGAGE PAYMENT PROVISION IN POSTNUPTIAL AGREEMENT BY MICHAEL E. BERTIN, ESQ. MILLER V. MILLER, 983 A.2d 736 (Pa. Super. 2009). Miller raises interesting issues for the family law practitioner. Generally, the Miller case pertains to a Postnuptial Agreement entered between the parties that included a provision that the husband would pay for the mortgage loan, real estate taxes and homeowner’s insurance on the marital residence until the marital residence was sold. The parties married in 1979, had four children, resided in a jointly owned marital residence, and divorced in 1994. The parties entered into a Postnuptial Agreement that was incorporated but not merged into the divorce decree. Neither party disputes the validity of the Postnuptial Agreement. The Agreement provided under Paragraph 3.1 that the husband shall be solely responsible for payment of the mortgage loan, real estate taxes and homeowner’s insurance on the marital residence and, in the event the marital residence would be sold, the parties would equally share in the expenses of the sale and net proceeds, and the husband would be reimbursed for his payments toward the mortgage. After the parties divorced, wife and the children continued to reside in the marital residence and husband continued to pay the forgoing mortgage payment until approximately October 1996. Michael E. Bertin is a Partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is Co-Chairman of the Custody Committee and Secretary of the Family Law Section of the Philadelphia Bar Association, and a member of Council and past member of the Executive Committee of the Family Law Section of the Pennsylvania Bar Association. PENNSYLVANIA FAMILY LAWYER MARCH 2010

Wife filed a child support action against husband in August 1996, and a hearing officer entered an Interim Order following a Sept. 30, 1996 support hearing directing husband to pay child support. The Interim Order also provided that wife was to pay the “mortgage” on the marital residence from the child support she received beginning Oct. 1, 1996. Neither party filed exceptions to the Interim Order. Beginning Oct. 1, 1996, husband stopped making mortgage payments on the marital residence. The Opinion, in a footnote, indicates that husband argued that the term “mortgage” included real estate tax and homeowner’s insurance payments, though wife disagreed and focused on the point that the Interim Order was silent as to real estate taxes and/or homeowner’s insurance payments. After the master’s hearing, there were two subsequent hearings that modified the Interim Order retroactive to Aug.12, 1996. Interestingly, the modified order was silent as to the mortgage payment obligation “or any other obligations regarding the marital residence.” Wife paid the mortgage payments from Oct. 1, 1996 until the mortgage was satisfied in January 1999. “However, real estate taxes on the marital residence became delinquent.” In July 2005, the township and school district sued husband and wife, asserting a tax lien against the marital residence. Husband and wife filed cross claims against each other. After husband paid his proportionate share of the taxes due, the township and school district dismissed its claim against husband. On Nov. 15, 2005, wife filed a petition seeking enforcement of the agreement and requested that the court “compel husband to pay all outstanding real estate taxes and reim(continued on Page 8)

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CASE NOTES (continued from Page 7)

burse her for all of her post-separation payments made on the marital residence (i.e., mortgage, tax and insurance payments).” Husband filed a Motion for Summary Judgment against wife seeking damages in excess of $113,000 “for inter alia her alleged failure to pay the mortgage, taxes and insurance on the marital residence in accordance with the Interim Order.” In his motion, husband claimed that the Interim Order directing wife to pay the mortgage from his child support payments superseded the Agreement and “relieved him of his contractual obligation.” Wife filed a Motion for Partial Summary Judgment in response, “which asserted that the Interim Order did not supersede the Agreement and husband’s cessation of making payments on the marital residence constituted a breach of the Agreement.” The trial court denied husband’s Motion and granted wife’s Partial Summary Judgment Motion, finding that husband breached his obligation under the Agreement and ordered another hearing before another hearing officer to determine wife’s damages as a result of husband’s breach. The hearing officer issued a Temporary Order on damages in the following amounts: $80,650.95 for the mortgage, tax and insurance payments made by wife, and $17,335 for wife’s attorney’s fees and expenses. Husband filed Exceptions to the hearing officer’s damages order and Allegheny County Judge Eaton dismissed the Exceptions and adopted the hearing officer’s Temporary Order in its entirety. As a result thereof, husband filed a timely appeal raising three issues: I. Whether the [Interim O]rder – [directing] that wife pay the mortgage beginning Oct. 1, 1996, from husband’s child support — became final by operation of law when wife failed to file an exception; II. Whether wife’s claim for reimbursement of payments she [had] made [toward the marital residence] over four years before she filed her [P]etition for Enforcement are barred by the four-year statute of limitations applicable to a contract action; and III. Whether §3502(e) of the Divorce Code … provides a statutory basis for an award of counsel fees as compensatory damages in an action for breach of a post-nuptial agreement. A layered analysis was applied to husband’s first claim on appeal by the Superior Court (Musmanno, Donohue and Shogan, JJ.). First, it appears that husband’s challenge was defective because of local procedure. According to the opinion (authored by Musmanno, J.), Allegheny County Local Rule provides that “[n]o exceptions may be filed to a recommendation of a hearing officer labeled ‘interim.’” Therefore, the parties could not file exceptions to the Interim Order

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under the local rule. The Superior Court noted that neither of the modified orders (which were retroactive prior to the Interim Order) included a provision directing wife to pay the mortgage from husband’s monthly child support payments. Husband argued that the subsequent orders modified only the amount of his support and did not supersede wife’s obligation under the Interim Order to pay the mortgage and other payments regarding the marital residence from his child support payments. Husband noted Rule 1910.16-6(e), which provides: “[t]he Guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payments, real estate taxes and homeowners’ insurance.” He also argued that the trial court’s damage award improperly granted wife “double recovery,” since “husband had already made these payments on the marital residence” through his monthly child support payment. The Superior Court looked to the fact that husband assumed the responsibility to make the payments on the marital residence in the agreement until the house was sold, and that the agreement remained in full force at all times during the parties’ child support case and “is valid and binding to this day.” The Superior Court also noted that wife complied with the Interim Order and paid the mortgage payments on the marital residence from husband’s child support. The Superior Court further stated: “The trial court in a child support action could not modify the contractual obligations that husband previously had assumed under … the Agreement.” Under §3105(c) of the Divorce Code, unless there is a specific provision appearing in an agreement stating to the contrary, the agreement cannot be subject to modification by the court regarding property rights and interests between the parties. The agreement at issue did not contain a provision permitting the court to modify the parties’ disposition of the marital residence (a property right and obligation). In the alternative, husband argued that the mortgage provision constituted a “child support obligation,” therefore making it available to be modified by the trial court. The Superior Court found that argument to be without merit as well. Accordingly, the Superior Court rejected husband’s first argument on appeal. Husband’s second argument on appeal, regarding the four-year statute of limitations, was found to be meritless by the Superior Court. The Superior Court reminded the practitioner that property settlement agreements constitute a continuing contract. In cases where there is a continuing contract, the statute of limitations generally does not run. Husband argued that each time he failed to make a payment on the mortgage, taxes and insurance, pursuant to the agreement, a separate cause of action accrued, thereby triggering the limitations period, and wife filed after the four-year period. However, the Superior Court disagreed with that argument. Husband also argued that when a contract is continu(continued on Page 9) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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ing, “the statute of limitations will run from either the time when the breach occurs or when the contract is in some way terminated.” The Superior Court responded by stating: “Here, however, husband continued to owe payments on the marital residence, an obligation that he had expressly assumed under … the Agreement. Accordingly, the statue of limitations had not begun to run on husband’s continuing payment obligations.” Lastly, husband argued that the trial court erred in applying §3502(e) in awarding counsel fees for the breach of the Agreement. Husband argued that the Agreement between the parties was not an agreement of equitable division of marital property, thereby rendering §3502(e) inapplicable to the present case. Section 3502(e) provides: “If … a party has failed to comply with an Order of Equitable Distribution … or with the terms of an agreement as entered into between the parties … the court may … award counsel fees and costs.” Section 3105 of the Divorce Code provides, in part, as follows: “A party to an agreement regarding matters … under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanc-

tion set forth in the Code to enforce the agreement.” The Superior Court held that the parties “unequivocally expressed their intentions that the agreement was the instrument that would exclusively govern the distribution of their marital property.” Further, though the agreement did not contain a provision regarding the award of counsel fees, the Superior Court found that the trial court had the authority to award wife counsel fees under §3502(e)(7) via §3105(a). CASE NOTE AUTHOR’S EDITORIAL COMMENTS This case is important for the family law practitioner. It reminds the family law practitioner that regardless of whether a property settlement agreement is incorporated in a divorce decree or contains a provision for attorneys’ fees, if a party breaches the agreement, attorneys’ fees may be ordered. It also reminds the practitioner of the importance of provisions pertaining to the payment of expenses related to marital property. Further, under this case, mortgage payments can be deemed independent of support obligations and held to be non-modifiable if contained in an agreement construed to be in the nature of property rights and obligations. This Dec. 8, 2009 article is reprinted with permission from The Legal Intelligencer © 2009.

TRIAL COURT DID NOT IMPROPERLY MODIFY CUSTODY ORDER IN CONTEMPT PROCEEDING BY FAILING TO IMPOSE SANCTION OF RETURN OF CHILD TO JURISDICTION, BUT FAILURE TO IMPOSE ANY SANCTIONS FOR CONTEMPT AND PRONOUNCEMENT REGARDING FUTURE JURISDICTION CONSTITUTED ERRORS BY CHERYL B. KRENTZMAN, ESQ. HARCAR V. HARCAR 982 A.2d 1230 (Pa. Super. 2009) In Harcar v. Harcar, the Superior Court (Musmanno, Donohue and Shogan, JJ), considered father’s appeal from Beaver County Judge Kim Tesla’s decision relating to contempt and jurisdiction in a child custody case involving the United States and the Republic of Turkey. The Superior

Cheryl B. Krentzman in an Associate in the State College office of McNees, Wallace & Nurick LLC, and is a member of the PBA Family Law Section, the Centre County Bar Association, and the Wilkinson-Campbell American Inn of Court. PENNSYLVANIA FAMILY LAWYER MARCH 2010

Court, per Shogan, J., affirmed the trial court’s finding of contempt, rejected father’s claim that failure to order the return of the child to Beaver County constituted an improper modification of the custody order, but reversed and remanded for the trial court’s failure to impose any sanctions, and vacated the portion of the lower court’s order regarding future exercise of jurisdiction. FACTS AND PROCEDURAL HISTORY The Parties Prior to separation, father and mother, both natives of the Republic of Turkey, lived in Beaver County during the academic year, where they both served in teaching positions (continued on Page 10)

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at the Pennsylvania State University Beaver Campus. During the summer months, the parties would return to their native Republic of Turkey. The parties had one child who followed the same schedule. The Original Custody Order The parties separated and, in March 2006, mother filed a custody complaint in Beaver County. By Order entered on May 1, 2006, mother was awarded primary physical custody of child, with father having partial physical custody. The trial court’s Order stated that neither party could remove the child from the U.S. without written and verbal consent of the other party and if either party sought to relocate out of Beaver County, court approval would be required unless the other party consented in writing. Mother’s Request to Take the Child to Turkey for the Summer and Related Filings Two months later, on June 2, 2006, mother filed a Motion for Special Relief seeking permission to take the child to Turkey for the summer. On the same day, the trial court granted mother’s motion and allowed mother to take the child to Turkey from June 12, 2006 through Aug. 18, 2006. Also in June 2006, mother undertook several other filings, including claims for divorce and custody in Turkey and a Petition to Relocate with the Child, which was filed in Beaver County. Father’s First Petition Relating to Mother’s Failure to Return with the Child After Mother failed to return from Turkey in August 2006, Father filed a Petition for Civil Contempt of the June 2, 2006 Order in Beaver County. A Rule was issued on mother and a hearing was set for Sept. 1, 2006. Although mother did not answer the Rule, she did file a Motion to withdraw her Petition to Relocate citing that a judge in Turkey assumed jurisdiction over the custody matter and determined that the child should remain in Turkey. The hearing on father’s Petition for Civil Contempt was not held on Sept. 1, 2006. Father’s Second Petition Relating to Mother’s Failure to Return with the Child and the Trial Court’s Order for Return to Beaver County Thereafter, father again filed a Petition seeking Special Relief relating to mother’s failure to return the child pursuant to the June 2, 2006 Order. Mother answered the Petition stating that she did not return the child to Beaver County because she did not want to violate the Order of the judge in

Turkey. On Sept. 5, 2006, the trial court ordered mother to return the child to Beaver County. Father’s Third Petition Relating to Mother’s Failure to Return with the Child Mother did not return the child to Beaver County and, on March 4, 2008, father filed another Civil Contempt Petition, asking that the trial court now hold mother in contempt of both the June 2, 2006 and the Sept. 5, 2006 Orders. A Rule was issued upon mother and a hearing was scheduled for May 13, 2008. By this time, the original Order of the judge in Turkey had been vacated by the Supreme Court of Appeals in Turkey pursuant to the Hague Convention. The Contempt Hearings and Trial Court Decision Hearings were held on father’s Civil Contempt Petition on May 13, 2008, and Aug. 11, 2008. Ultimately, the trial court issued an Order on Oct. 7, 2008, finding mother in contempt of the June 2, 2006 and Sept. 5, 2006 orders. The trial court, however, did not impose any sanctions on mother. In so doing, the trial court observed that, given that approximately two years had passed, much of the evidence relating to best interests was now in Turkey, that father was now living in Turkey on an education sabbatical for approximately one year and that he may relocate to the State of Georgia (former USSR) after that, and that it would not be in the best interest of the child to force mother to return the child to Beaver County when father was no longer living there. Despite being aware of the reversal of the original Order of the judge in Turkey, the Beaver County trial court judge concluded that Beaver County was now an inconvenient forum under 23 Pa.C.S.A. §5427 and all further custody proceedings should occur in Turkey. Father’s Appeal Father filed a timely appeal of the trial court’s Oct. 7, 2008 Order, raising three issues on the basis of abuse of discretion and error of law, summarized as follows: 1.

2.

3.

The trial court improperly sua sponte modified the controlling court Orders in the context of only a Petition for Contempt; The trial court was incorrect in failing to impose any sanctions and, in fact, acted by rewarding mother’s contempt despite the fact that the Beaver County orders had not been modified or vacated and Turkey refused to exercise jurisdiction; and The trial court improperly refused to exercise subject matter jurisdiction or exclusive continuing jurisdiction in light of the fact that Turkey declined to exercise jurisdiction. (continued on Page 11)

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Mother did not file a brief on appeal. Notably, after filing his appeal, the Superior Court granted father’s Motion for Allowance of Post-Submission Communication, where father supplemented the record to reflect that the courts in Turkey entered numerous orders that the child be returned to father, including an Order from the Supreme Court of Appeals in Turkey. SUPERIOR COURT DISCUSSION AND DECISION As an initial matter, after analyzing the applicable standards and procedures, the Superior Court confirmed that the trial court properly held mother in contempt of the prior orders. The Superior Court Opinion then proceeded to review each of father’s specific issues raised on appeal. Issue 1: The Trial Court Did Not Improperly Modify the Custody Orders in the Context of a Contempt Proceeding The Superior Court rejected father’s argument that the trial court improperly sua sponte modified the prior Beaver County custody orders by not requiring mother to return with the child to Beaver County. Father relied on Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002), to argue that it is improper to modify custody when considering only a contempt matter and there is no petition for modification pending. However, the Superior Court rejected father’s reliance on Langendorfer, as it found that that case involved a grant for contempt accompanied by a change in the legal and primary physical custody, which violated due process rights because of the lack of notice that custody would be at issue. Instead, the Superior Court found that here, no modification of the custody was made, and that the trial court simply declined to require mother to return the child to its jurisdiction. Issue 2: The Trial Court Erred in Refusing to Impose Any Sanction on Mother for Contempt On the second issue, the Superior Court found father’s reliance on Goodman v. Goodman, 556 A.2d 1379 (Pa. Super. 1989) to be on point. The Superior Court Opinion recognized in great detail the facts, discussion and holding of the Goodman case. The mother in Goodman had temporary primary physical custody and despite representations to the trial court that she would remain in the jurisdiction, the mother relocated with the child to West Germany and filed a custody action in that jurisdiction, where she was ultimately granted sole custody without notice to the father. The trial court in Goodman imposed fines on the mother, issued bench warrants for her arrest and ordered that the child be returned to the father in Pennsylvania. On appeal, the panel of the PENNSYLVANIA FAMILY LAWYER MARCH 2010

Superior Court in Goodman determined that the trial court was not bound under the then-controlling provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) to recognize the West German orders, that the mother engaged in egregious forum shopping and that it was not an abuse of discretion for the trial court to impose counsel fees as part of the sanction on mother, as the sanction was coercive and compensatory, not punitive. Applying the principles discussed in Goodman to the instant case, the Superior Court found that the trial court’s decision not to impose sanctions on mother because it would not be in the best interest of the child constituted an abuse of discretion. The Superior Court noted mother’s “flagrant contempt” of the trial court’s orders and the fact that the trial court’s reasoning for not sanctioning mother “actually permitted mother to engage in disobedience of the custody orders of this commonwealth.” Citing Goodman for the proposition that mother’s behavior of fleeing Pennsylvania, where custody orders were in place, and seeking to litigate the custody in Turkey is not condoned, the Superior Court concluded that the trial court misapplied the law and exercised its discretion without reason when not imposing any sanctions on mother. The Superior Court reversed this portion of the trial court’s decision and remanded for the trial court to impose the appropriate sanction(s). Issue 3: The Trial Court Erred in Determining Future Jurisdiction, a Matter Not Yet Ripe for Decision With regard to the final issue on appeal, whether the trial court improperly pronounced that Pennsylvania was now an inconvenient forum for custody and that all future matters should be heard in Turkey, the Superior Court found that the trial court decided a matter not properly before the court which was therefore not ripe for decision. Although the trial court explained this pronouncement as dicta in reaction to father’s counsel’s statement that father would file a Petition for Modification, the Superior Court did not agree. Explaining that the Pennsylvania Supreme Court instructs that the courts should not answer academic questions, render advisory opinions or make decisions based on hypothetical events that might occur, the Superior Court vacated the portion of the trial court’s order relating to future jurisdiction as not ripe for determination. CASE NOTE AUTHOR’S EDITORIAL COMMENTS In addition to thoroughly reviewing each specific issue raised on appeal by father, the Superior Court opinion provides an in-depth analysis of contempt standards and procedures, as well as jurisdictional issues. Although the opinion provides significant guidance in these areas, there are two main questions that remain unanswered in Harcar. First, (continued on Page 12)

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what is the appropriate sanction against mother? The trial court has made clear that it will not order the return of the child to Beaver County given the current whereabouts of father, but what else can be ordered? The Superior Court’s emphasis on the Goodman decision, where monetary sanctions in the form of counsel fees were upheld as part of the sanctions imposed, suggests that this may be one avenue for the trial court to explore. An interesting question is whether the trial court could impose the counsel fees sanction not only for the legal work performed for father in Beaver County, but also in Turkey as the result of mother’s numerous filings and appeals in that country. Drawing from the lack of activity in the Pennsylvania case from September 2006 through March 2008, and the references to various orders from Turkey, it appears that father was also forced to undertake significant legal efforts in Turkey for which he could potentially be compensated. The second unanswered question relates to which party should properly have custody of the child at this juncture and

how the custody can be resolved from this point forward. Clearly, the original custody Order of May 1, 2006, is not being followed and, pursuant to the Superior Court’s opinion, primary physical custody cannot be granted to father based on the contempt alone, without notice to mother that custody is at issue. At the same time, pursuant to the Hague Convention, the court in Turkey has ordered that the child be returned to father. (Note, however, there is an indication that the Turkey orders refer to the “U.S. resident father” and it is unknown if father’s presence in Turkey would change this ruling.) While in father’s ideal world, he would simply be able to enforce the Turkish order, this resolution seems to circumvent many of the jurisdictional considerations at hand that father has relied upon. As such, it appears that father’s best option at this point is to proceed with filing a Petition for Modification in Beaver County as his counsel indicated he would do. The trial court will then presumably have its opportunity to consider the jurisdictional issues and, unless the guidance provided by Superior Court’s detailed discussion regarding mandatory and permissive declination of jurisdiction sways the trial court, one can expect that ultimately the next determination of custody will be made by a court in Turkey.

FAILURE TO ADHERE TO THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE CAN PRECLUDE REVIEW OF AN APPELLANT’S ARGUMENTS BY LYNNORE K. SEATON IN RE K.T.E.L. 983 A.2d 745 (Pa. Super. 2009) FACTS AND PROCEDURAL HISTORY Mother appealed Philadelphia County Judge Dubow’s decree involuntarily terminating her parental rights to K.T.E.L., her biological child. The trial court terminated mother’s parental rights pursuant to subsections 2511(a)(1), (2), (5), (8) and 2511 (b) of the Adoption Act. Mother’s timely appeal raised the following questions: Whether the court erred in: 1) terminating mother’s parental rights under subsection 2511(a)(8); 2) finding termination best served K.T.E.L.’s developmental, physical and emotional needs under subsection 2511(b); and terminating mother’s parental rights after it had previously denied a similar petition. Lynnore K. Seaton is an Associate in the Harrisburg firm of McNees, Wallace, and Nurick, LLC, and a member of the family law sections of the ABA and PBA, as well as a member of the Dauphin and York County Bar Associations.

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Pursuant to changes to the Rules of Appellate Procedure, custody cases are currently being “fast tracked” to expedite their disposition. As such, Pennsylvania Rules of Appellate Procedure (P.R.A.P.) 905(a)(2)i and 1925(a)(2)ii, adopted Jan.13, 2009, require that a Notice of Appeal (Appeal) and the Concise Statement of Errors Complained Of (Concise Statement) be filed contemporaneously with one another. While mother filed a timely Notice of Appeal, her Concise Statement was filed three days thereafter. The appellees did not file objections to the late filing of the Concise Statement. Mother complied with all other procedural matters relative to the appeal, however, her brief broadened the first issue to cover all the sections of the Adoption Act under which mother’s rights were terminated, not just subsection 2511(a)(8). PENNSYLVANIA SUPERIOR COURT’S DECISION Procedurally, this was an issue of first impression for the Pennsylvania Superior Court in dealing with the children’s (continued on Page 13) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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fast track appeal procedures of PRAP 902(a)(2) and 1925(a)(2). Judge Kelly, writing for the Superior Court panel of Stevens, Kelly and Popovich, JJ., held that failure to strictly adhere to Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2) resulted in a defective Appeal. Despite this defect, the court found no per se rule requiring the appeal to be quashed or dismissed as a result thereof. Instead, matters in which there is a defective Appeal shall be determined on a case-by-case basis. Because the Concise Statement was only three days late and did not prejudice the appellees, this Superior Court panel declined to quash or dismiss the instant appeal. In making this determination, this court cited Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980). “The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for the quashal of the appeal] has suffered no prejudice.”iii The court proceeded to consider mother’s questions on appeal. The first issue mother raised in her Concise Statement was whether the trial court erred in terminating her parental rights under subsection 2511(a)(8), yet mother’s brief attempted to broaden the issue. In her brief, mother challenged the court’s termination of her parental rights under subsections 2511(a)(1), (2), (5) and (8). Therefore, the court initially addressed whether issues that were beyond the scope of the original statement could be addressed. The court reiterated that “No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.” Pa. R.A.P. 2116(a). Noting that while it has reviewed issues that were not explicitly raised in the Statement, those issues were implied by “logical inference” in the context of the question raised. See Larue v. McGuire, 885 A. 2d 549, 554 n.4 (Pa. Super. 2005). The court found that mother waived her challenges under subsections (a)(1), (2) and (5), as they were not raised in her statement of questions involved, and could not be inferred by mother’s appeal to review subsection (a)(8). In support of her challenge under subsection (a)(8), mother argued that in order to evaluate the emotional bond between the parent and child, expert testimony must be produced in the hearing. The court explained that a bonding evaluation, expert testimony or a parenting evaluation is not required in order for grounds for termination under subsection (a)(8) to be found. The court cited In re K.K.R.-S.: “[i]n analyzing the parent-child bond, the orphan’s court is not required by statute or precedent to order a formal bonding PENNSYLVANIA FAMILY LAWYER MARCH 2010

evaluation be performed by an expert.” In re K.K.R.-S, 958 A. 2d 529, 533 (Pa. Super. 2008). Mother’s second issue on appeal was similar to her first, in that her sole support that the court erred in terminating her parental rights under subsection 2511(b) was that no bonding evaluation was performed. The court found that this argument lacked merit, as no evaluations are required. Finally, mother’s third issue was whether the court erred in terminating her rights when it had recently denied a petition for termination of her rights a few months earlier. The Superior Court dismissed this issue after determining that the trial court properly considered the entire history of the case in its determination and not just mother’s behavior since the last hearing. CASE NOTE AUTHOR’S EDITORIAL COMMENTS This case provides a reminder to all parties of an appeal to pay close attention to procedural rules. While mother’s appeal was not completely quashed due to her failure to file the Concise Statement contemporaneously with the Notice of Appeal, she risked losing the entire appeal due to what may have been simple oversight. Furthermore, she waived her right to challenge the trial court’s findings regarding the additional subsections by not listing them originally in her statement. The question that remains: What level of disregard for procedural rules will the Superior Court consider prejudicial to an opposing party? Filing a Concise Statement three days late with no objections raised by the opposing party is not prejudicial, but would the court have ruled differently if an objection were filed immediately? Can a Concise Statement be filed one week late? The essence of the children’s fasttrack procedures is to ensure that timely decisions are made in custody appeals. In failing to file the Concise Statement contemporaneously with the Notice of Appeal, an appellant unilaterally delays the court’s ability to make a swift decision. Since the court ruled that each defective appeal will be considered on a case-by-case basis, it is likely there will never be a bright-line test. Appellees need to remain aware of time frames, file objections when appropriate and be prepared to demonstrate to the court what, if any, harm they have incurred as a result of appellants’ inability to follow the procedural time restrictions. i Pennsylvania Rule of Appellate Procedure 905(a)(2) — If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with rule 1925(b)(1).

(continued on Page 14)

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ii

Pennsylvania Rule of Appellate Procedure 1925 (a)(2) Children’s fast track appeals. — In a children’s fast track appeal: (i)The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal required by Rule 905. See Pa. RAP. 905(a)(2). (ii) Upon receipt of the notice of appeal and the concise statement of errors complained of on appeal required by Rule 905(a)(2), the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall within 30 days file of

iii

record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, which may, but need not, refer to the transcript of the proceedings. The court points out the difference between children’s fast track cases and other civil and criminal appeals. Untimely concise statements filed in civil and criminal cases pursuant to rule 1925(b) results in a waiver of all issues, as they are mandated by trial court order. Commonwealth v. Gravely, 970 A.2d 1137, 1142 (Pa. 2009) (citing Commonwealth v. Castillo, 888 A.2d 775, 778 (Pa. 2005)). In contrast, the concise statement in children’s fast track cases is mandated by a rule of appellate procedure, therefore the court declined to extend the waiver rule of Castillo. See 1925(a)(2)(i).

PA SUPERIOR COURT REITERATES THE RULES OF LAW REGARDING ORAL AGREEMENTS ON COLLEGE EXPENSES, DEFINITION OF EARNING CAPACITY AND NET INCOME CALCULATIONS BY JOO Y. PARK, ESQ.

MACKAY V. MACKAY 984 A.2d 529 (Pa. Super. 2009)

In Mackay v. Mackay, the Pennsylvania Superior Court (Bender, Bowes and Cleland, JJ.) affirmed the decision of the Allegheny County judge, which awarded mother support of $810 per month for the three minor children in her custody, but denied her request for enforcement of an alleged agreement between the parties regarding the children’s college expenses and her counsel fees request based on violation of the alleged agreement. FACTS AND PROCEDURAL HISTORY Mother and father married in 1988. Four children were born during the marriage. Father worked in the business of selling water treatment systems until August 1992, when he and mother decided that father would stop working to stay home to take care of the parties’ children. Mother became the sole breadwinner for the family as she continued to work as the director of environmental health and safety for a large Joo Y. Park is an Associate in the Norristown firm of High Swartz LLP, a member of the PBA Family Law Section and the Montgomery County Family Law, Diversity Committee and Doris Jonas Freed American Inn of Court.

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multi-national corporation. The parties separated in April 2005, with father moving to Florida with his parents. Subsequently, father filed a Complaint for Spousal support in May 2005, followed by a Complaint for Divorce in July 2005. Judge Alan David Hertzberg presided over the trial of the claims for equitable distribution, alimony pendente lite, alimony, child support and counsel fees held from May 31 to June 1, 2006. The trial court distributed the marital estate 50 percent to each party. The trial court awarded father alimony pendente lite, but denied father’s alimony and counsel fee claims. The trial court awarded mother child support of $698 per month. The divorce decree was entered in December 2006. In March 2007, the parties modified the child support by consent order to $1,094 per month. In May 2008, mother filed a Petition to Enforce Agreement to Pay College Expenses and father filed a Petition to Modify Child Support. The trial court consolidated these two matters and following a hearing, issued two separate orders: one awarding mother with support of $810 per month for the three minor children in her custody and the other denying mother’s request to force father to contribute to the college expenses of the parties’ oldest child. Mother filed timely appeals from these orders.

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1.

2.

3. 4.

5.

6.

Mother raised the following issues in her appeal: Whether the trial court erred in failing to grant mother’s Petition to Enforce Agreement and by failing to enforce the parties’ agreement to share the costs and expenses of their children’s college education; Whether the trial court erred in failing to require father to reimburse and pay mother for his fair share of the expenses and costs associated with the parties’ daughter, paid to-date by mother, as well as those to be incurred in the future; Whether the trial court erred in calculation of the mother’s net monthly income; Whether the trial court erred in failing to calculate father’s net monthly income based upon his previously adjudicated and established earning capacity; Whether the trial court erred in calculating Guideline Support and by failing to include and allocate support for all additional expenses for the parties’ children; and Whether the trial court erred in failing to award mother counsel fees for father’s failure to comply with the parties’ agreement.

PENNSYLVANIA SUPERIOR COURT’S DECISION In addressing mother’s first issue, the Superior Court, per Bender, J., cited its recent decision, In re Estate of Johnson, 970 A.2d 433 (Pa. Super. 2009), wherein the court reiterated, “Pennsylvania law does not impose an obligation on parents to provide for their children’s college expenses.” The court also reiterated that a parent may assume financial responsibility for a child’s secondary education. See Emrick v. Emrick, 284 A.2d 682, 683 (Pa.1971); Bender v. Bender, 715 A.2d 1199, 1201 (Pa. Super. 1998). The court further noted that where a party seeks to enforce a disputed oral agreement, as in the instant matter, it is incumbent upon that party to establish the essential terms and conditions that constitute the enforceable agreement. Boyle v. Steiman, 631 A.2d 1025, 1033 (Pa. Super. 1993). In the instant matter, the record shows that during the marriage, the parties pooled their incomes and in October 2004, while the parties’ marriage was still intact, the parties agreed to pay for the children’s college educations from their pooled incomes. Mother argued that based on this October 2004 agreement, father should be required to contribute to the children’s college expenses. Mother further claimed that the parties’ two daughters were witnesses to such agreement. However, contrary to mother’s allegation, neither of the daughters’ testimony at trial advanced mother’s position. Father also testified that the only agreement he entered with mother was that she would continue to work and not retire. PENNSYLVANIA FAMILY LAWYER MARCH 2010

Based on the foregoing, the Superior Court agreed with the trial court in holding that the parties’ agreement in October 2004, was merely the couple’s expression of their continuing plan to pool their marital resources, and that there was no formula or agreement as to how much each parent would contribute towards the children’s college expenses. Having found that father was not contractually bound to contribute to the children’s college expenses, the court also rejected mother’s request for counsel fees, allegedly due to father’s failure to abide by the alleged agreement. Next, the court addressed mother’s issues pertaining to the trial court’s Jan. 22, 2009 support order, wherein the trial court reduced father’s monthly child support obligation from $1,094 to $810. On appeal, mother argued that the trial court erred in utilizing father’s actual earned income as a manger at a retail paint store in Alabama, rather than his earning capacity as a sales representative selling industrial water treatment systems. In rejecting mother’s argument, the Superior Court pointed out that a person’s earning capacity is defined “not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Gephart v. Gephart, 764 A.2d 613, 615 (Pa. Super. 2000). Judge Bender also discussed that the record supported the trial court’s credibility determinations in favor of father. At the evidentiary hearing, father presented a vocational expert, Donald F. Kirwan, a forensic economist, who outlined the multiple problems with father returning to work in the field of water treatment systems after a 16-year absence. Kirwan testified that not only has manufacturing declined, father’s work experience in the field was dated. Father corroborated Kirwan’s testimony as he testified credibly to his efforts in searching for employment. Based on the foregoing, the court held that it will not disturb the trial court’s credibility determination in favor of father. Mother’s next claim was that the trial court erred in its calculation of her net monthly income. The trial court calculated mother’s net monthly income to be $13,072. Mother’s own calculation resulted in $10,843. The court stressed that the reason for the difference in these two numbers is found in mother’s “Exhibit 17,” wherein mother utilized the basic standard federal income tax deduction totaling $8,350 in calculating her gross income, while the trial court utilized the itemized deductions on mother’s past returns. The court further pointed out that mother did not present any evidence during the hearing to indicate that she intended to discontinue claiming itemized deductions on her tax returns. In a more sharp tone, the court stated, “[t]he trial court simply discounted mother’s thinly veiled attempt to disguise her actual income in order to increase father’s support obligation.” (continued on Page 16)

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mother’s petition to enforce the alleged oral agreement and denied her request for counsel fees.

Mother also challenged the trial court’s inclusion of her stock options in the calculation of her net monthly income as they have not yet vested. However, father testified that the stock options had in fact vested on Jan. 12, 2009, one day before the evidentiary hearing. Subsequently, during cross examination, mother conceded that she is now entitled to redeem the first allotment of restricted stock and her gross proceeds would total approximately $14,000. Accordingly, the court rejected mother’s claim. See Mackinley v. Messerschmidt, 814 A.2d 680, 681 (Pa. Super. 2002) (stating “once vested, stock options become accessible to a parent and so should be accessible to her children as well”). In her final issue, mother argued that the trial court erred in failing to augment the basic minimum child support with an additional amount to account for the increased costs of the children’s “other needs” pursuant to Pa.R.C.P. 1910.16-6(d). Mother asserted that since the trial court’s previous support orders allocated support for the children’s other needs, it was bound by the law of the case doctrine to continue to include those discretionary expenses in its support award. The Superior Court rejected mother’s argument. Judge Bender explained that the “law of the case” doctrine is inapposite where, as here, the trial court is addressing a petition for modification based upon a material and substantial change in circumstances. See 23 Pa.C.S. §4352(a). Moreover, the court found that mother’s argument was factually inaccurate as the trial court addressed this precise claim in its Rule 1925(a) opinion and included a 25 percent upward deviation from the child support guidelines to account for the children’s increased expenses. As noted by the trial court, this 25 percent upward deviation increased mother’s monthly child support award beyond what she would have received in proportionate reimbursement for the discretionary expenses she identified during the evidentiary hearing. For all of the foregoing reasons, the Superior Court affirmed the final child support order entered on Jan. 22, 2009, wherein the trial court reduced father’s monthly child support obligation to $810, and affirmed the trial court’s order entered on Jan. 26, 2009, wherein the trial court denied

CASE NOTE AUTHOR’S EDITORIAL COMMENTS This case is yet another reminder to all practitioners that under Pennsylvania law, a mere contemplation or planning of payment for college expenses is insufficient to create a valid agreement (oral or written) to impose a contractual obligation on the parents to provide for their children’s college expenses. With respect to the earning capacity issue, mother had not presented any evidence concerning father’s earning capacity and once again relied on the “law of the case” doctrine (since the court had previously set a different earning capacity). But, this was a modification case and a new determination of incomes was warranted. See footnote 3 of the opinion. Father, through use of a vocational expert as well as his own testimony, highlighted the troubles he had in securing a job after a lengthy absence from the work force. Here, the lesson to take away is that when confronting an earning capacity issue, both parties have the task of gathering evidence (factual and/or statistical) that substantiates his/her position. Lastly, in regard to the issue of mother’s net monthly income, this author finds it interesting the Superior Court’s comment that mother should have indicated at the trial level that she intended to discontinue claiming itemized deductions on her future tax returns. When faced with calculating a parent’s net income for purposes of child support obligation, practitioners often consider all the various and legitimate factors that may result in several different net income values. However, based on this case, it appears that any significant change in the method of calculating a client’s net income should be prefaced with an explanation. Having said that, had mother actually indicated her intention to discontinue claiming itemized deductions on her future tax returns at the trial level, would the Superior Court given some credit to mother’s calculation? Or would the Superior Court still have treated mother’s calculation as just a self-serving ploy to decrease her net income available for support? Your guess is as good as mine!

PA. FAMILY LAWYER INDICES AVAILABLE: Vols. 1-20 (1980-98) in cloth binding ([email protected]) Vols. 21-23 (1999-2001) in 24 Pa. Family Lawyer 70 (November 2002) Vols. 24-26 (2002-04) in 27 Pa. Family Lawyer 63 (September 2005) Vols. 27-29 (2005-07) in 30 Pa. Family Lawyer 32 (April 2008) 16

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PFA STATUTE APPLIES TO ABUSE BETWEEN CHILD’S MOTHER AND PATERNAL GRANDFATHER BY ANDREW D. TAYLOR, ESQ. DeBOER v. SLUSSER 985 A.2d 974 (Pa. Super. 2009) The Pennsylvania Superior Court (Musmanno, Shogan, and McEwen, JJ.), in an opinion authored by Judge McEwen, affirmed an order by the Susquehanna County Court of Common Pleas (Seamans, J.) and held that the Protection From Abuse (PFA) statute applies between a child’s mother and paternal grandfather. In DeBoer, Charlene Slusser (mother) filed a PFA action against her child’s paternal grandfather, Douglas DeBoer (grandfather). Mother and grandfather’s son were never married. Mother alleged that grandfather pulled a gun from the glove compartment of his vehicle, showed it to her and stated that if he did not see his granddaughter that mother knew what he could do. The trial court entered a PFA Order against grandfather excluding him from mother’s residence and precluding all contact with mother except under very limited conditions. On appeal, grandfather argued that the PFA statute was not applicable between a grandfather and a child’s mother. In affirming the trial court, the Superior Court held that the term “abuse” is defined in the PFA statute as “[t]he occurrence of one or more of the following acts between family or household members, sexual or intimate partners, or persons who share biological parenthood: … [p]lacing another in reasonable fear of imminent serious bodily injury.” In addition, the act provides that the phrase “family or household members” includes those “persons related by consanguinity [i.e., blood] or affinity.” Grandfather argued that the definition of abuse limited the application of the statute to conduct that occurs between family or household members, sexual or intimate partners or persons who share biological parenthood. The Superior Court disagreed and held that, since grandfather and mother had a “direct blood relationship to the child, and by extension are inextricably linked to each other by that relationship,” the parties fit within the definition of the statute. The court also noted that the parties were more directly related by consanAndrew D. Taylor is an Associate in the Norristown office of Weber Gallagher Simpson Stapleton Fires & Newby LLP. He is a member of the Family Law Sections of the Pennsylvania Bar Association and Montgomery County Bar Association.

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guinity than the brother-in-law/sister-in-law relationship that was deemed adequate to invoke the protection of the act in McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006). In a footnote, the Superior Court also noted that the General Assembly has explicitly provided for grandparents to have visitation or custody rights of their grandchildren. Since the order in question in this case provided for the possibility of future visitation between grandfather and the child, the court apparently felt that this further contributed to the link between mother and grandfather. CASE NOTE AUTHOR’S EDITORIAL COMMENTS This case seems to fall in line with the trend that the Superior Court will broadly apply the PFA statute. It may seem like somewhat of a stretch that the mother of a child and the paternal grandfather are inextricably linked to each other by virtue of a “direct blood relationship to the child,” especially when the mother and grandfather’s son were never married and the grandfather did not have rights of custody when the PFA Order was entered. However, given today’s ever-expanding concepts and definitions of what comprises a “family,” a liberal interpretation of the statute may be appropriate.

Adoption and Surrogacy Committee Seeks Input The Family Law Section of the Pennsylvania Bar Association has recently approved the formation of a committee within the section to address current issues in adoption and surrogacy and to advise the section on proposed legislation. Any PBA member interested in serving on the committee or in offering input on these subjects is asked to contact Michael Shatto at the PBA, 100 South Street, PO Box 186, Harrisburg, Pa. 17108-1086; or Joe Martone, Martone & Peasley, 150 W. 5th St. Erie, Pa. 16507-2118.

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SUPREME COURT FINDS THAT REASONABLENESS MUST BE IMPLIED WHEN DETERMINING AN AWARD OF CONTRACTUAL COUNSEL FEES BY ELIZABETH J. BILLIES, ESQ. MCMULLEN V. KUTZ, 985 A.2d 769 (Pa. 2009) The Supreme Court, in a matter of first impression, granted wife’s appeal to determine whether a court could imply a reasonableness requirement into a contract provision that did not contain such a qualification. Wife, the nonbreaching party to a Marital Settlement Agreement, argued that the term “reasonable” could not be inserted into the Agreement’s enforcement provision, which provided that a non-breaching party should be awarded all counsel fees incurred as a result of the other party’s breach of the Agreement. In a decision that has been met with much dissension, the Supreme Court determined that, as a matter of public policy, reasonableness must be implied when determining an award of counsel fees under a contract. FACTS AND TRIAL COURT DECISION The facts of the case are as follows: On July 7, 2000, Marjorie McMullen (wife) and Ronald Kutz (husband) entered into a Marriage and Property Settlement Agreement to resolve their pending economic and support claims. The Agreement further provided that if either party breaches any of its provisions, he or she will be responsible for any counsel fees and costs incurred by the non-breaching party to enforce the Agreement. The Agreement’s enforcement provision specifically stated as follows: If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to his or her, and the party breaches this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this agreement. McMullen v. Kutz, 985 A.2d at 771. In 2005, wife filed a Petition to Enforce the Agreement alleging that husband had breached two of its provisions. First, wife alleged that husband had stopped paying child support before the defined emancipation date for their eldest Elizabeth J. Billies is an Associate with the Lansdale firm of Dischell, Bartle, Yanoff and Dooley, P.C. and a member of the Family Law Sections of both the Montgomery County Bar Association and the PBA.

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son. Second, wife alleged that husband had failed to forward to wife her full share of his military pension. Husband responded in opposition to wife’s Petition, arguing that he had not breached the Agreement. The trial court found for wife on both issues. After finding that husband had breached the Agreement, Judge Edward E. Guido of Cumberland County addressed the issue of wife’s counsel fees. Wife claimed that she incurred approximately $3,000 in counsel fees as a result of husband’s breach and that she, as the non-breaching party, was entitled to that entire amount pursuant to the Agreement’s enforcement provision. However, the trial court, which did not hold a hearing on the issue of counsel fees, rejected wife’s claim for $3,000, stating that such fees were unreasonable. Rather the trial court awarded wife $1,200, finding that such an amount was reasonable in light of the gravity of husband’s breach.i In determining the appropriate award, the trial court placed great emphasis on the fact that wife’s counsel made no effort to settle this matter prior to filing the Petition to Enforce the Agreement. SUPERIOR COURT DECISION Wife appealed the trial court’s decision regarding the award of counsel fees to the Superior Court. In her appeal, wife argued that the trial court erred in considering the reasonableness of the counsel fees incurred when the Agreement, contemplated and executed by both parties, did not contain such a condition. In their opinion, Judges Todd, Bender and Colville of the Superior Court framed the issue as follows: Is a reasonableness requirement implicit in a contract where such criterion is not explicitly stated? The Superior Court answered its own question in the affirmative. In making the determination that reasonableness is implicit in any contract, the Superior Court primarily relied on its 1981 decision of Duffy v. Gerst, 429 A.2d 645, 650 (Pa. Super. 1981). In Duffy, the Superior Court explicitly held that, “It may be assumed that implicit in this provision is the condition that the attorney’s fee must be a reasonable fee.” Duffy, 429 A.2d at 650. Judge Robert E. Colville dissented from the majority opinion, finding that although he agreed that reasonableness could be implied into the enforcement provision, he emphasized that a trial court did not have the authority to make a sua sponte determination of what is rea(continued on Page 19) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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sonable. Rather, the breaching party must make a specific objection to the fees claimed. SUPREME COURT DECISION Following the Superior Court’s decision, wife filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Supreme Court granted review of wife’s first alleged error: Wife argued that the lower courts erroneously implied a reasonableness requirement into the Agreement when the “plain language” of the enforcement provision states that the breaching party will be responsible for all counsel fees and costs incurred by the non-breaching party to enforce his or her rights under the Agreement. In her Petition, wife had also alleged that if the Supreme Court determined that the lower courts appropriately implied the term reasonableness into the Agreement, then the trial court erred in failing to conduct a hearing regarding whether the fees incurred by wife were, in fact, reasonable. However, the Supreme Court declined to address wife’s second issue in its Opinion. The Supreme Court determined that reasonableness is an implicit requirement in any contract. In making this determination, the Supreme Court first examined wife’s argument that that the plain language of the Agreement controls and, thus, a reasonableness requirement could not be inserted therein. In support of her position, wife cited two Superior Court decisions, Creeks v. Creeks, 619 A.2d 754 (Pa. Super. 1993) and Profit Wize Marketing v. Wiest, 812 A.2d 1270 (Pa. Super. 2002). Wife argued that both decisions stand for the proposition that a court may not imply reasonableness into a contract because the plain language of the contract is the “best indication of the parties’ intent.” Id. at 773 (quoting Creeks, 619 A.2d at 756). Wife further explained that as the “plain language” of the enforcement provision provides that the breaching party is responsible for all counsel fees incurred by the non-breaching party, then whether those fees are reasonable is not for the court’s determination. In short, the breaching party must pay all fees incurred, whatever the amount. The Supreme Court, per Justice Baer, who accomplished an extraordinarily detailed analysis of the nations’ rulings regarding the counsel fee issue, determined that wife’s reliance on the Creeks and Profit Wize Marketing decisions was misplaced. The Supreme Court explained that these cases only provide support to the general proposition that the plain language of a contract is paramount when determining the parties’ motives for executing such an Agreement. Rather, these cases do not support wife’s narrower position that reasonableness can not be implied into a contract. In PENNSYLVANIA FAMILY LAWYER MARCH 2010

fact, the central dispute in both Creeks and Profit Wize Marketing was not the reasonableness of the non-breaching party’s counsel fees, but whether the alleged breaching party had violated the Agreement at all. The Court also noted that, unlike the instant Agreement, reasonableness was, in fact, a stated criterion in the Creeks contract. Thus the Supreme Court found both the Creeks and Profit Wize Marketing decisions to be, “neither inconsistent nor relevant to the issues in this case.” Id. at 775. After finding that Creeks and Profit Wize Marketing were not applicable to the instant matter, the Supreme Court turned to the central questions at bar: Can a court find that a contractual provision regarding counsel fees require that the claimed fees be reasonable when the contract does not contain such criterion? And, if the answer to this first question is in the affirmative, does a court have the authority and/or obligation to question the reasonableness of those fees? As the Superior Court had done, the Supreme Court also answered its own questions in the affirmative. The Supreme Court held as follows: The dispute in this case concerns the trial court’s authority to address the reasonableness of the attorney fees claimed. Wife, and a minority of courts across the country, would read the plain language of the contract to require any and all fees incurred by the non-breaching party to be payable by the breaching party. We cannot accept this reading, however, because the potential for abuse is too high. If we were to forbid a reasonableness inquiry by a trial court, there would be no safety valve and courts would be required to award attorney fees even when such fees are clearly excessive. Instead, we join the majority of our sister states in finding that parties may contract to provide for the breaching party to pay the attorney fees of the prevailing party in a breach of contract case, but that the trial court may consider whether the fees claimed to have been incurred are reasonable, and to reduce the fees claimed if appropriate. Id. at 776-77 (footnotes omitted). After finding that the term reasonableness must be implied when evaluating a claim for counsel fees, the Supreme Court declined to address the issue of whether the fees claimed in this case were reasonable. However, the Court did acknowledge that its decision inadvertently resulted in the affirmation of the trial court’s award of $1,200 to wife. Justice Todd did not participate in the consideration or decision of this case. Justices Eakin and McCaffrey joined Justice Baer in the majority opinion. Justice Saylor con(continued on Page 20)

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curred in the result but dissented with regards to the opinion’s sweeping rule. Justice Castille also dissented, making the decision 4-2 in favor of making this holding the rule in Pennsylvania. CASE NOTE AUTHOR’S EDITORIAL COMMENTS The majority of the Pennsylvania Supreme Court has made its opinion indelibly clear: the concept of reasonable-

ness is implied in all counsel fee provisions of matrimonial agreements. If the parties had intended different they would have written “all counsel fees, cost and expenses, not just reasonable counsel fees, costs and expenses.” Justice Baer’s majority opinion and Chief Justice Castille’s dissenting opinion both provided professorial analyses of the opinions throughout the country. The Pennsylvania Supreme Court has sided with the majority of the states in its ruling. i

The trial court determined that husband owed wife a total of $792.12 in unpaid pension benefits and child support. Wife did not appeal this decision.

PENNSYLVANIA SUPERIOR COURT ABOLISHES EVIDENTIARY PRESUMPTION RELATING TO SAME-SEX RELATIONSHIPS IN CUSTODY AND AFFIRMS THE BEST INTEREST STANDARD BY CAROLYN R. MIRABILE, ESQ. M.A.T. v. G.S.T. ___A.2d___ (Pa. Super 2010) In M.A.T. v. G.S.T., the Superior Court comprised of Ford Elliott, P.J., Musmanno, Bender, Bowes, Panella, Donohue, Shogan, Allen, J.J.1 vacated the Dauphin County judge’s order dated Aug. 11, 2008, and remanded for entry of a custody order granting mother’s petition for modification of the custody order. The Superior Court in M.A.T. also overruled its prior holdings and reasoning in Constant A. v. Paul C.A., Pascarella v. Pascarella and Barron v. Barron and concluded a homosexual parent does not bear a special evidentiary presumption in a child custody case. A concurring and dissenting opinion (Shogan and Allen, J.J.) agreed on the legal standards applied by the majority but dissented with the disposition of the case. FACTS AND PROCEDURAL HISTORY M.A.T. (mother) and G.S.T. (father) were married September 1993. The parties adopted a daughter in 2004 as an infant. In February 2006, mother advised father she had been involved in a same-sex relationship with a friend since October 2004. In October 2006, mother filed for divorce and shared physical custody of daughter. Carolyn R. Mirabile is a Founding Partner in the Norristown firm of Lynch & Mirabile, L.L.P. She was a past member of the Pennsylvania Bar Association Family Law Section Council. She is also an active member and Past President of the Montgomery Bar Association Family Law Section and an active member of the Pennsylvania Bar Association Family Law Section.

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The parties jointly hired Deborah L. Salem to conduct a custody evaluation. Salem recommended shared physical custody to both parents on a rotating “3-2-2-3” schedule. Salem also testified that it would take daughter approximately 12 to 18 months to adjust to her parents’ separation. After a hearing, the trial court ordered the “3-2-2-3” schedule for a period of 18 months during the transition period. After the 18-month period, father was granted primary physical custody of daughter and mother was granted every other weekend, shared holidays and six weeks during the summer. Neither party filed an appeal to the May 30, 2007 Order. On March 3, 2008, mother filed a petition for modification of the May 30, 2007 order. Mother requested Salem provide an updated report. Salem testified the “3-2-2-3” schedule was in daughter’s best interest. Father testified it was in daughter’s best interest if he had primary physical custody. The appellate standard of review in custody cases is an abuse of discretion. Prior case law held once the heterosexual parent established a homosexual relationship by the other parent, the homosexual parent would have the burden of proving that exposure to the homosexual relationship would have no adverse effect on the children. See Constant, 496 A.2d 1 (Pa. Super. 1985). The M.A.T. Court overruled this evidentiary presumption and stated the burden of proof is shared equally by both parents in determining the best interest of the child in custody cases. The M.A.T. Court also held, although a trial judge is permitted to reject expert testimony in a custody case, the findings by the trial judge must be supported by evidence on the record. Moreover, a court must (continued on Page 21) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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consider four factors in determining whether to grant shared physical custody. Yates v Yates, 963 A.2d 535 (Pa. Super. 2008). Superior Court Judge Donohue noted in M.A.T. that preconceptions and prejudices about a homosexual household have no place in custody cases. The trial court admitted mother’s lesbian relationship played a role in the decision to award primary physical custody to father. The trial court also stated that mother failed to show her homosexual relationship would not have an adverse affect on her child and that the child’s best interests would be served by placing her in a heterosexual home. The Superior Court in M.A.T. noted in its opinion, in rejecting Salem’s recommendation, the trial court made its determination based on the trial judge’s own personal beliefs not supported by evidence on the record; “… it’s based upon my many years on the bench, my own personal experience as a parent, a grandparent, a foster parent.” The Superior Court noted the trial court abused its discretion when the trial court held the best interests of school-aged children are served in a primary physical custodial relationship. More importantly, Salem testified if she had to choose a primary custodian, she would have chosen mother. Since the trial court did not agree with Salem’s recommendation, the Superior Court noted that the trial court failed to show any evidence on the record that supported a finding it was in daughter’s best interest if father were granted primary physical custody. The lower court failed to cite any evidence in the record to support its finding that “[s]he needs constancy in routines … matters of discipline, chores, personal hygiene. … Daughter’s best opportunity to thrive socially and academically will be far better served by living, at least during the school week, in a single place.” On the contrary, the evidence showed daughter was doing well academically and had adjusted to the custody schedule. Salem had also testified, “[Daughter] would suffer from significant absence from one or the other of them.”

The Superior Court also decided the case on its merits, to avoid delay, and granted mother shared physical custody. The court held there was evidence on the record to support the finding that 1) both parents were fit, capable of making reasonable child-rearing decisions and willing and able to provide love and care for the child; 2) both parents evidenced a continuing desire for active involvement in the child’s life; 3) the child recognized both parents as a source of security and love; and 4) a minimal degree of cooperation between the parents was possible and therefore, shared physical custody was appropriate in this case. Although the concurring and dissenting opinion written by Judge Shogan and joined by Judge Allen agreed that the proper legal standards were not applied by the trial court, the concurring and dissenting opinion believed the trial court was in a better position to determine the best interests of the child. Judge Shogan believed that the case should have been remanded to allow the trial court to apply the correct standards and determine whether it was in the best interest of the child to grant mother shared physical custody. CASE NOTE AUTHOR’S EDITORIAL COMMENTS It is interesting to note that the Superior Court was concerned that daughter would have to transition from the partial physical custody schedule with mother back to the shared physical custody schedule. As such, the court wanted no further delay in changing the custody schedule and immediately entered an order on the merits of the case and awarded mother shared physical custody. The Superior Court also took note in abolishing all of its presumptions in custody cases. A reaffirmation that courts must consider the best interest of the child in making its determination. The Superior Court’s decision also provides guidance in the use of expert testimony and the circumstances under which shared custody should be ordered. 1

Judge Orie Melvin did not participate in the consideration or decision of this case.

Photos from the PBA Family Law Section 2010 Winter Meeting on page 58! See MANY more past and present photos by visiting the Family Law Section area of the PBA Web site! Just go to www.pabar.org/public/sections/famco/meetings.

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GRUBER TEST NOT CONTROLLING WHERE CHILDREN RELOCATED PURSUANT TO EARLIER ORDER BY ELIZABETH H. CEPPARULO, ESQ. R.M.G., JR. v. F.M.G., 986 A.2d 1234 (Pa. Super. 2009)

FACTUAL AND PROCEDURAL HISTORY R.M.G., Jr. (father) and F.M.G. (mother) conceived two children, born in 1999 and 2000, during their marriage. The parties divorced in 2004. When mother and father originally separated, they lived only a few miles away from one another. At that time, mother agreed to allow father primary physical custody of the children so they could finish the school year in their current school. At a subsequent Master’s hearing, the parties agreed that father would (1) retain primary custody of the children; and (2) relocate almost two hours away. Upon mother’s petition to modify, a hearing was conducted. The trial court issued an order maintaining shared legal and physical custody. However, the Westmoreland County Judge awarded mother more custodial time and ordered father to bear the majority of the transportation obligation. Father appealed. ISSUES ON APPEAL Father raised six issues on appeal, asserting the trial court erred: (1) in finding that a substantial change in circumstances existed to justify the modification; (2) in finding that the best interest of the children were served; (3) in failing to find that the best interests of the children was served by maintaining the status quo; (4) in failing to give positive consideration to father’s history as the children’s primary caretaker; (5) by requiring father to bear the majority of the transportation responsibilities; and (6) in failing to transfer venue or jurisdiction. LEGAL ANALYSIS The Pennsylvania Superior Court (Musmanno, Bender & Cleland, JJ), held that the trial court did not abuse its discretion to affirm the order. However, the court noted its “disagreement” with the trial court’s legal analysis. Specifically, the Superior Court found that the trial court placed inappropriate weight on Ferdinand v. Ferdinand,i and improperly applied a Gruberii test in reaching its conclusion.

Elizabeth H. Cepparulo is an Associate in the Doylestown firm of Williams & Hand, P.C. and a member of the Family Law Sections of the ABA, PBA and Bucks County Bar Association.

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Judge Cleland, for the Pennsylvania Superior Court, criticized the trial court’s reliance on Ferdinand, which it deemed inapposite precedent. In Ferdinand, the trial court denied mother’s petition to relocate to Michigan with her two children of different fathers, instead awarding custody to each of the two fathers. The Superior Court reversed for failure to consider the impact of separating siblings. Ferdinand, 763 A.2d at 823-24. The court in the current matter distinguished Ferdinand, finding that this case involved siblings who never lived together. It rejected the trial court’s reliance upon Ferdinand as precedent. Additionally, the court disapproved of the trial court’s reliance on the Gruber test. It noted that a Gruber analysis is necessary only when a parent requests to relocate with the children. In the instant case, mother had already agreed to father’s relocation with the children. Notwithstanding the aforementioned displeasure with the trial court’s reasoning, the court rejected all six of father’s contentions on appeal. Father’s first assertion, that the court erred by modifying an order where there was no significant change in circumstances, was rejected outright by the court. Citing the Custody and Grandparents’ Visitation Actiii and Karis v. Karis,iv the court reaffirmed that a change in circumstances is not a prerequisite to a custody modification, but rather the standard is the best interest of the child. The court next determined that although a change in circumstance is not a prerequisite modification, it is still an important consideration. In the instant matter, the children expressed a desire to spend more time with mother and the trial court correctly examined this fact. The court failed to explicitly address father’s third contention although it held that the trial court conducted a proper best interest analysis. Father’s fourth contention was rejected by the court, noting that father’s role as primary caregiver was addressed, as the children remained primarily in the care of their father. The court found no abuse of discretion in the trial court’s decision to assign the transportation duties primarily to father. Lastly, the court denied father’s assertion that the trial court improperly retained venue and jurisdiction after he moved to Altoona. Specifically, the court found that he waived his opportunity to preserve the issues for appeal and, regardless, the trial court was correct in hearing the matter. (continued on Page 23) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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CASE NOTE AUTHOR’S EDITORIAL COMMENTS The most significant practice tip derived from this case is that an agreement to relocate is treated differently upon a petition for modification than an original request to relocate. Specifically, the Superior Court clearly stated that a Gruber test is not necessary when a previously agreed relocation is before the court. Further, a Ferdinand analysis is likewise inapposite where half-siblings have never lived under the same roof. Lastly, the court reaffirmed that a change in circumstances is not required for modification but that the entire analysis centers on the best interest of the child. While

this may include many of the concepts with which we are familiar (i.e., changes in circumstances, primary caregivers, maintaining the status quo), the ultimate issue remains the best interest of the children. i ii

iii iv

763 A.2d 820 (Pa. Super. 2000). Gruber v. Gruber, 583 A.2d 434 (Pa. Super. 1990) (setting forth a three-part test for consideration by trial courts in relocation cases). 23 Pa. C.S.A. § 5301. 544 A.2d 1328, 1332 (Pa. 1988) (stating that “a petition for modification of a partial custody to shared custody order requires the court to inquire into the best interest of the child regardless of whether a ‘substantial’ change in circumstances has been shown”).

SOCIAL SECURITY DERIVATIVE BENEFITS CAN BE SUBJECT TO LEGAL PROCESS UNDER 42 U.S.C.A. §659 BY JONATHAN T. HOFFMAN, ESQ. SILVER V. PINSKY (731 MDA 2007) On Sept. 15, 2009, the Superior Court, in an en banc decision, written by Judge Gantman, affirmed the Order of the Dauphin County Court of Common Pleas, inasmuch as it subjected Social Security derivative benefits to be subject to legal process under 42 U.S.C.A. §659 to enforce a child support obligation. Additionally, the Superior Court found that the lower court erred in eliminating a parent’s support obligation altogether when the parent had means to reasonably support some of the children’s needs. FACTS Mother and father were married in 1991 and separated in 1998. At the time the opinion was written, the children were 16 and 13 years old respectively. Father was 69 years old and receiving Social Security benefits from which the parties’ children were receiving derivative benefits. Through the end of November 2006, mother was the representative payee of the Social Security derivative benefits of $1,128 per month. Under Pa.R.C.P. 1910.16-4, the benefits were properly included in the support calculation that determined the parties’ support Order. In addition, until Dec. 31, 2006, mother was the children’s primary physical custodian. Jonathan T. Hoffman is an Associate in the Norristown firm of Weber Gallagher Simpson Stapleton Fires & Newby, LLP, a member of the Montgomery County Bar Association Family Law Section and a member of the PBA Family Law Section. PENNSYLVANIA FAMILY LAWYER MARCH 2010

As of Jan. 1, 2007, the parties began to equally share physical custody of the children and as of Dec. 1, 2006, father became the representative payee of the Social Security benefits. On Dec. 5, 2006, father filed a Petition to Terminate the parties’ May 18, 2006 support Order. Father’s Petition was based on the parties’ agreement to share physical custody as of Jan. 1, 2007. On Dec. 12, 2006, mother filed a Petition to Increase Support due to father’s alleged increased income or earning capacity and her increased expenses for the children. At the Domestic Relations conference on mother and father’s Petition, two separate Orders were entered: The first was from Dec. 12 through Dec. 31, 2006, and the second was from Jan. 1, 2007, and prospectively. Both Orders required father to pay varying amounts of support to mother for the children. Both parties sought de novo review of the conference officer’s recommendations and a hearing was subsequently held on April 5, 2007. At the hearing, father argued that mother should be attributed a higher earning capacity for purposes of calculating child support and mother’s primary concerns were how to address the Social Security benefits that father was now the representative payee of. Further, mother argued that father’s earning capacity should be increased and asked the court to include certain additional expenses in the Support Order as mother was routinely hav(continued on Page 24)

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ing difficulty getting father to reimburse her for his share of the children’s additional expenses. Upon conclusion of the hearing, the lower court stated on the record that given the unique Social Security derivative benefits issue and that fact that custody was shared on a 5050 basis, the court would set father’s basic child support obligations and arrears at zero as of Jan. 1, 2007. Father was also directed to pay mother an amount equal to one-half of the $1,164 in Social Security derivative benefits he receives for the two children, or $582 per month, to prevent father from receiving a “windfall” as the representative payee. The court explained that the Order was meant to treat the parties identically, including their incomes. In addition to the splitting of the benefits, each party was responsible for onehalf of the children’s extra-curricular activities and the cost of medical insurance. Following the trial court’s Order, father filed a timely Notice of Appeal on April 27, 2007. On April 4, 2008, a panel of the Superior Court, with one judge dissenting, determined the trial court has erred in directing father to split the monthly Social Security derivative benefits of $1,164 after setting father’s basic support obligation at $0. The panel vacated the Order in part and remanded the matter for a new determination of father’s support obligation. Father subsequently requested re-argument and on May 30, 2008, the Superior Court grated father’s request, withdrew its panel decision and directed the case to be listed for an en banc panel. Prior to the en banc argument, both parties submitted substitute briefs, father raised eight issues on appeal. While six of father’s eight issues were dismissed or moot, the following issues were addressed by the Superior Court: 1. Whether the trial court had subject matter jurisdiction to award to mother, effective Jan. 1, 2007, half the Social Security check that father receives as representative payee for the children and/or to add to the arrears an amount equal to the children’s December Social Security check? 2. In the alternative, whether the trial court abused its discretion by awarding mother, effective Jan. 1, 2007, $582 monthly, equal to one-half the Social Security check that father receives as the representative payee for the children and by adding to the arrears $1,164, an amount equal to the children’s December Social Security derivative benefits? Father’s initial issue centers on whether the lower court had subject matter jurisdiction to alter the Social Security Administration’s decision to make father the representative payee and require him to split the benefits with mother. Father argues that federal courts have exclusive subject mat-

24

ter jurisdiction to review Social Security Administration decisions. Father additionally argues that even if the lower court had jurisdiction, that their division of his benefits constitutes legal process as defined by 42 U.S.C.A. §407(a)-(b). In making this argument, father relies on the notion that “protected funds such as benefit payments under the supplementary security income program cannot be reached through legal process.” Tunnicliff v. Commonwealth Department of Public Welfare, 396 A.2d 1168, 1171 (1978). In opining on father’s issue regarding subject matter jurisdiction, the court observed that, “Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented. Jurisdiction is a matter of substantive law.” 42 Pa. C. S. §931(a) The court went on to say that, “The trial court has jurisdiction if it is competent to hear or determine controversies of the general nature of the matter involved sub judice. Jurisdiction lies if the court had power to enter upon the inquiry, not whether it may ultimately decide that it could not give relief in the particular case.” Drafto Corp. v. National Fuel Gas Distribution Corp. 806 A.2d 9,11 (Pa. Super 2002.) (quoting Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa. Super 2001) The court found that with regard to father’s jurisdictional challenge, the central issue before the court was child support. The court was not asked to review or alter the Social Security Administration’s decision with regard to father’s designation as alternative payee and accordingly, the issues raised regarding child support were properly before the lower court and did not offend the law surrounding subject matter jurisdiction. The court additionally addressed father’s legal process issue under the Social Security Act and noted that Section 659 of the Social Security Act provides an exception to the general prohibitions contained in Section 407. This exception allows otherwise protected funds to be reached through legal process to enforce “the legal obligation of an individual to pay child support.” See U.S.C.A. §659(a). Accordingly, father’s argument regarding legal process is overridden by the carved out exception of §659(a). Father next argues that by not complying with the procedure laid out in Pa.R.C.P. 1910.16-5(b), which requires the court to consider nine factors before deciding to deviate from the guideline amount of support, that the trial court abused its discretion. Pursuant to this argument, father concedes that the Social Security benefits could arguable by considered “other income in the household” pursuant to 1910.16-5(b), however, in the present case the court did not consider any of the other factors including mother’s new husband’s income and the monies mother could earn if she worked full time. (continued on Page 25) PENNSYLVANIA FAMILY LAWYER MARCH 2010

CASE NOTES (continued from Page 24)

In response to father’s argument, the court found that the lower court judge under the rules and prevailing case law has reasonable discretion to deviate from the guidelines if the record supports the deviation. Ricco v. Novitski, 874 A.2d 75, 82 (Pa. Super. 2005). The court went on further to state, “In a support guidelines case, once the court has properly consulted the guidelines, it has the discretion to deviate from the guidelines figure, as long as the court provides adequate reasons for the deviation.” Landis v. Landis, 691 A.2d 943 (Pa. Super. 1997). The above cases must be tempered with the notion that, “The court has no legal authority to eliminate an obligor’s support obligation where the obligor can reasonably provide for some of the children’s needs.” Ricco, supra at 83.

In applying the law, the Superior Court found that while mother was representative payee, the benefits under the support guidelines, were used to reduce father’s support obligation, not eliminate it, so that the children continued to benefit from their mother’s receipt of the derivative benefits. Now that the parties share physical custody equally and father is the recipient of the benefits, the court found that it was an error of law for the trial court to simply eliminate consideration of the guidelines and split the derivative benefits between the parties, especially in light of the fact that no adequate reason as provided to justify the deviation. Accordingly, the part of the Order that set father’s support obligation at zero and split the derivative benefits was vacated and the matter was remanded to the trial court for a guidelines calculation and then a potential deviation for husband’s receipt of the Social Security derivative benefits. This resolution allows the court to achieve their stated intention for the children to benefit from their Social Security derivative payments regardless of whether they live with mother or father.

INDEX TO PENNSYLVANIA FAMILY LAWYER VOLS. 1-20 (1980-98) viii, 112p; 8 1/2 x 11; cloth binding All cases (with proper citations), articles cross-indexed by name and subject matter Prepared by and available from: Joel H. Fishman, Ph.D., Assistant Director for Lawyer Services Duquesne University Center for Legal Information: Allegheny County Law Library 921 City-County Building, 414 Grant Street, Pittsburgh, PA 15219 (412) 350-5353/fax (412) 350-5889 [email protected] Per copy: $35 + $2.45 (7% PA sales tax) + $4 (shipping and handling) = $41.45 Make check payable to Duquesne University Law Library

PENNSYLVANIA FAMILY LAWYER MARCH 2010

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Articles and Comments: Harry M. Byrne, Esq., Co-Editor, [email protected] Benjamin E. Orsatti, Esq., Co-Editor, [email protected]

CHANGES TO PA. SUPPORT GUIDELINES AFFECT HIGH-INCOME CHILD, SPOUSAL SUPPORT OBLIGATIONS BY ANDREW D. TAYLOR, ESQ.

On Jan. 12, the Pennsylvania Supreme Court adopted amendments to the Pennsylvania Support Guidelines. The most significant change contained in the amendments, which go into effect on May 12, deals with how high-income child support obligations are calculated by eliminating the longstanding needs-based analysis of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Under the amendments, highincome cases will be determined as all other child support cases are: based on a predetermined guideline amount of basic child support, without regard to the actual need of the parties. Other changes have been made that seem to suggest potentially increasing support from parents who have little or no contact with a child and limiting spousal support and alimony pendente lite payments in short-term marriages. HIGH-INCOME CASES Currently, if the parties’ combined net monthly income exceeds $20,000 per month, the obligor spouse’s child support obligation is calculated pursuant to Melzer. This requires a tedious analysis of each party’s “income available for support,” or the party’s net income less that party’s reasonable expenses. Next, an analysis is performed of each parent’s reasonable expenses for the children while in their care. Naturally, much litigation focuses around the veracity of each party’s purported expenses and whether these expenses Harry M. Byrne Jr. is the Founder of the Law Office of Harry M. Byrne Jr. in Bala Cynwyd, Past Chair of the Pennsylvania Bar Association Family Law Section and Articles/Comments Co-Editor of the Pennsylvania Family Lawyer. Benjamin E. Orsatti is an Associate in the Pittsburgh firm of Pollock Begg Komar Glasser LLC, a member of the Family Law Sections of the PBA and Allegheny County Bar Associations and Articles/Comments Co-Editor of the Pennsylvania Family Lawyer.

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are “reasonable.” In a Melzer case, each party is required to submit a comprehensive statement of expenses detailing his or her total monthly expenses, broken down by expenses for that party alone and expenses solely for the children. The parties must also submit voluminous documentation substantiating these expenses, which usually includes bank statements, credit card statements, receipts and the like. Not only does the implementation of Melzer vary from county to county, but litigating a Melzer case is time-consuming and costly. Under the amendments to the guidelines, Melzer is abandoned altogether. High-income cases are now subject to Rule 1910.16-3.1, which first provides that “high-income” cases are defined as those where the parties’ combined net monthly income exceeds $30,000 (increased from $20,000 in the current guidelines). Cases that do not meet the $30,000 threshold are decided as any other case and the basic child support schedule in Rule 1910.16-3 has been increased to provide support figures for families with combined net monthly incomes up to $30,000 (the support figures for combined net monthly incomes less than $20,000 have also been amended “to reflect updated economic data”). Rule 1910.16-3.1 contains a novel three-step process to determine support obligations in high-income cases. First, a formula is applied that essentially extrapolates a basic support obligation amount from the support schedule based on a set percentage of the combined net monthly income amount above $30,000 per month and the number of children (i.e. 6.5 percent for one child). For example, if the father’s net monthly income is $50,000 and the mother’s net monthly income is (continued on Page 27) Andrew D. Taylor is an Associate in the family law practice group at Weber Gallagher Simpson Stapleton Fires & Newby LLP in Norristown. PENNSYLVANIA FAMILY LAWYER MARCH 2010

ARTICLES AND COMMENTS (continued from Page 26)

$10,000, the father’s basic support obligation for one child is calculated as follows: $50,000

Father’s Net Monthly Income (83% of the combined Net Monthly Income) +$10,000 Mother’s Net Monthly Income (17% of the combined Net Monthly Income) $60,000 Combined Net Monthly Income $2,756

Presumptive Minimum Amount of Basic Support for One Child (Per Rule 1910.16-3.1(a)(1)) + $1,950 6.5% of Combined Net Income Above $30,000 Per Month ($30,000 x 6.5%) (Per Rule 1910.16-3.1(a)(1)) $4,706 Basic Support for One Child x 83% Father’s Percentage Share of Parties’ Combined Net Monthly Income $3,905 Father’s Basic Support Obligation. The second step requires that the trier of fact shall make any applicable allocations of additional expenses under Rule 1910.16-6. These “adjustments” include the allocation of child care, health insurance premiums, unreimbursed medical expenses and private school tuition. This rule also includes a potential adjustment for the spouse living in the marital residence and paying the mortgage on the residence; this “mortgage adjustment” has been amended slightly to make clear that it applies only during the pendency of the divorce litigation and not after a final award of equitable distribution has been made. Thus, in keeping with the example above, if the parties’ child were in private school at a cost of $1,000 per month, the father would be responsible for 83 percent of that amount, and an additional $830 would be added to the father’s obligation of $3,905 for a total of $4,735. The final step states that the trier of fact “shall” consider the deviation factors in Rule 1910.16-5, which include among others, unusual needs and fixed obligations of the parties, other support obligations of the parties, other income in the household, relative assets and liabilities of the parties, medical expenses not covered by insurance and, in spousal support or alimony pendente lite cases, the length of the marriage. The final two steps explained above have long applied to support cases decided under the guidelines. However, while the adjustments under Rule 1910.16-6 are routinely made by support masters and judges, the deviation factors in Rule 1910.16-5 are rarely applied to increase or decrease a support award. The amendments state that the trier of fact “shall” consider these deviation factors in high-income cases and PENNSYLVANIA FAMILY LAWYER MARCH 2010

shall make findings of fact on the record or in writing regarding the same. The existing language in Rule 1910.16-5 requires only that a trier of fact shall consider the deviation factors in deciding whether to deviate from the guideline amount of support. Further, the Explanatory Comment requires the parties to submit income and expense statements (and substantiating documentation) in order to enable the trier of fact to consider the deviation factors. It therefore seems apparent that support masters and judges will be required to consider these factors in reaching a final amount of support in high-income cases. Under the new Rule 1910.16-3.1, no mention is made about an adjustment in the award if the obligor has the children for 40 percent or more of the overnights per Rule 1910.16-4(c). However, when read in conjunction with the amendments to Rule 1910.16-4(a) that the formula in Rule 1910.16 shall be used to calculate the obligor’s support obligation in high-incomes cases, it seems that an adjustment will be made if the obligor has the children for 40 percent or more of the overnights. This is a change for high-income obligations since no adjustment for substantial physical custody is permitted in a Melzer analysis. LIMITED CONTACT WITH CHILD No changes have been made to Rule 1910.16-4(c), which reduces an obligor’s child support obligation when that parent has the children for 40 percent or more of the overnights. The amendments make clear, however, that the new monthly basic support schedule figures were increased to reflect not only the updated economic data, but the assumption that the children spend 30 percent of their time with the obligor and that the obligor makes direct expenditures on behalf of the children during that time. New language has been added in the explanatory comment to Rule 1910.16-4 that an upward deviation should be considered in cases where the obligor has little or no contact with the children and a downward deviation should be considered where the obligor incurs substantial fluctuating expenses during parenting time, but has infrequent overnights with the child. This theory, while perhaps implicit in the existing guidelines, has been made clear, and the potential for a deviation has been carved out for those who do not fall neatly into this assumption. Unfortunately, no guidance is given as to how to apply this deviation and how or when a support award should be modified in this scenario. SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE No major changes have been made to the rule providing for the calculation of spousal support and alimony pendente lite. In both high-income and other cases, spousal support (continued on Page 28)

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ARTICLES AND COMMENTS (continued from Page 27)

and alimony pendente lite will still be calculated by multiplying the difference of the parties’ net monthly incomes by 30 percent if there are dependent children and 40 percent if there are no children. Accordingly, Pennsylvania remains the only state in the country (and one of only a handful of jurisdictions) to use a rigid formula to calculate temporary spousal support as opposed to considering the actual need of the dependent spouse. In high-income spousal support and alimony pendente lite cases, Rule 1910.16-3.1(b) now requires the trier of fact to consider the deviation factors in Rule 1910.16-5 before reaching a final award. The length of marriage is still a deviation factor in considering a potential adjustment of the amount of a spousal support or alimony pendente lite award. However, the language in Rule 1910.16-5 dealing with the length of marriage as a consideration in limiting the duration of a spousal support or alimony pendente lite award has been moved to Rule 1910.16-1(c). This rule now states that, in determining the duration of an award for spousal support or alimony pendente lite, the trier of fact shall consider the length of the marriage from the date of marriage to the date of final separation.

The new Explanatory Comment reiterates that the purpose of this provision is to prevent the unfairness that arises in a short-term marriage when the obligor is required to pay support over a substantially longer period of time than the parties were married and there is little or no opportunity for credit for these payments at the time of equitable distribution. Despite this language having been included in Rule 1910-16.5 in the past, few support masters and judges limit the duration of spousal support and alimony pendente lite awards or terminate these awards after significant periods of time. Perhaps now, with this language being removed as a deviation factor and included in Rule 1910.16-1(c), this practice may be changed. Indeed, the most significant change in this round of amendments affects high-income individuals and the shift away from Melzer. While the new guidelines certainly streamline the determination of child support obligations in highincome cases and will save countless hours and counsel fees, a mechanical application of the guidelines cannot be and was never intended to be the only answer. Fair support awards will be achieved only if the guideline amount of support is used as a starting point and the deviation factors are consistently considered and applied. Regardless, on May 12, any litigant whose child support obligation was determined under Melzer would be well served to consider filing a petition to modify his or her obligation after comparing his or her current order against the obligation produced by new Rule 1910.16-3.1.

THE UNIFIED FAMILY COURT BY ADMINISTRATIVE JUDGE DAVID N. WECHT Beginning Jan. 25, the Fifth Judicial District’s Family Division, having expanded from 13 to 15 judges, launched a Unified Family Court (UFC). This initiative is designed to promote and implement the “One Judge, One Family” concept as a best practice reality for our court and the people it serves. The Unified Family Court also promotes cross-training and cross-competencies for our judges and bridges the divide between adult and juvenile judicial cultures. Each judge is now able to hear, and will hear, all types of cases. The judges are divided into five teams of three judges each. Each judge is now designated as either Unified Juvenile (UJ), Unified Adult (UA) or 50/50. Each of the five teams has one judge from each category. This designation determines what types of cases each judge will hear most often. The five UJ judges will focus mostly on dependency and delinquency issues but will hear domestic relations matters as well. The Hon. David N. Wecht is the Administrative Judge of Court of Common Pleas of Allegheny County, Family Division. The views expressed herein are those of the author.

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five UA judges will focus mostly on divorce, support, custody and protection from abuse (PFA) matters but will hear dependency and delinquency matters as well. The five 50/50 judges will split their time relatively equally between all matters. This new model will allow each Family Division judge to maintain his or her supervision of a case no matter what path that case follows. A family will no longer need to appear before multiple judges depending upon what issue the family is attempting to resolve. The judge most familiar with each case and family will be able to preside over all matters. Our Family Division will promote and implement “One Judge, One Family” and cross-competencies among our 15 judges without sacrificing the individual expertise and experience that judges have accumulated over time. This UFC initiative will help to better serve families, a goal that remains constant in our Division. It grows from a consensus-driven collaboration among our Family Division judges and draws upon both our experiences here in Allegheny County and the “One Judge, One Family” best practice model recognized nationwide. PENNSYLVANIA FAMILY LAWYER MARCH 2010

ANALYSIS OF A SUPPORT CASE BY DANA A. LEVINE, ESQ. AND BRIAN C. VERTZ, ESQ. CASH FLOW FOR SUPPORT PURPOSES. 1. Statutory definition of income. 23 Pa. C. S. § 4302. 2. Rules definition of income. Pa. R.C.P. 1910.16-2. FORM OF CASH FLOW

WHERE ON TAX RETURNS

CASE LAW AUTHORITY

Advances – shareholder (corporate distributions)

Schedule K-1, lines 20-21

Spahr v. Spahr, 105 P.D.D.R.R. 57 (2005), Diament v. Diament, 816 A.2d 256 (Pa.Super.2003); Heisey v. Heisey, 633 A.2d 211 (Pa.Super.1993)

Advances - partnership

Schedule K-1, lines 20-21

King v. King, 568 A.2d 627 (Pa.Super.1989)

Annuity income

Form W-2 or 1099

Arbet v. Arbet, 863 A.2d 34 (Pa. Super. 2004), 23 Pa.C.S. § 4302

Automobile expenses

Schedule C, line 10 Schedule E, line 6

S. Calabrese v. M. Calabrese, 682 A.2d 393 (Pa.Super.1996); Holland v. Holland, 663 A.2d 768 (Pa.Super.1995); Heisey v. Heisey, 633 A.2d 211 (Pa.Super. 1993); DeMasi v. DeMasi, 530 A.2d 871 (Pa.Super.1987)

Bonuses

Form W-2 or 1099

Woskob v. Woskob, 2004 WL 318566 (Pa.Super.2004); Blaisure v. Blaisure, 577 A.2d 640 (Pa.Super.1990); Fitchorn v. Fitchorn, 533 A.2d 1388 (Pa.Super.1987)

Capital gains

Schedule D, lines 8, 14

23 Pa.C.S. § 4302; Riley v. Foley, 783 A.2d 807 (Pa.Super.2001); Coffey v. Coffey, 575 A.2d 587 (Pa.Super.1990); Ramsey v. Ramsey, 48 Chester Co. L.Rep. 338 (2000).

Charitable or political contributions

Schedule K-1, line 7

Coffey v. Coffey, 575 A.2d 587 (Pa.Super.1990) (continued on Page 30)

Dana A. Levine, Esq., is an Associate in the Pittsburgh firm of Pollock Begg Komar Glasser LLC, and active in the Family Law Section of the Allegheny County Bar Association. Brian C. Vertz, Esq., MBA, AVA, is a Partner in the Pittsburgh firm of Pollock Begg Komar Glasser LLC, a Fellow in the AAML, active in the Family Law Section of the PBA and Allegheny County Bar Association and publishes a Web site and blog devoted to business and financial issues in divorce at www.bvsource.com. PENNSYLVANIA FAMILY LAWYER MARCH 2010

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ARTICLES AND COMMENTS (continued from Page 29)

FORM OF CASH FLOW

WHERE ON TAX RETURNS

CASE LAW AUTHORITY

Commissions

Form 1099

23 Pa.C.S. § 4302

Depreciation

Schedule C, line 13 Schedule E, line 21 Schedule K-1, line 8 Form 4562

Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. 2007), Labar v. Labar, 557 Pa. 54, 731 A.2d 1252 (1999), Labar v. Labar, 644 A.2d 777 (Pa.Super.1994); S. Calabrese v. M. Calabrese, 682 A.2d 393 (Pa.Super.1996); Holland v. Holland, 663 A.2d 768 (Pa.Super.1995); McAuliffe v. McAuliffe, 613 A.2d 20 (Pa.Super.1992) 23 Pa.C.S. §4302; Parker v. Parker, 335 Pa.Super. 348, 484 A.2d 168 (1984)

Disability income

Dividend income

Schedule B, line 5

Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007), Dennis v. Whitney, 844 A.2d 1267 (Pa. Super. 2004) Baehr v. Baehr,106 P.D.D.R.R. 28 (2005); Portugal v. Portugal, 798 A.2d 246 (Pa.Super.2002); Myers v. Myers, 592 A.2d 339 (Pa.Super.1991); Rock v. Rock, 560 A.2d 199 (Pa.Super.1989)

Earning capacity

Entertainment/meals

23 Pa.C.S. § 4302

Schedule C, line 24

DeMasi v. DeMasi, 530 A.2d 871 (Pa.Super.1987)

Gift income

Jacobs v. Jacobs, 884 a.2D 301 (Pa.Super.2005); Singleton v. Waites, 616 A.2d 644 (Pa.Super.1992)

Inheritance

23 Pa.C.S. § 4302; Drevenik v. Nardone, 862 A.2d 635 (Pa. Super. 2004), Maher v. Maher, 575 Pa. 181, 835 A.2d 1281 (2003); Fitzgerald v. Kempf, 805 A.2d 529 (Pa.Super.2003); Humphreys v. DeRoss, 567 Pa. 614, 790 A.2d 281 (2001)

(continued on Page 31)

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MARCH 2010

ARTICLES AND COMMENTS (continued from Page 30)

FORM OF CASH FLOW

WHERE ON TAX RETURNS

CASE LAW AUTHORITY

Insurance premiums - life

Schedule C, line 15 Schedule E, line 9

Heisey v. Heisey, 633 A.2d 211 (Pa.Super.1993); DeMasi v. DeMasi, 530 A.2d 871 (Pa.Super.1987); Pearson v. Pearson, 49 Chest.Co. L.Rep. 83 (2000)

Insurance premiums - malpractice

Schedule C, line 15 Schedule E, line 9

Chapman-Rolle v. Rolle, 893 A.2d 770 (Pa. Super. 2006), Holland v. Holland, 663 A.2d 768 (Pa.Super.1995) 23 Pa.C.S. §4302

Insurance proceeds Interest income

Schedule B, line 1

23 Pa.C.S. §4302; S. Calabrese v. M. Calabrese, 682 A.2d 393 (Pa.Super. 1996); Kessler v. Helmick, 672 A.2d 1380 (Pa.Super.1996)

Loan payments

See interest deductions on Schedules A, C & E

Jayne v. Jayne, 663 A.2d 169 (Pa.Super.1995); Lehman v. Lehman, 636 A.2d 1172 (Pa.Super.1994)

Loans, proceeds of

Fitzgerald v. Kempf, 805 A.2d 529 (Pa.Super.2003)

Marital property - sale of

Donnelly v. Donnelly, 463 A.2d 1182 (Pa.Super.1983); Buehler v. Buehler, 431 A.2d 1059 (Pa.Super.1981)

Military housing allotment

Krankowski v. O’Neil, 928 A>2d 284 (Pa. Super. 2009), Alexander v. Armstrong, 609 A.2d 183 (Pa.Super.1992); Bennethum v. Grundza, 93 Berks Co.Leg.J. 109 (2000)

Pension benefits

Form 1040, lines 15-16

23 Pa.C. S. § 4302

(continued on Page 32) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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ARTICLES AND COMMENTS (continued from Page 31)

FORM OF CASH FLOW Pension contributions - employer and employee

WHERE ON TAX RETURNS Form 1040, line 23 Form W-2, line 17

CASE LAW AUTHORITY Kessler v. Helmick, 672 A.2d 1380 (Pa.Super.1996); DeMasi v. DeMasi, 530 A.2d 871 (Pa.Super.1987) (employer contribution), Szafran v. Szafran, 344 A.2d 612 (Pa.Super. 1975), Murphy v. McDermott, 979 A.2d 373 (Pa. Super. 2009)

Perquisites - see also auto, entertainment, insurance

Arbet v. Arbet, 105 P.D.D.R.R. 16 (2005); Diament v. Diament, 816 A.2d 256 (Pa.Super.2003); Mascaro v. Mascaro, 764 A.2d 1085 (Pa.Super.2000), reversed in part, 803 A.2d 1186 (Pa.2002).

Personal injury lawsuit proceeds

Diament v. Diament, 816 A.2d 256 (Pa.Super.2003); Darby v. Darby, 686 A.2d 1346 (Pa.Super.1996); Butler v. Butler, 488 A.2d 1141 (Pa.Super.1985)

Rental income

Schedule E, line 24

23 Pa.C. S. § 4302; S. Calabrese v. M. Calabrese, 682 A.2d 393 (Pa.Super. 1996); Farabaugh v. Killen, 648 A.2d 60 (Pa.Super.1994); Leonard v. Leonard, 510 A.2d 827 (Pa.Super.1986); Francis v. Francis, 517 A.2d 997 (Pa.Super.1986)

Severance pay

Form W-2 or 1099

Hinkle v. Hinkle, 685 A.2d 175 (Pa.Super.1996), Berry v. Berry, 898 A.2d 1100 (Pa. Super. 2006)

Retained earnings

Schedule K-1, line 1

Fennell v. Fennell, 753 A.2d 866 (Pa. Super.2000); Hoag v. Hoag, 646 A.2d 578 (Pa.Super.1994), affirmed, 541 Pa. 621, 664 A.2d 1354 (1995); Blaisure v. Blaisure, 577 A.2d 640 (Pa.Super. 1990); King v. King, 568 A.2d 627 (Pa.Super.1989)

(continued on Page 33)

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PENNSYLVANIA FAMILY LAWYER MARCH 2010

ARTICLES AND COMMENTS (continued from Page 32)

FORM OF CASH FLOW Social Security

WHERE ON TAX RETURNS Form 1040, line 20a

CASE LAW AUTHORITY 23 Pa.C. S. § 4302; In re Estate of Johnson, 970 A.2d 433 (Pa. Super. 2007), Preston v. Preston, 646 A.2d 1186 (Pa.Super. 1994); CYS v. Chorgo, 491 A.2d 1374 (Pa.Super.1985)

Social Security disability

23 Pa.C. S. § 4302; Pa.R.C.P. 1910.162(b)(2); Maddas v. Dehass, 816 A.2d 234 (Pa.Super.2003); Bernstein v. Bernstein, 457 A.2d 1316 (Pa.Super. 1983)

Stock options

Mackay v. Mackay, 2009 WL 3790559 (Pa. Super. 2009), Murphy v. McDermott, 979 A.2d 373 (Pa. Super. 2009); Mackinley v. Messerschmidt, 814 A.2d 680 (Pa.Super.2003).

SSI (Supplemental Security Income)

Silver v. Pinsky, 981 A.2d 284, Whitmore v. Kenney, 626 A.2d 1180 (Pa.Super.1993); Landis v. Landis, 691 A.2d 939 (Pa.Super.1997), but see Rodrigues v. Rodrigues, FD86 0293 (Ally. Cy. 1997).

Tax refunds

Form 1040, lines 10 and 60a

Young v. Muthersbaugh, 609 A.2d 1381 (Pa.Super.1992); Farabaugh v. Killen, 648 A.2d 60 (Pa.Super.1994); O’Connell v. O’Connell, 597 A.2d 643 (Pa.Super.1991); Parkinson v. Parkinson, 512 A.2d 20 (Pa.Super.1986); Reisinger v. Reisinger, 471 A.2d 544 (Pa.Super.1984)

(continued on Page 34) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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ARTICLES AND COMMENTS (continued from Page 33)

FORM OF CASH FLOW

WHERE ON TAX RETURNS

CASE LAW AUTHORITY

Trust income

Schedule E, line 32

23 Pa.C. S. § 4302; Butcher v. Butcher, 769 A.2d 1218 (Pa.Super. 2001); Green v. Green, 783 A.2d 788 (Pa.Super.2001); Hoag v. Hoag, 646 A.2d 578 (Pa.Super.1994), affirmed, 541 Pa. 621, 664 A.2d 1354 (1995); Abarbanel v. Weber, 490 A.2d 877 (Pa.Super. 1985); Hillman v. Hillman, 140 P.L.J. 475 (1992)

Unemployment compensation

Form 1040, line 19

23 Pa.C.S. § 4302

Unreimbursed Employee Expenses (deduction from income)

Berry v. Berry, 898 A.2d 1100 (Pa.Super.2005)

Workers compensation

23 Pa.C. S. § 4302; Darby v. Darby, 686 A.2d 1346 (Pa.Super.1996); Babish v. Babish, 521 A.2d 955 (Pa. Super.1987); Witherow v. Witherow, 432 A.2d 634 (Pa.Super.1981).

2010 FAMILY LAW SECTION SUMMER MEETING July 8-11, 2010 • Hyatt Regency Coconut Point Resort & Spa, Bonita Springs, Fla. Take an e-tour of the resort at http://coconutpoint.e-hyatt.com

Reserve your room as soon as possible by calling Central Reservations at 1-888-421-1442 and referring to Pennsylvania Bar Association Family Law Section Group Code GPBA.

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PENNSYLVANIA FAMILY LAWYER MARCH 2010

THE TAXING SIDE OF DIVORCE: TAKING ADVANTAGE OF TAX SAVING MEASURES IN DIVORCE BY MARY V. ADE The significant emotional and financial costs of a divorce may be magnified in uncertain economic times such as we are currently experiencing. While the emotional costs cannot be minimized, some of the financial costs can be alleviated by judicious use of the tax breaks afforded divorcing couples. QUICK REVIEW OF INTERNAL REVENUE CODE SECTION 71 PROVISIONS Alimony payments are deductible by the payor under Section 215 of the Internal Revenue Code (IRC) and taxable to the payee under IRC Section 71 if all of the following requirements are met: • • • • •

The payment is in cash. The payment is not designated as nontaxable/ nondeductible. If legally separated, the spouses are not members of the same household at the time the payment is made. The payment is not treated as child support. The payments must end on the death of the payee spouse.

CONVERT PROPERTY SETTLEMENT TO TAXABLE/DEDUCTIBLE SECTION 71 PAYMENTS Payments between spouses do not have to be in the form of support to be afforded taxable/deductible treatment. If there is a significant difference in the spouses’ tax brackets, it may be advantageous to convert otherwise non-taxable property transfers to taxable/deductible “Section 71” payments. Example: As part of their property settlement, husband will pay wife $60,000 in two equal installments. The first

Mary V. Ade is a Director in the Dispute Advisory & Forensic Services Group of Stout Risius Ross, Inc., Southfield, Mich. She has over 20 years of experience in the field of Family Law. Ms. Ade’s experience encompasses a wide range of industries including manufacturing, construction, automotive suppliers, insurance, law firms, physician practices, dental and oral surgery practices, surgery clinics, construction contractors, restaurants, grocery stores, automotive dealerships, waste management, health care, stamping, advertising, retail, and wholesale distribution. She can be contacted at (248)432-1336; [email protected]. PENNSYLVANIA FAMILY LAWYER MARCH 2010

payment will be made in December 2009 and the second in January 2010. As property payments, husband’s cost will be $60,000 and wife’s benefit will be $60,000. Assume that husband is in the 35 percent tax bracket and wife is in the 15 percent bracket. Husband will pay wife a total of $70,600 ($60,000 grossed up for her 15 percent tax liability). The cost to husband will be $45,900 and wife will receive her full $60,000 (amounts rounded). Husband

Wife

Total Payments $70,600 Tax Savings/Cost @35%/15% ( 24,700)

$70,600 (10,600)

Net Cost/Benefit

$60,000

$45,900

Husband has now paid under $46,000 to satisfy a $60,000 obligation, thanks to the government “tax subsidy” of $14,000. Assume further that husband is willing to share the tax subsidy with wife and agrees to pay her an additional $4,500 with each payment. Husband

Wife

Total Payments $79,600 Tax Savings/Cost @35%/15% ( 27,900)

$79,600 ( 12,000)

Net Cost/Benefit

$67,600

$ 51,800

This example is a “win-win” situation. Husband saves approximately $8,200 while wife receives an additional $7,600. AVOID INTEREST EXPENSE LIMITATIONS BY CONVERTING INTEREST TO SECTION 71 PAYMENTS Property settlements often result in a promissory note from one spouse to the other to be paid over a number of years. As a general rule, interest expense related to divorcerelated settlement payments is considered personal, nondeductible interest. The spouse receiving payments will however, be required to report the interest payments and pay the taxes thereon. To avoid this situation, the interest pay(continued on Page 36)

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would be $7,580 (rounded). The total payments of $909,600 are equivalent to the above and avoid any potential tax issues.

ARTICLES AND COMMENTS (continued from Page 35)

ments can be qualified under Section 71 by providing that in the event of the payee’s death, the Section 71 payments (i.e., only the interest portion of the payments) would terminate, and that the payer would have no further obligation to make that portion of the payment. Of course, the principal of the note would still be owed to the payee’s estate or heirs. Example: Wife owns and operates a successful advertising agency valued at $1.6 million. Wife agrees to pay husband $800,000 and will execute a promissory note providing for 120 monthly payments of $8,100 at 4 percent interest. Both parties are in the 35 percent tax bracket. The settlement agreement is silent with regard to the taxability of the interest payments. The IRS determined (on audit) that the wife’s interest payments were non-deductible personal interest. Thus, the settlement cost to the wife exceeds the benefit to the husband by $60,000 (amounts rounded). Wife Total Principal Payments Total Interest Payments Total Payments Tax Savings/Cost @35% Net Cost/Benefit

$800,000 172,000 972,000 0 $972,000

Husband $800,000 172,000 972,000 (60,200) $912,200

Now look at the result if the settlement agreement had provided that the interest portion of the payments were qualifying Section 71 payments, taxable to husband and deductible by wife: Wife Total Principal Payments Total Interest Payments Total Payments Tax Savings/Cost @35% Net Cost/Benefit

$800,000 172,000 972,000 (60,200) $912,200

Husband $800,000 172,000 972,000 (60,200) $912,200

The divorce instrument should provide that both parties acknowledge that the interest payments are taxable to the payee and deductible by the payer. As an alternative to using Section 71 payments, the note could carry an unstated, after-tax equivalent rate. The IRS has ruled that the unstated and imputed interest rules do not apply to divorce related obligations between ex-spouses. Using our same example from above, now assume that the promissory note bears unstated interest at 2.6 percent (the 4 percent taxable rate less the 35 percent tax saving). The required monthly payment using the 2.6 percent interest rate

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CONVERT LEGAL FEES TO TAXABLE/DEDUCTIBLE SECTION 71 PAYMENTS In general, attorney’s fees for divorce related services are not deductible with the following exceptions: 1. Fees related to attempts to procure taxable income, even if not successful; and 2. Fees attributable to tax advice. By tax planning, parties can use the tax deductibility of attorney’s fees to allocate fees between the spouses. If, for example, husband pays to wife $10,000 as spousal support and wife pays her attorney’s fees from this money and she is able to deduct a significant portion of her fees, the transaction benefits both parties. It gives incentive for husband to pay wife’s attorney’s fees by making them tax deductible as spousal support and gives wife the partial tax deduction for attorney’s fees when incurred for the procurement of taxable alimony. The following is an example of how to take advantage of the “tax subsidy” provided by effective use of Section 71 payments: • Husband agrees to pay wife’s $10,000 attorney’s fees. • Assume half of wife’s attorney’s fee is attributable to efforts to obtain alimony. As such, she can deduct half the fee, but only if she pays it directly. • Wife is in the 15 percent tax bracket and husband is in the 28 percent bracket. • Husband’s payment will be set up as a taxable/ deductible payment, subject to termination on wife’s death. • Husband’s $10,000 payment will cost him $7,200 ($10,000 less the $2,800 tax savings). • Wife will be able to take advantage of the deduction for attorney’s fees. ACCESSING FUNDS IN QUALIFIED PLANS Qualified plans — 401(k)s, profit sharing plans, etc. — can provide a ready source of funds for payment of fees, credit card debt and other divorce related expenses. Internal Revenue Code Section 71(t)(C) provides an exception to the 10 percent penalty on early withdrawals. An Alternate Payee can be assigned an interest in the plans by means of a Qualified Domestic Relations Order (QDRO) and can withdraw the funds penalty free even if under age 59½. Most plans allow an immediate distribution. As an example, assume the following facts. • Both parties are in their early 40s and have 401(k)s with their respective employers. • The parties will need to withdraw a total of $80,000 ($20,000 will be due in regular income taxes). (continued on Page 37) PENNSYLVANIA FAMILY LAWYER MARCH 2010

ARTICLES AND COMMENTS (continued from Page 36)

• • •

They have credit card debt of $20,000 and fees of $40,000. Both parties are in a 25 percent tax bracket. Neither party wants to totally deplete their retirement account.

Wife can assign $40,000 from her 401(k) to the husband, who will request an immediate distribution. After payment of his $10,000 tax liability, husband will be required to pay $30,000 towards the parties’ combined debt. Husband will assign $40,000 from his 401(k) to wife, who will also request an immediate distribution and pay the other half of the debts and her $10,000 tax liability, all while avoiding the 10 percent penalty! ACCESSING FUNDS IN IRAS The penalty exemption afforded to qualified plans does not apply to IRAs. However, do not overlook the possibility of tapping into IRAs. Generally, if you are under age 59½, you must pay a 10 percent additional tax on the distribution of any assets (money or other property) from your traditional IRA. Distributions before you are age 59½ are called early distributions. The 10 percent additional tax applies to the part of the distribution that you have to include in gross income. It is in addition to any regular income tax on that amount. The following exceptions to the age 59½ rule may be particularly relevant in a divorce context. Even if you receive a distribution before you are age 59½, you may not have to pay the 10 percent additional tax if you are in one of the following situations. • You are receiving distributions in the form of an annuity. • The distributions are not more than your qualified higher education expenses. • You have unreimbursed medical expenses that are more than 7.5 percent of your adjusted gross income. • The distributions are not more than the cost of your medical insurance. Annuity. You can receive distributions from your traditional IRA that are part of a series of substantially equal payments over your life, or over the lives of you and your beneficiary, without having to pay the 10 percent additional tax, even if you receive such distributions before you are age 59½. You must use an IRS-approved distribution method and you must take at least one distribution annually for this exception to apply. The “required minimum distribution method,” when used for this purpose, results in the exact amount required to be distributed, not the minimum amount. PENNSYLVANIA FAMILY LAWYER MARCH 2010

There are two other IRS-approved distribution methods that you can use. They are generally referred to as the “fixed amortization method” and the “fixed annuitization method.” These two methods are not discussed in this publication because they are more complex and generally require professional assistance. Qualified higher education expenses. Qualified higher education expenses include tuition, fees, books, supplies, and equipment required for the enrollment or attendance of a student at an eligible educational institution. They also include expenses for special needs services incurred by or for special needs students in connection with their enrollment or attendance. In addition, if the individual is at least a half-time student, room and board qualify as higher education expenses. An eligible educational institution is any college, university, vocational school or other postsecondary educational institution eligible to participate in the student aid programs administered by the U.S. Department of Education. It includes virtually all accredited, public, nonprofit and proprietary (privately owned profit-making) postsecondary institutions. The educational institution should be able to tell you if it is an eligible educational institution. Higher education expenses. Even if you are under age 59½, if you paid expenses for higher education during the year, part (or all) of any distribution may not be subject to the 10 percent additional tax. The part not subject to the tax is generally the amount that is not more than the qualified higher education expenses for the year for education furnished at an eligible educational institution. The education must be for you, your spouse, or the children or grandchildren of you or your spouse. When determining the amount of the distribution that is not subject to the 10 percent additional tax do not include expenses paid with any of the following funds: • Tax-free distributions from a Coverdell education savings account. • Tax-free part of scholarships and fellowships. • Pell grants. • Employer-provided educational assistance. • Veterans’ educational assistance. • Any other tax-free payment (other than a gift or inheritance) received as educational assistance. Unreimbursed medical expenses. In situations where a family is facing extraordinary medical costs, IRAs can provide additional funds. Even if you are under age 59½, you do not have to pay the 10 percent additional tax on distributions that are not more than: • The amount you paid for unreimbursed medical expenses during the year of the distribution, minus • 7.5 percent of your adjusted gross income for the year of the distribution. (continued on Page 38)

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ARTICLES AND COMMENTS (continued from Page 37)

• •

You can only take into account unreimbursed medical expenses that you would be able to include in figuring a deduction for medical expenses on Schedule A, Form 1040. You do not have to itemize your deductions to take advantage of this exception to the 10 percent additional tax.

•

• •

Medical insurance. Unfortunately, many people have been temporarily laid off or lost their jobs due to the current economic conditions. Even if you are under age 59½, you will not have to pay the 10 percent additional tax on distributions used to purchase medical insurance for yourself, your spouse and your dependents. You will not have to pay the tax on these amounts if all of the following conditions apply.

You lost your job. You received unemployment compensation paid under any federal or state law for 12 consecutive weeks because you lost your job. You receive the distributions during either the year you received the unemployment compensation or the following year. You receive the distributions no later than 60 days after you have been reemployed. The distributions are not greater than the cost of the medical insurance.

FINAL COMMENTS An awareness of the tax consequences of divorce-related payments can result in a net tax savings, preserving more of the estate for the parties. We hope this article has heightened your awareness of some of the tax laws which, when properly used, can mitigate some of the high costs of divorce.

IN CASE YOU WERE WONDERING … RETIREMENT PLANS AND PLAN PARTICIPANTS’ DEATHS BY CAMI L. DAVIS, ESQ. Retirement and other employer provided benefits often account for a significant portion of a couple’s financial worth. It is essential to understand what benefits are available and to deal with these benefits in the divorce or settlement agreement. Equally important, participants must make any necessary changes in beneficiary designations following the divorce. Consider the following: A participant’s wife had relinquished her rights to her husband’s 401(k) plan in the property settlement agreement. The participant failed to change his beneficiary designation after the divorce and upon his death, the entire account balance was paid to the former wife. In January 2009, the U.S. Supreme Court ruled in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan that when a plan participant’s former spouse is named as the sole beneficiary at the time of the particiCami L. Davis is an Associate with Rothman Gordon P.C. in the Labor and Employment Law and Employment Litigation Departments. While Cami concentrates her practice on litigation, she works with clients on a variety of issues, including counseling related to employment policies and practices, employment discrimination, employment agreements, wage and hour issues, unemployment compensation and other human resource matters. Cami can be reached at (412) 3381127 or [email protected].

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pant’s death, the plan administrator is obligated to distribute the funds in accordance with the beneficiary designation. This holds true even if the former spouse waived his or her rights to plan benefits pursuant to a divorce settlement. The Kennedy decision is consistent with the precedent setting decision in Egelhoff v. Egelhoff, which resolved a split among the lower circuits on the issue of ERISA preemption. Egelhoff v Egelhoff (532 U.S. 141(2001)) David A. Egelhoff designated his wife, Donna Rae Egelhoff, as the beneficiary of a life insurance policy and a pension plan provided by his employer which was governed by the Employee Retirement Income Security Act of 1974 (ERISA). David Egelhoff died two months after the Egelhoffs divorced. His children then sued Donna Rae to recover the insurance proceeds and the pension plan benefits. The children relied on a Washington state statue that provides that the designation of a spouse as the beneficiary of a nonprobate asset — defined to include a life insurance policy or employee benefit plan — is revoked automatically upon divorce. Subsequently, the proceeds would pass to the children as David’s statutory heirs under state law. Under ERISA, the state trial courts granted Donna Rae summary judgment. In reversing, the Washington Court of Appeals (continued on Page 39) PENNSYLVANIA FAMILY LAWYER MARCH 2010

ARTICLES AND COMMENTS (continued from Page 38)

found that the statute was not preempted by ERISA. In affirming, the Washington Supreme Court held that the statute does not “refer to” ERISA plans to an extent that would require preemption. In a 7-2 opinion, the U.S. Supreme Court held that that the Washington statute has a “connection with” ERISA plans and is therefore pre-empted. “Differing state regulations affecting an ERISA plan’s ‘system for processing claims and paying benefits’ impose precisely the burden that ERISA preemption was intended to avoid. The statute at issue here directly conflicts with ERISA’s requirements that plans be administered, and benefits be paid, in accordance with plan documents.” A look at a few state court decisions regarding both ERISA preemption and the need to be specific when dividing employer provided benefits Sweebe v. Sweebe (712 N.W.2d 708. (Mich. 2006)) The Michigan Supreme Court ruled that ERISA’s preemption provision does not preclude a named beneficiary from waiving the proceeds from a life insurance policy. In their divorce proceeding, husband and wife agreed to give up any interest either had in any insurance policy. When the husband died, the administrator of his employee benefit plan distributed the proceeds to the widow. But the court said that the former wife could not retain the benefits. While a plan administrator must pay benefits to the named beneficiary as required by ERISA, the court explained that this does not mean that the named beneficiary cannot waive her interest in retaining these proceeds. Once the proceeds are distributed, the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds. Here, the former spouse had signed a provision in her judgment of divorce in which she extinguished any interest she had or may have had in any insurance contract or policy of the decedent. The court found that because she had clearly and unequivocally waived her right to the plan proceeds, she had no legal right to retain the proceeds under the waiver provision in the judgment of divorce. In Re: Estate of Paul J. Sauers, III, Deceased (2009 PA Super 75 (4-17-09)) In this case, as in Sweebe, the proceeds of an employer provided life insurance plan were paid to a former wife in accordance with plan documents. The former wife was ordered by the trial court to surrender the life insurance proceeds to her ex-husband’s nephew, the designated contingent beneficiary in the plan documents. The former wife appealed PENNSYLVANIA FAMILY LAWYER MARCH 2010

the ruling on the basis that the Pennsylvania statute was preempted by ERISA. The Pennsylvania Superior Court ruled that the preemption provisions of ERISA prohibit a plan administrator from distributing the proceeds of a life insurance policy to a person other than the named beneficiary in the plan documents. However, the court went on to say that the Pennsylvania statute that states the designation of a former spouse as a beneficiary is ineffective unless there is a specific intent that the designation survive the divorce is not preempted by ERISA. The statute specifically states that “Any former spouse to whom payment is made shall be answerable to anyone prejudiced by the payment.” Thus, the former wife was required to surrender the proceeds of the policy to the nephew. Martin v. Martin (2009-Ohio-67) The Judgment of Divorce in this case provided that “each party shall receive 50 percent of the other parties’ retirement accrued as of Nov. 21, 2003.” Ms. Martin submitted a Qualified Domestic Relations Order (QDRO) to the trial court that assigned 50 percent of the accounts plus any interest, dividends, etc. earned between Nov. 21, 2003, and the actual date of distribution. The court refused to enter the QDRO stating, “The value of a retirement plan may go up or down based on the value of the assets in the fund. If the value of the ‘other’ person’s retirement plan decreased in value, the value of the grant remains the same. ... Any increases in the funds do not affect what the plaintiff is to receive …” Ms. Martin appealed the decision of the trial court. The Court of Appeals affirmed the decision finding that under the clear wording of the provision in the judgment of divorce, Ms. Martin was entitled to a sum certain. The parties could have provided that Ms. Martin share in earnings, gains and losses but did not do so. Cook v. Cook (TN No. E2007-COA-R3-CV – February 2008) Linda Jean Cook (wife) was awarded one-third of her husband’s First Tennessee National Savings Corporation Savings Plan and Trust as of Oct. 22, 1993. An acceptable QDRO was never presented to the plan administrator and 10 years after the divorce, wife requested the court to order her ex-husband to file a QDRO assigning one-third of the plan in shares of stock, which had appreciated considerably since the divorce. Husband maintained that wife was entitled to a specific dollar amount instead. Wife’s expert testified that wife’s one-third of the shares in the plan at the time of divorce had appreciated to a value of $171,461. Husband’s expert testified that wife’s portion of the Plan as of Oct. 23, 1993, was $27,588. The court agreed with husband’s expert, awarding wife $27,588 plus 6 percent interest for a total of $46,182. The Court of Appeals affirmed. (continued on Page 40)

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ARTICLES AND COMMENTS (continued from Page 39)

COMMENT: The facts in these cases are hardly unique. The importance of defining the exact benefits to be divided is essential. Obviously, the value of the assets in the accounts had risen between the dates of divorce and the dates of the appeals. Consider the opposite: If the accounts had incurred significant market losses, as we have seen recently, it may have been the participants appealing the rulings. In Re Marriage of Sawicki v. Sawicki (346 Ill.App. 3d, 1107 (2004)) The Sawickis were divorced on Nov. 3, 2002, after a lengthy trial. Mr. Sawicki was retired and receiving disability retirement payments. The amount of Mr. Sawicki’s pension was based on approximately 27 years of participation in the plan, 13 of which predated his marriage to Ms. Sawicki. Ms Sawicki’s expert testified that the marital portion of the pension was 87.5 percent by comparing the accrued benefit at the date of the marriage to the accrued benefit at the date of divorce. The trial court agreed with the expert, determined the marital portion of the benefit to be 87.5 percent, and awarded 50 percent to Ms. Sawicki. Mr. Sawicki appealed, contending that the marital portion of his disability pension was actually 38.4 percent. The Court of Appeals agreed with Mr. Sawicki and remanded the issue to the trial court to recalculate the marital portion of the pension using a fraction with a numerator equal to the number of years of marriage during which benefits were accumulated, and the denominator equal to the total number of years during which benefits were accumulated prior to the divorce. Kazel v. Kazel (3NY 3d 331 (2004)) Although the facts are different, the holding in this case is similar to that in Martin above. The Kazels were divorced in 1991 after a 28-year marriage. A QDRO was entered providing that Ms. Kazel was to receive a percentage of Mr. Kazel’s monthly pension at such time as he retired or at his earliest eligible retirement date. Mr. Kazel died in 2001, before reaching retirement age. Ms. Kazel’s application for preretirement death benefits under the pension plan was denied by the plan administrator on the basis that QDRO made no assignment of the death benefits. Ms. Kazel then petitioned the court to enter a modified QDRO granting her a share of the death benefits. The court denied Ms. Kazel’s motion and its decision was appealed. The Court of Appeals affirmed the lower court decision stating “A judgment of divorce and qualified domestic relations order awarding an interest in the husband’s

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pension plan do not automatically include preretirement death benefits available under the plan. If the intent is to distribute such benefits, that should be separately, and explicitly stated.” In Re the Marriage of: Hendrickson v. Hendrickson (307Wis.2d, 443 (2007)) Ms. Hendrickson appealed a post divorce order granting her a share of her ex-husband’s disability pension in lieu of his retirement pension. Ms. Hendrickson argued that the court erred by replacing her fixed percentage of Mr. Hendrickson’s retirement pension with a fixed-dollaramount from his disability pension. Mr. Hendrickson crossappealed on the grounds that his disability was not subject to division. The Court of Appeals agreed with Mr. Hendrickson citing Wisconsin precedent. “In Wisconsin, neither future disability benefits, nor the present value of those benefits, are divisible assets in a divorce.” Further, “a service-connected disability benefit is compensation for impairment of the body, and it is not in the nature of an asset acquired or accumulated through the marital relationship.” Heger v. Heger (184 Md.App, 83 (2009)) At issue in this appeal was wife’s request to be named beneficiary of the husband’s survivor benefits. At the time of the divorce, Mr. Heger, a former police officer, was retired and receiving a disability pension. The trial court ordered Mr. Heger to pay Ms. Heger a 32 percent share of his pension payments but made no award of survivor benefits. The Court of Appeals affirmed the ruling on the basis that Ms. Heger failed to offer evidence that the pension plan provided survivor benefits or that she was entitled to them if they did exist. Ziobrowski v. Ziobrowski (TN No. M2006-COA-R3-V7 – December 2007) The final divorce decree in this case incorporated a memorandum that valued and divided the parties’ marital party. The decree provided, in part, that “Wife is awarded one-half of the $676.60 monthly benefit payable on account of the old General Motors retirement account.” After an almost 10-year delay, a QDRO was approved that would have provided Ms. Ziobrowski a monthly benefit in excess of $1,000. Mr. Ziobrowski appealed. Ms. Ziobrowski argued that the $676.60 figure in the divorce decree was merely an estimate of the future benefit and that her benefit should not be limited to 50 percent of this amount. The Court of Appeals ruled that the divorce decree clearly assigned a monthly benefit of $338.30 to Ms. Ziobrowski. The case was remanded to the trial court to (continued on Page 41) PENNSYLVANIA FAMILY LAWYER MARCH 2010

ARTICLES AND COMMENTS (continued from Page 40)

amend the QDRO to limit Ms. Ziobrowski’s monthly benefit to $338.30. COMMENT: The above cases all illustrate the importance of being familiar with the terms of the plan to be divided, knowing the applicable state statutes and precedent and using specific language in the judgment of divorce or settlement agreement to clearly define the intent of the parties.

FINAL THOUGHTS The facts in the above cases are not unusual, but repeated in one variation or another in many cases across jurisdictions. There are however, a few common themes that have universal application: • Know what benefits an employer provides. • Define exactly which benefits are to be divided. • Make explicit determinations as to how benefits are to be divided. • Be sure the language in the judgment and QDRO is clear, concise and accomplishes the intent of the parties or mandate of the court. • Be diligent in changing beneficiaries after the divorce (if appropriate).

THE EFFECT OF ISLAMIC FAMILY LAW ON NORTH AMERICAN FAMILY LAW ISSUES BY ALEXANDRA LEICHTER, ESQ. INTRODUCTION In an age of multi-culturalism, family law attorneys must become familiar with the impact religious customs and laws may have on civil family law issues. The areas in which Islamic law and custom impact civil family law in Western countries can be categorized as follows: 1.

2.

3.

Enforcement of a deferred Mahr (dowry) amount contracted for an Islamic marriage contract: a. where the Islamic marriage contract was signed in an Islamic country; b. where the Islamic marriage contract was signed in a Western country; Civil enforcement of substitute property rights under a Nikah (marriage) contract in lieu of property rights granted by Western laws; Recognition in a Western country of a divorce decree obtained in an Islamic country under Shari’a law and of a marriage contracted under Shari’a law in a Western country;

Alexandra Leichter is a Specialist in Family Law, Certified by the California Bar Board of Legal Specialization, and she is a Certified Family Law Arbitrator, Certified by the American Academy of Matrimonial Lawyers. She is a fellow of both the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers. Her Beverly Hills practice emphasizes family law litigation, consultation, private judging , and arbitration. Alexandra can be reached at (310)278-3112; fax (310)657-4346; [email protected]; www.familylaw-privatejudge.com. PENNSYLVANIA FAMILY LAWYER MARCH 2010

4. 5.

Conflicts between custody laws in Islamic and Western countries; Religious court arbitration of Nikah agreements, support and custody rights.

This article will focus on the manner in which various states in the U.S. and, in some respects Canadian provinces, have dealt with the family law conflicts between civil law and Islamic family laws. Because both the U.S. Constitution and Canadian Constitution mandate separation of church and state1, courts walk a very fine line between adjudicating religious issues (which are forbidden), and enforcing rights and obligations obtained through religiously based contracts and/or customs. Before proceeding, however, a basic understanding of Shari’a — or Islamic — family law and customs, as well as the vocabulary of such sectarian laws and customs is necessary.

BASIC PRIMER ON ISLAMIC LAW AS IT RELATES TO FAMILY LAW ISSUES: Shari’a: The term Shari’a, which is commonly used to refer to “Islamic law,” has been defined as “the highway of good life.”2 Although Shari’a, according to believers, is the product of divine revelation,3 it has also, undoubtedly, been shaped by hundreds of years of legal theory and interpreta(continued on Page 42)

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tion.4 As a result, Shari’a family law schools of thought and implementation vary among Islamic countries and sometimes even within various parts of the same country.5 Koran (Quran): The Koran is believed by Muslims everywhere to be the written form of divine revelations made to the Prophet Mohammed.6 Sunna & Hadith: The sunna are the practices of the Prophet Mohammed and provide the basis for the hadith, which are the traditions and sayings attributed to the Prophet.7 The Koran, the sunna and the hadith were not committed to writing until well after the death of the Prophet.8 Thereafter, over the centuries, scholars and jurists developed, through a process of analogical deduction, consensus of the jurists, and other juristic devices, based upon the Koran, the sunna and the hadith, a body of laws that are now referred to as Shari’a, Islamic law.9 Four schools of law developed among the Sunnis10 and two main schools developed among the Shi’as.11 Varying support for these schools of law among the Muslim world has led to differences in the substance of Shari’a family law among Muslim countries.12 (A comprehensive analysis of the differences in theology and practice among the schools is beyond the scope of this article.) MARRIAGE AND DIVORCE RIGHTS AND RITES UNDER ISLAMIC LAWS Shari’a family law, as compared to current modern Western family laws, is not egalitarian. For example, Shari’a allows a man to divorce a woman unilaterally and without cause, while a woman may only divorce a man if he is recalcitrant, or under other very limited circumstances. If a woman cannot show a valid legal right to divorce her husband, she may still be able to divorce him (subject to the decision of the Shari’a court), but she will most likely forfeit her contractual dowry rights, which often constitute the sole means for her post-divorce survival. As another example, Shari’a almost always grants physical custody of children to the mother until the boy reaches age 7 (in some countries even as young as 2), and until the girl reaches age 9 or 11 [or puberty]; thereafter, the father or the father’s family, if the father is not available, in most jurisdictions, not the mother or the mother’s family, is granted physical custody of the child — see discussion on hadana below). Furthermore, a mother may also lose physical custody of her children if she remarries, even if she does so legally after she obtained a valid religious divorce.

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With certain limitations, Shari’a allows polygamy, but never polyandry13. However, many countries utilizing Shari’a family law allow a woman to offset some — but certainly not all in most circumstances — of these default inequalities by contractually setting out her rights in the marriage contract (nikah) signed by the parties before the marriage. Marriage under Islamic law is a contractual relationship bolstered by certain rights and obligations inherent in Shari’a. A valid Islamic marriage is a contract (a nikah), effected by an offer, usually from the woman or her guardian (often her father or brother), and an acceptance by the man.14 No imam is necessary to conduct the marriage ceremony; usually two adult witnesses, and in some cases just “publicizing” the marriage, is sufficient to render the marriage valid if all other provisions of Islamic law are effectuated. Generally, the man accepts, agrees to, and pays a dowry (called mahr or saddaq). When a marriage contract is completed, the “woman comes under her husband’s ... authority, control and protection.”15 “[T]he Shari’a conception of marriage (is) dominated by two presuppositions: Women render their sexual favors and in return they gain the right to maintenance.”16 Each party to the marriage has certain rights and obligations under Shari’a.17 However, some of these rights and obligations are defined differently in various Islamic countries, and it is these rights and obligations that may be augmented or abrogated to a certain degree in the marriage contract itself (depending on the provisions of the law in that particular country)18. For example, in many of the Islamic countries, a wife may insert into the marriage contract the reasons for which she may be entitled to divorce (even without the husband’s consent). In contrast, and most importantly, however, the marriage contract may not alter husband’s unfettered right to divorce his wife without cause, as that right is deemed to be unalterably granted to husband by Shari’a. Under Shari’a, divorce is accomplished by the husband pronouncing, the word talaq (I repudiate you) three times. Authorities and countries differ on how and when this may be accomplished and procedures differ from country to country or even from region to region within that country. Generally, however, under Shari’a a husband must pronounce the word talaq at a time when his wife is not menstruating, and then successively do so twice more during each of the periods following the cessation of the wife’s menstrual cycle. In some jurisdictions, husband may pronounce talaq three times in succession on the same occasion, provided it is done at a time during which wife is not menstruating. Thereafter, wife is in an ’idda, or waiting period, for three months, during which time she is forbidden to remarry. This ’idda period is also significant for the wife, because the husband is required to continue to give mainte(continued on Page 43) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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nance to wife during the ’idda period, but not thereafter19. (There is no such thing as long-term or lifetime maintenance, alimony or spousal support under Shari’a. That is one reason why the amount of mahr the wife receives upon divorce is such an important part of the marriage contract — the amount of mahr, in many cases, is all the wife may have to survive on if the husband divorces her)20. The important thing to remember about talaq is that husband needs absolutely no reason to divorce his wife. He must simply accomplish the means by which that is done as is dictated by the specific Islamic jurisdiction or country in which he seeks to accomplish this. In contrast, other means by which the parties may dissolve their marriage are usually initiated or requested by women. Khul (or mubarat) is a divorce accomplished with the agreement of the husband, wherein the wife may initiate the divorce, but, the price for such ability to divorce is that the wife usually gives up her right to all or part of the mahr provided for in her marriage contract, or she gives some other compensation to the husband to allow her to be divorced from him. Tatliq (or tafriq) is a means by which the courts may grant a divorce to a woman on specified grounds even if the husband does not consent to the divorce. In most Islamic countries, the marriage contract itself may stipulate specific reasons whereby a woman is entitled to request and be granted an unconditional divorce without giving up her mahr. These grounds for allowing the wife to obtain an unconditional divorce are set forth in the nikah agreement and may include a whole host of reasons, such as husband marrying a second wife, husband prohibiting her from working or some other specified grounds. However, these grounds must also be proven in the Shari’a court, and the right to such a divorce is subject to the decision of the Shari’a judges21. The wife may specify in her nikah agreement that she can request and be granted a divorce without grounds, just as a man can, without forfeiting her mahr22. Under very limited circumstances, even where the nikah agreement doesn’t set forth grounds for the wife to divorce her husband, wife may still use tatliq or tafriq where the husband is guilty of acts forbidden by Shari’a, as a means to obtain a judicial divorce from her husband without his consent and still be entitled to her mahr rights. The marriage contract usually provides for a stipulated amount of dowry (mahr) which is payable by the husband to the wife. Generally, (although this varies by custom) a small portion of the mahr is payable upon signing of the agreement and a much larger, “deferred portion,” is payable upon divorce or death of the husband. (Parties can also stipulate PENNSYLVANIA FAMILY LAWYER MARCH 2010

that the deferred portion is payable at any time upon wife’s demand, although it is rarely demanded in an intact marriage). In many of the Islamic marriages taking place in the U.S., it has become customary to have only a “token” mahr inserted into the marriage contract. This is especially true in Islamic marriages where the parties and their families have become more “Americanized” or “Westernized.” This “token” mahr may also have been influenced by American jurisprudence, which appears loathe to enforce nikah agreements that appear to be unjust. Thus, nikah agreements in North America are often looked upon more as a “religious” rather than a “contractual” agreement, with the mahr being characterized as a “token of affection” shown by the groom toward the bride. This is not necessarily universal even in the U.S. Nevertheless, family law attorneys faced with nikah agreements in divorce situations should be willing to explore the customs of the married couple, their family and their community to determine whether the minimal amount of mahr was really intended by the parties to be the sole amount the wife would be entitled to receive upon divorce or whether it was to be merely a religious symbol or other token of the marriage under Islamic law and custom. In most Islamic countries, the wife’s entitlement to marital property is limited to the mahr that is provided for her in the marriage contract. (She is also entitled to the assets that are in her name, and her own earnings during marriage that still remain upon divorce). All assets acquired in the husband’s name and all earnings of the husband are generally deemed to belong solely to the husband.23 The nikah not only specifies the amount of money to be paid to wife in case of divorce, the agreement, if silent, also presupposes the application of Shari’a to prevent wife from claiming any property acquired during the marriage with husband’s efforts or property in his name. In many cases, the only asset to which the wife may lay claim upon divorce is the amount of the deferred mahr. In many instances, the amount of the mahr is a source of pride and bragging rights. For example, many men will stipulate to a much larger amount of mahr than what they can possibly afford at the time of the marriage (or that they ever hope to acquire in the future). That is because they simply want to show off to the bride’s family, to friends and to neighbors, how much they’re willing to, and by implication, how much they are able to afford to pay; and they simply assume they will never have to pay it. In turn, the bride’s family may also attempt to obtain a commitment of very high mahr amount so that they can brag to friends how much money their daughter was valued in the marriage. (It should be remembered that husbands do not receive any mahr or other dowry under an Islamic marriage contract). (continued on Page 44)

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Mut’a (Temporary Marriage) Recognized only in the Shi’a sect of Islam, Mut’a (which in Arabic means “pleasure”) is a “marriage contract with a defined duration which can be from some minutes to 99 years. It legitimates the sexual union as well as the children born into it.”24 The temporary marriage contract must have a definite period and a definite payment of mahr. This type of contract does not entitle the husband to have the type of control over the wife that he would be entitled to have under a regular marriage (i.e., He does not have the right to prevent her from working or prohibit her from obtaining a specific type of employment) and by the same token, the temporary wife is not entitled to maintenance. There is no divorce of a temporary marriage — it simply expires by its terms, or the husband can “gift” to the temporary wife the balance of the time that he has, in effect purchased, but the wife has no such option. While the man can enter simultaneously into as many mut’a marriages as he wants, a woman can only do so one at a time and cannot contract another one until the expiration of the ‘idda of two menstruation periods following the end of the mut’a period.25 Children of a mut’a marriage are considered legitimate and are entitled to support. Mut’a marriages are not permitted in any other sect of Islam, other than Shi’a. CUSTODY RIGHTS UNDER ISLAMIC LAW The Doctrine of Hadana governs “physical child custody” rights under Islamic law. The law of the particular Islamic country varies with respect to the age of the child where physical custody is automatically granted to the father. Under Shari’a generally: The child of a father is recognized only if the parties were married (whether a full legal marriage, or a mut’a, a temporary marriage)26. A child born out of wedlock or of an incestuous relationship is not deemed to be the child of the father and the father would thus have no obligation to support, and no legal or custodial rights to the child. a) With respect to children from a legitimate marriage or from a temporary marriage, the doctrine of Hadana provides, essentially: i) The mother is entitled to “physical” custody of her male child up to the age of 7 (in some countries it is a lower age, even as low as post-nursing age, or the age of 2), and of her female child up to the age of puberty (in some countries it is a specific age of 9 or 11)27. If the father is unfit for physical custody once the child reaches the requisite age, the child’s paternal male relatives, and not the mother, are given custody, although this, too, varies from country to country.

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ii) The mother’s right to hadana is also subject to the control of the father who is the child’s natural guardian — in other words, the father has sole “legal” custodial rights, known as wilaya, and has the sole power to determine, for example, whether the child obtains a passport, the course and place of his education, etc. If the father is not available or is incompetent to exercise such legal custodial rights, it is often the father’s family that will have sole legal guardianship or sole legal custodianship of the child, although this, too, varies by country. The mother can lose custody before the child reaches the requisite age if she is an “apostate,” i.e. wicked or untrustworthy. The mother can also lose custody before the child reaches the requisite age if she cannot promote the religious or secular interests of the child. 28 Most significantly, mother can also lose custody of the children if she remarries someone other than from father’s family. ENFORCEMENT OF A NIKAH AGREEMENT In North American family law cases, the conflicts often arise regarding entitlement and interpretations of the deferred mahr in the nikah agreements. When nikah agreements have been enforced in American or Canadian courts, they were done by analyzing the nikah agreement as a contractual document rather than a “religious” document and they may also be given validity as a “premarital agreement,” subject to the same requirements and analyses as civil prenuptial (premarital) agreements. In a case involving a lengthy marriage, it is the husband who is likely to seek enforcement of the nikah when the amount of the mahr is likely to cost him a lot less than giving the wife her share of assets acquired during the marriage and to which she would be entitled under the civil law of that state. In such cases, the husband will seek to invoke the law of the Islamic country where the agreement was signed or the Shari’a laws of the particular Islamic school under which they were married. In contrast, in a case involving a short marriage,or where the deferred mahr amount is likely to be far greater than the assets acquired during marriage, it is the wife who will seek enforcement of the nikah. Often the wife may even claim that her rights to the mahr are not exclusive and that she may, in addition to the mahr, be also entitled to her share of marital assets under civil law. In either case, the outcome may often involve huge sums of money. However, even a “token” mahr that is customarily part of a U.S. nikah agreement can present a problem. While such a token mahr may well be unenforceable in a U.S. court that may dismiss the agreement as merely “religious” and thus “unenforceable,” that may not be the case if (continued on Page 45) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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the parties migrate or return to an Islamic country where the divorce court in that country may well enforce the “token” mahr and leave the wife without resources or her fair share of other marital property. Family law cases in the U.S. and in Canada appeared to have ruled upon validity and enforceability of nikah agreements and entitlement of the mahr using several legal analyses29. In cases where the nikah agreement met the requirements of that particular state’s Prenuptial Agreement laws, the mahr was enforced.30 For example in Odatalla v. Odatalla31, a mahr of $10,000 in an Islamic Marital Agreement was sought to be enforced by the wife; the court upheld the agreement on neutral principles of law, not on religious policy or theories, and the nikah was held to be an enforceable agreement. Of course, the fact that the negotiations for the specific amount of Mahr were videotaped and the agreement was shown to have been freely and voluntarily executed was a key factor in the court’s decision, finding that there was no need to resort to religious interpretations of the contract. Similarly, in Akileh v. Elchahal32, a sadaq of $50,000 in an Islamic marriage contract was determined to be a valid prenuptial agreement based upon neutral principles of law, without having to resort to interpretations of Shari’a or other religious law. And, in the Canadian province of British Columbia, in the case of Nathoo v. Nathoo33, a mahr of $20,000 was held enforceable on neutral principles of law. The facts found by the court showed that the parties discussed the amount and negotiated with each other in coming to the terms. The court held: “Our law continues to evolve in a manner which acknowledges cultural diversity. Attempts are made to be respectful of traditions which define various groups who live in a multi-cultural community.”34 Additional factors, interestingly, included the court’s finding that the mahr agreement did not oust the provisions of applicable civil family law with respect to the wife’s entitlement to property under the civil laws of the province. The Nathoo case provides an insight into the types of nikah agreements and mahr provisions that are more likely to be enforced. Those nikah agreements that provide for the mahr amount to be the sole remedy of the wife upon divorce, coupled with the apparent inadequacy of the mahr amount (as compared to the civil property and support rights to which the wife would ordinarily be entitled in the absence of such an agreement), have generally fared very poorly. These types of nikah agreements, which envision mahr to be the sole remedy upon divorce, will be interpreted under the premarital laws in effect for that state or province. PENNSYLVANIA FAMILY LAWYER MARCH 2010

For example, Khan v. Khan35 involved a one-year marriage, with a nikah agreement signed in Pakistan, whereby wife waived her right to support upon divorce. Husband claimed the arranged marriage was in order to effect a sponsorship of the wife to Canada. The court held that the nikah was unconscionable, that wife did not understand the terms and import of the contract, she had had no independent legal advice, husband took advantage of a significant disparity of bargaining power, and the consequences were unconscionable because the wife was entirely dependent on husband while she was in Canada. The court found that the terms of the contract were too vague to be sure that support was in fact waived. (The court also held that the signing of the “sponsorship agreement” by the husband had the effect of undoing any support waiver).36 Neutral principles of law have also been used to invalidate nikah agreements. For example, in Habibi-Fahnrich v. Fahnrich37, an Islamic marriage agreement providing for “a ring advanced and half of husband’s possessions postponed” was deemed unenforceable in New York for failure to adhere to the Statute of Frauds because a) material terms were not agreed upon, i.e. what is “one half,” what is “one half interest” and what is the extent of “interest,” b) the contract was not specific, i.e., “possession” and definition of “one half of the possessions,” and c) the term “postponed” is left undefined and further clarification is left up to the reader to determine, and d) the agreement was insufficient on its face. Similarly, in In re Marriage of Dajani38, the California court refused to enforce a mahr because it contravened public policy of promoting divorce by providing for a set amount to be awarded to the wife in the event of a divorce.39 In other words, the Dajani court interpreted the nikah agreement under neutral principles of prenuptial agreement law that was in existence in California at the time the case was decided. In cases where the courts would have had to resort to interpretations of Shari’a to determine the meaning of the agreement, courts were much less likely to enforce the agreement. For example, in Shaban v. Shaban40, the marital agreement was executed in Egypt and it barred the wife from obtaining anything upon divorce other than mahr. The agreement provided that “The above legal marriage has been concluded in Accordance with his Almighty God’s Holy Book and the Rules of his Prophet to whom all God’s prayers and blessings be, by legal offer and acceptance from the two contracting parties.” The California court held that even if the language might have indirectly indicated a desire for the marriage to be governed by the rules of the Islamic religion, it simply bore too attenuated a relationship to any actual terms or conditions of a prenuptial agreement to satisfy the statute of frauds, and was held to be unenforceable as a premarital agreement. (continued on Page 46)

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It is important to note that in many states, if the nikah agreement is to be analogized and is sought to be enforced as a “premarital” or a “prenuptial” agreement, particular requirements of that state’s premarital agreement laws must be adhered to in order to make it enforceable. Such requirements may include, by statute, full disclosure of all assets and liability, access to legal advice, a specific “waiting period” between the time the contract is presented and it is signed, etc.41 Although the reading of these cases make it difficult to generalize, it appears that where the conscience of the court is not offended by the terms of the agreement (or in contrast, where the conscience of the court is so shocked by the terms of the mahr as to make it difficult to enforce), courts have resorted to using “neutral principles of contract law” to interpret and validate (or invalidate, as the case may be) these religious marriage contracts. If the agreement met the requirements of Statute of Frauds, and if parol evidence may be used to interpret but not to alter the agreement it will generally be deemed irrelevant whether such agreement was entered into as a “religious contract.” The cases reveal that courts have paid a lot of attention to the circumstances under which the agreement was negotiated and signed. CONFLICTS BETWEEN ISLAMIC AND NORTH AMERICAN MARRIAGE/DIVORCE LAWS Numerous other issues arise in family law cases where the Islamic parties contracted marriages in Islamic countries, or contracted marriages in Western countries but only in accordance with Shari’a without civil solemnization. For example, where the parties enter into a religious marriage in a Western country but do not solemnize it in accordance with the laws of the Western country, such marriages will generally be deemed void. To understand the difference between Islamic marriages and Western countries’ civil marriages: Most Western countries deem marriage to be a creature of statute and thus permission must be obtained from the state and compliance with the solemnization laws must be strictly adhered to. In contrast, Islamic marriages are a product of contractual agreements between the parties (or their families), and even though certain Shari’a laws and procedure must be followed, the Islamic marriage is not a creature of statute, it is a creature of contract. This is true, even if, as is the case in some Islamic countries, registration of the marriage is mandatory. Even in those countries where registration of marriage is mandatory, failure to officially register does not render the relationship adulterous nor does it de-legitimize the children, it may only deprive the parties of benefiting by some of the legal rights the country affords validly registered marriages.

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Rights and obligations of marriage are accorded by Western countries only to those who abide by and conform to the specific marital ceremonies prescribed by the states or the countries in which they resided at the time of marriage.42. Therefore, is the results reached in a case such as Farah v. Farah43, are not surprising. In Farah, the Pakistani Muslim couple signed a proxy nikah agreement in London, England, that provided for a $20,000 mahr, but neither party was present during the proxy ceremony in England. In a divorce case filed a year later, the Virginia (U.S.) court held that the marriage was invalid because English law requires certain formalities for a marriage to be valid and does not recognize the type of proxy marriage which these parties entered into. Therefore, if the marriage was deemed to be void ab initio under English law where the marriage was celebrated, it is not recognized as a valid marriage Virginia. This, despite the fact that under Islamic law in Pakistan, such a proxy nikah agreement is perfectly valid. (The Virginia court held, in dicta, that if the proxy marriage had occurred in Pakistan where proxy marriages are deemed valid, the Virginia court would have enforced the nikah agreement absent any public policy against its enforcement). In the case of Moustafa v. Moustafa44, the tables were turned and the wife was granted annulment in Maryland on the grounds of bigamy. The Maryland court was asked to apply Egyptian law by the husband who claimed that he divorced his first wife, married the second wife, remarried the first wife without obtaining a divorce from the second (without first wife’s knowledge), and then renounced his marriage to the first wife in Egypt. Thus, husband asserted that Maryland had no jurisdiction to annul a marriage that no longer existed. Unfortunately for husband, the Maryland court held that the renunciation of the marriage in Egypt was to be given no effect in Maryland as wife had never been notified nor participated in the proceeding in Egypt, and since the husband did not properly bring before the court any Egyptian law that he claimed allowed him to have more than one wife, wife was granted the annulment. One of the most recent cases illustrates the strict scrutiny to which courts subject a party who claims divorce or marriage rights pursuant to laws of other countries (at least where religious issues intersect with the secular laws of the state). In Aleem v. Aleem45, wife filed for divorce in Maryland and while the case was pending, husband rushed to the Pakistani Embassy and performed talaq. Husband then claimed in the civil court of Maryland that since he had already divorced his wife under Pakistani law, wife was entitled solely to her mahr of $2,500 that the Pakistani courts allow her, and not her half of the jointly acquired assets which amounted to approximately $2 million. The Maryland Court found that talaq lacks any significant “due process for the wife” and the lack and deprivation of due process is con(continued on Page 47) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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trary to Maryland’s public policy; thus talaq was denied any comity, and wife was entitled to proceed with her divorce in accordance with Maryland civil law. CUSTODY ISSUES IN ISLAMIC MARRIAGE CASES Custody cases involving Islamic parties prior to the enactment and the adoption by most of the states in the U.S. of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) were generally decided based upon a determination of whether the foreign Islamic court merely rubberstamped the Shari’a law (hadana) and granted father custody of children over a specific age, or whether the Islamic court also engaged in a “balancing test” of what was in the best interest of the child. For example, in Ali v. Ali46, the Shari’a court in Gaza granted a divorce and custody of the child to father who had returned to Gaza with the child after having lived in New Jersey with the mother for two years (mother remained in New Jersey). The New Jersey court not only held that the child’s “home state” was New Jersey, but also held that the Shari’a court’s decision was arbitrary, capricious and not sanctioned by the court as being in the best interest of the child. The New Jersey court appeared to be offended by the fact that under Shari’a law, the father is automatically and irrebuttably entitled to custody when a boy is 7 years old, without examining whether such custodial award is in the best interests of the child. For a long time, the seminal case of Hosain v. Malik47, was the leading case cited by many courts in ruling upon the issue of enforcing a custody order issued by an Islamic court. In Hosain v. Malik, both parties were citizens of Pakistan. After the marriage dissolved in Pakistan, father sued for custody of their daughter, and mother fled to the U.S. with the child (she had a student visa) where she moved in with a man and conceived another child whom she hid from the father for two years. Mother was represented by counsel in the Pakistani custody proceeding but she refused to appear in person and refused to obey the Pakistani judge’s order that the child be produced; the father was awarded custody by the Pakistani court. Thereafter, the father sought enforcement in Maryland of the Pakistani order granting him custody, while mother filed a complaint in Maryland requesting custody and a restraining order against the father. Islamic experts on both sides testified that the Pakistani court was required to consider the welfare of the child, but the experts disagreed about whether the court applied the best interests test or if it based its decision solely on hadana (referred to as hazanit in the opinion, although it is more accurately called hadana). The appellate court agreed that the Pakistani custody decree, PENNSYLVANIA FAMILY LAWYER MARCH 2010

granting father custody, should be enforced, because it found that the Pakistani court considered the “child’s best interest” as well as hazanit (hadana)48 when it made the custody determination. More importantly, the appellate court also held that the trial court could properly determine the best interest of the child “by applying relevant Pakistani customs, culture and mores.”49 The court went on to acknowledge that hadana was similar to “the traditional maternal preference” once applicable in Maryland that “are based on very old notions and assumptions (which are) widely considered outdated, discriminatory, and outright false in today’s modern society,” but that, ”We are simply unprepared to hold that this longstanding doctrine of one of the world’s oldest and largest religions practiced by hundreds of millions of people around the world and in this country, as applied as one factor in the best interest of the child test, is repugnant to Maryland public policy.”50 It is important to note in this case that the Pakistani court’s decision rested on several factors: a) Mother forcibly removed the child from the father’s access (under hadana father is always the legal guardian of the child, regardless of the child’s age, and regardless of the mother’s physical custodial preferences for children under a certain age) b) Mother lived with another man in adultery and had a child with him (her right under hadana to physical custody of children under a certain age was no longer applicable to her) c) Child was living in a non-Islamic society (this, too, is one of the factors in which hadana will be forfeited by the mother) d) Father was living in an Islamic society (this coupled with the other three factors above, rendered father eligible to have custodial rights of the children even though they may be under the age under which hadana grants custody to the mother) Although the mother argued that the Pakistani court penalized her for not appearing at the custody hearing, and that if she had appeared, she would have been arrested and severely punished for adultery, the Maryland court held that there was nothing repugnant or even foreign for a court considering adultery or failure to appear in court as factors in determining the best interest of the child. The important factor in the court’s decision was that the mother had an opportunity to be heard and that she decided not to take it. In Amin v. Bakhaty51, the parties married in Egypt. The father was also a citizen of the United States and spent the majority of his time in New Jersey tending to his anesthesiology practice. He would visit Egypt at most six times a year, for a week to 10 days at a time, but he did not stay with his wife or their child while he was in Egypt. When the mother (continued on Page 48)

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traveled to United States with their son and searched for an apartment in Louisiana near her family where they (mother, son, and father) would reside, the father brought criminal charges against the mother in Egypt for removing the minor child from the country without his permission, and for fraud in her procurement of son’s Egyptian passport, which she obtained without his consent. (Note that, under the doctrine of wilaya, father has the right to sole legal guardianship of a child and he has the sole right to determine where the child is educated, whether and when he obtains a passport, etc.) Mother was convicted in Egypt, in absentia, and sentenced to serve three years’ imprisonment, while father received sole custody of the son after a Talak divorce in Egypt. (Note that this case was determined under the UCCJA52, before the UCCJEA53 was enacted). The trial court in Louisiana found that it had jurisdiction to determine custody and support for the child, it declined to recognize Egypt as the child’s “home state” under the UCCJA, and granted interim custody to mother and ordered father to pay $850 per month in child support. The appellate court affirmed, finding that the lower court’s holding that Egypt was not a “state” under the UJJCA was a discretionary one and not erroneous. It also held that the Egyptian law that mandates both temporary guardianship and physical custody of the child to be exclusively with the father does not abide by the “best interest of the child” standard and thus the Egyptian court’s decision on custody was not binding on Louisiana. (It is quite possible that a reverse decision would have been made under the new UCCJEA — see discussion below). With the adoption of the new UCCJEA in the latter part of the 1990s and early 2000s in almost every state54 in the United States, the picture for enforcement of custody orders from foreign countries, especially those from Islamic countries changes drastically. It should be noted first and foremost, that almost none of the Islamic countries are signatories to the Child Abduction provision of the Hague Convention. Thus, Islamic countries are not bound to enforce a U.S. custody order. Notwithstanding that fact, the UCCJEA has a provision adopted by most of the states in the U.S. which provides: “(a) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this chapter and Chapter 2 (commencing with Section 3421). (b) Except as otherwise provided in subdivision (c), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this part must be recognized and enforced under Chapter 3 (commencing

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with Section 3441). (c) A court of this state need not apply this part if the child custody law of a foreign country violates fundamental principles of human rights.”55 (Emphasis added) Thus, this provision of the UCCJEA now mandates that child custody determinations made in a foreign country (regardless of whether such foreign country is a signatory to the Hague Convention) are to be recognized much the same as those of a sister state, unless the child custody law of a foreign country violates fundamental principles of human rights. No case has yet made a determination whether application of hadana violates “fundamental principles of human rights.” Nevertheless, the case of Tostado v. Tostado56 is illustrative of the application of this section of the UCCJEA. In Tostado the court was faced with a request to enforce a Mexican court order for custody. The court held that the foreign court’s judgment for custody is “presumed to be correct,” and the presumption “shifts to the party contesting the order, who has the burden of proving by a preponderance of the evidence that the foreign court judgment violates principles of human rights” (emphasis added). The court went on to state that with the amendment of the UCCJEA in 2001 in Washington State, the court could no longer consider the substantive laws of a foreign country when deciding whether to enforce a foreign custody decree or whether to assume jurisdiction to make its own initial determination. The court held that this re-codification of the UCCJEA in 2001 removed the “best interest of the child” language because it “tended to create confusion between the jurisdictional issue and the substantive custody determination.”57 RELIGIOUS COURTS AS ARBITRATORS IN DIVORCE/CUSTODY CASES In many of the states in the U.S., arbitrators can make binding decisions on issues relating to property division and spousal support. Arbitrators, however, are generally prohibited from making binding decisions on custody and child support58 issues, as these remain solely within the purview of the courts and their jurisdiction over these issues cannot be taken away from them. Arbitrators in most U.S. states do not have to be attorneys or retired judges — anyone, without any specific qualifications, can act as an arbitrator. Of course, religious courts have always been used by religious parties to arbitrate or rule upon religious divorce issues, to wit, determine whether and under what circumstances a wife may religiously divorce her husband, the proper procedure to be used by the husband to divorce his wife, etc. However, it has become customary in the U.S. and in a number of provinces in Canada59 to also use religious courts to resolve property disputes, spousal support (alimony) and (continued on Page 49) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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even custody issues, by empowering these religious courts to act as “binding arbitrators.” The use of Islamic religious court as the arbitrator in resolution of property, support and custody cases has become a virtual cottage industry. The difficulty with religious courts acting as arbitrators with binding authority is that, first, with rare exceptions, religious court arbitrators are not attorneys, they are often unfamiliar with the state’s or the province’s laws on divorce, property, support and custody issues; Shari’a courts tend to rule in accordance with Islamic law, which is likely to give deference to the nikah agreement and to Shari’a family law rather than to civil law; and with the exception of issues relating to custody and child support, binding arbitration by the Shari’a court (indeed from all arbitrations except on custody and child support issues) will mean there is no appeal nor a trial de novo from the Shari’a court’s decision. This will often mean that women are likely to lose much of their civil family law rights in an Islamic court, as Shari’a is disparate in its treatment of women relative to divorce issues. Islamic family courts are also likely to give great weight to a man’s testimony and much less so to the woman’s because Shari’a gives a woman’s testimony half the weight of a man’s (or two women’s testimony equals that of a man)60. Additionally, even in states in which no-fault divorce mandates equal division of marital property, the Islamic court will indeed give greater weight to “fault” in determining property and support rights for the woman; this, of course, inures to the detriment of the woman, as a man has unfettered power, under Islamic law, to divorce his wife even if she doesn’t merit it, while a woman must prove serious fault in the man to enable her to divorce him and still be entitled to retain her mahr. Finally, if the marriage is of long duration and the nikah agreement provides for a much lesser mahr than one half the marital property, the wife is likely to receive nothing but her mahr; even more importantly, she will not likely receive any support after her ‘idda of three months following the divorce. In sum, submitting to an Islamic court for a binding arbitration award of property division and spousal support (alimony) is, in most cases, very dangerous for the woman and is likely to subject her attorney to claims of malpractice. Interestingly, in the Canadian provinces of Ontario and Quebec, religious court arbitrations of family law matters have either been entirely forbidden or have been substantially curtailed so as to prohibit application of religious law to family law matters61. Precisely for the reasons set forth above, those Canadian provinces have concluded, after much research and public comment, that Islamic women have been PENNSYLVANIA FAMILY LAWYER MARCH 2010

increasingly pressured by imams and by their Islamic communities to submit to religious court arbitration of their family law issues. These women have been warned by their religious leaders that submission to the religion mandates that all conflicts, including divorce/property/support/custody issues, must remain within the purview of the Islamic court, not the civil court. Nevertheless, it should be remembered that under Islamic law, a woman is not deemed to be divorced until either her husband properly pronounces talaq three times in the manner specifically set forth in the particular tradition of the Islamic court or jurisdiction that the parties follow, or the Islamic court issues a religious divorce to the woman, whether by khula or by tafriq. Even if a civil divorce has been granted to the parties, unless there is a religious divorce accomplished as required under Shari’a, the parties are deemed not to be divorced in some Muslim jurisdictions62. In those jurisdictions requiring a Muslim divorce as well, if a woman remarries after having received only her civil divorce but she has not been religiously divorced, she may be deemed to an adulteress with grave consequences to her in her native Islamic country or perhaps another Islamic country she may visit. (As has been widely publicized, in some Islamic countries an “adulteress” is still subject to lashes, stoning, loss of custody of her children or other means of severe punishment. Adultery is not only considered an extremely serious crime under Shari’a but in many Islamic cultures, it is grounds for honor-killing of the adulteress to reclaim the family’s honor). This issue, therefore, should not be easily dismissed. Warning to practicing family law attorneys: Because Islamic family law varies in interpretation and application of Shari’a family law from one Islamic country to another (or even from one region in a country to another), in any case involving Islamic marriages, divorces, nikah agreements and/or custody issues, it is imperative that a legal expert from the particular country whence the parties hail, or to which either of them wish to return, be retained to explain to the civil Western courts precisely what family laws operate in that particular Islamic country, and how the rights of each party and the children are likely to be affected by those laws. 1

First Amendment to the U.S. Constitution, which provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”; Canadian Charter of Rights and Freedoms states that certain freedom are guaranteed and are subject “only to such reasonable limits that prescribed by law as can be demonstrably justified in a free and democratic society (among which freedoms are “freedom of conscience and religion,” but are subject to legislative (continued on Page 50)

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amendments of the provinces. FAZLUR RAHMAN, ISLAM 117 (Anchor Book, 1968). See, e.g., Javaid Rehman, The Sharia, Islamic Family Laws And International Human Rights Law: Examining The Theory And Practice Of Polygamy And Talaq, 21 INT’L J.L. POL’Y & FAM. 108, 110 (2007) (“Islamic family laws derive from two fundamental sources of the Sharia: the Quran and the Sunna ... According to the Islamic faith, every word of the Holy Quran is divine and cannot be challenged.”). E.g., id. at 109-112 (“[I]t is important to comprehend the metamorphosis, growth and contextualization of the Sharia. The labyrinth of religious, ethical and moral raw materials ... were given shape and direction by Islamic scholars and jurists ...”). E.g., id. at 118-19 (discussing divergence of Shari’a family law in, inter alia, Iran, Pakistan, and Egypt); see also Kristen Cherry, Marriage And Divorce Law In Pakistan And Iran: The Problem Of Recognition, 9 TULSA J. COMP. & INT’L L. 319, 320 (Fall 2001) (“Essential to understanding the marital laws of Pakistan and Iran is to understand that while both are Islamic law countries, they each adhere to different sects of Islam; thus, explaining some key differences in their laws.”) E.g., Rehman, supra, note 2, at 110. E.g., id. at 111. E.g., id. at 110 (“While meticulously noted down, and revealed in stages during the lifetime of the Prophet, the Quran was produced as an authentic text only during the currency of the third Caliph Hazrat Uthman [internal citations].”); id. at 111 (“The Sunna of Muhammad therefore is preserved and communicated to the succeeding generations through the means of hadiths. While the Quran was recorded within a relatively short time, the recording of the Sunna took a much longer period.”) (internal citations omitted). E.g., id. at 111-12 (“In understanding Islamic family laws it is important to comprehend the metamorphosis, growth and contextualization of the Sharia. The labyrinth of religious, ethical and moral raw materials derived from the two principal sources, Quran and Sunna, were given shape and direction by Islamic scholars and jurists during the second and third centuries of the Muslim calendar.”). E.g., id. at 112 (“The codification of the Sharia within Sunni Islam was principally the work of four jurists ...”); the main Sunni Schools are Hanafi, Maliki, (these two being the most widespread). Shafi’i schools and the

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Hanbali school which is limited to the Wahhabi interpretations in Arabia. Islamic Family law in a Changing World — A global Resource Book, Edited by Abdullahi A An-Na’im, Zed Books Ltd Publishers, at pg 5-6. Imami or Ithna’Ahsari school in Iran Iraq & Lebanon, and the Zaydi in Yemen — Marriage on Trial, Ziba MirHosseini, at pg. 6. See, e.g. Kristen Cherry, Marriage And Divorce Law In Pakistan And Iran: The Problem Of Recognition, 9 TULSA J. COMP. & INT’L L. 319, 320 (Fall 2001)note 5, at 320 (“Essential to understanding the marital laws of Pakistan and Iran is to understand that while both are Islamic law countries, they each adhere to different sects of Islam; thus, explaining some key differences in their laws.”). Even the cost of obtaining an Islamic divorce is disparate. For example, the Islamic Shari’a Council in London charges men £100 for a talaq dissolution, while it charges women £250 for a khula dissolution. (Of course, the ostensible large disparity may be explained by the differing procedures — men can automatically, without the wife’s consent, pronounce talaq, talaq, talaq, and they are divorced, while the wife’s seeking a khula dissolution involves several summonses, mediation requirements, etc. (See attached Exhibit “A” — Application forms for a talaq dissolution, and a khula dissolution). David Pearl, A Textbook On Muslim Personal Law, §3.1.1 (2d ed., Routledge 1987). Ziba Mir-Hosseini, The Construction Of Gender In Islamic Legal Thought And Strategies For Reform, Prepared for Sisters in Islam Regional Workshop, ‘Islamic Family Law and Justice for Muslim Women,’ Kuala Lumpur, Malaysia (June 8-10, 2001), at page 7. Ziba Mir-Hosseini, Marriage on Trial: Islamic Family Law in Iran and Morocco at 36 (I.B.Tauris, 2d ed. 2000). See, e.g., Marriage on Trial, supra, note 17, at 34-36. id. ‘idda is a waiting period of three menstrual cycles following a divorce, during which time wife is not permitted to remarry — that was to assure that if she is pregnant, parentage of the child is known to be that of the man from whom she was divorced, rather than that of her new husband. Marriage on Trial, id at 37. In some Islamic countries, such as Jordan, Malaysia, Syria and Iran, courts may order alimony for a year or two as compensation to the innocent wife; and Iranian courts may order compensation to the wife for household work she performed during marriage because under Shi’a, and even under some Sunni schools, a wife has no obligation to perform household tasks during marriage, (continued on Page 51) PENNSYLVANIA FAMILY LAWYER MARCH 2010

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and thus, having done so voluntarily, she may be compensated for same by the court. Marriage on Trial id. In reality, however, few Muslim women have the financial and emotional power to obtain such a concession in the nikah agreement, and many Muslim women are unaware that they have the right to demand such a provision in their nikah agreement. Wife’s right to work during the marriage is limited in most Islamic countries by Shari’a law that prevents her from doing so if husband prohibits her or limits the type of employment she may undertake, at the sole discretion of the husband. Marriage on Trial, id. at 164-165. Marriage On Trial, id. At 165. Certain exceptions may prevail but are of no significance in terms of this article, and will not be discussed. However, under the Shafi’I school, once the children reach puberty, the court may either ask the children to decide which parent should have physical custody, or the court may decide under a “best interest of the child” test. Egypt, for example, codified this Shafi’i opinion in its 2005 family statutes relating to child custody. Source: Hosain v. Malik, 108 Md. App. 284 (Md.Ct. Spec. App. 1996) Readers of this article outside the U.S. must remember that there is no such thing as federal marriage/divorce/ custody laws in the U.S. — each of the 50 states has its own marital laws and its own jurisprudence relating to family law issues. While there are certain laws that may have been commonly adopted by almost all of the states, such as the UCCJEA [Uniform Child Custody Jurisdiction & Enforcement Act] even the interpretation of such uniformly adopted laws may differ from state to state. The Uniform Premarital Agreement Act, for example, has been adopted by some states, but by no means universally. However, even those states that have adopted it, have amended or deleted certain of its provisions. Thus, in looking to the courts to determine validity and enforceability of nikah agreements, only analogies, not hard and fast rules, may be drawn from one state’s interpretation when using it for another state; thus the identical nikah agreement may be enforced in one state while it is given no civil validity in another. The same may be said for Canada. Each of the provinces has its own family laws, and interpretations of identical nikah agreements may vastly differ between them. Odatalla v. Odatalla 355 N.J. Super. 305 (New Jersey 2002).

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Akileh v. Elchahal 666 So.2d 246 (Florida 1996). Nathoo v. Nathoo 1996 A.C.W.S.J. Lexis 97207; 1997 A.C.W.S.J.41320; 68 A.C.W.S.(3d) 487 (British Columbia 1996). Id. Khan v. Khan (Ontario 2005) 2005 A.C.W.S.J. Lexis 3266. Caution must be advised in interpreting these cases as they are not only fact specific, but also province or state specific. Certain Canadian provinces, and certain states in the U.S., for example, tend to exhibit a more jaundiced view toward toward religious contracts that deprive one party or the other of rights deemed by civil law to be important protections. For example, waiver of spousal support/alimony is an important issue in numerous provinces or states because waiver of a spouse’s obligations of supporting the other spouse in the event of divorce will mean a drain on the public coffers. Because a nikah agreement presupposes imposition of Shari’a family law wherein the wife is not entitled to support beyond the time of her idda period (two months) following the divorce, this may run afoul of support rights under civil law. Additionally, certain states allow waivers of support in premarital agreements, while other states prohibit them. Thus, interpretation of a nikah agreement as a waiver of support as well as the sole entitlement to property division will also have an impact on whether the particular state in the U.S. or in the Canadian province will enforce same. As an example, in Avitzur v. Avitzur, 446 N.E.2d 136 (1983), N.Y. enforced the ketubah (a Jewish marriage agreement) in mandating that the husband give the wife a get (a Jewish divorce), Habibi-Fahnrich v. Fahnrich (N.Y. 1995 No. 46186/93 1995 WL 507388 (N.Y.Supp., 1995) (New York). In re Marriage of Dajani, 251 Cal.Rptr. 871 (1988) (California). Query whether the Dajani case would meet a different result today, as the California prenuptial agreement law has since been changed. Shaban v. Shaban 88 Cal. App. 4th 398 (2001) (California). See for example, California Family Code §1600-1620 Even states such as Texas, that recognize “common law marriage” [wherein parties living together for a minimum of a prescribed time period and are deemed to have been married even without undergoing a marriage ceremony] have prescribed requirements for meeting the standards of “marital status”. See Tex. Fam. Code Ann. §2.401. Farah v. Farah 16 Va. App. 329 (Virginia App. 1993). Moustafa v. Moustafa 888 A.2d 1230 (Maryland, 2005). Aleem v. Aleem 404 Md. 404, 947 A.2d 489 (Maryland (continued on Page 52)

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2008). Ali v. Ali 279 N.J. Super.154 (New Jersey 1994). Hosain v. Malik 108 Md. App. 284 (Maryland 1996). See supra for definition of hadana. Hosain v. Malik supra, at 288. Hosain v. Malik, supra, at 318-319. Amin v. Bakhaty 798 So. 2d 75 (Supreme Court of Louisiana, 2001). Uniform Child Custody Jurisdiction Act. Uniform Child Custody Jurisdiction and Enforcement Act. Missouri, Massachusetts, New Hampshire and Vermont are the only states in the U.S., and Puerto Rico, a U.S. territory, that have not adopted the new act. This is the California statutory adoption of the UCCJEA — see California Family Code Section 3405. Most other states which have adopted the UCCJEA have very similar or identical language. Only the New Jersey version of the UCCJEA has a specific exception providing that a foreign country’s laws or judgments regarding custody will not be enforced if does not base custody decisions on evaluation of the best interests of the child. N.J.S.A. 2A:34-57.

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Tostado v. Tostado 137 Wash. App. 136 (2007 Washington). Uniform Child Custody Jurisdiction and Enforcement Act, §201 cmt., 9 U.L.A. 672 (1999). In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020; Armstrong v. Armstrong (1976) 15 Cal.3d 942; In re Marriage of Bereznak & Heminger (2003) 110 Cal.App.4th 1062. See exceptions detailed in the discussion in succeeding paragraphs. Islamic Shari’a Council, London, England: Surah AlBaqara 2:282. Ontario Statute: Family Law Statute Amendment Act 2006 S.O. 2006 (Ontario forbids all arbitrations by religious courts); Quebec Statute: Article 394 of Code of Civil Procedure (Arbitration by Advocates) No arbitrations permitted in family law cases. The Islamic Shari’a Council in London notes that a civil divorce may be sufficient to deem the parties divorced under Islamic law; and in contrast, the Islamic Shari’a Council advises parties on their application for religious divorce that their religious divorce does not absolve them of their obligation to obtain a civil divorce. In contrast, the published Fatwas from Leader’s Office in Qom (Iran), maintain that secular divorce “does not obviate the need for an Islamic divorce.”

CHILDREN’S PLAYROOMS IN THE COURTS: NEW DVD AVAILABLE National Council Of Jewish Women, Pittsburgh Section, (NCJW) has operated child care centers in the Allegheny County Courts for nearly 30 years. These rooms, well known to and supported by the Family Law Division of the Allegheny Bar Association, provide a stress-free and safe environment for children whose families are involved in court proceedings. Most recently, the program has expanded to provide for jurors’ children with advance registration. Now a DVD is available that depicts all three of these bright, cheerful children’s playrooms — Family, Municipal and Criminal Courts. Produced through the auspices of the Allegheny County Bar Association’s videography department, the purpose of this DVD is threefold: First, it will be played in the courts and on various organizational Web sites so that caregivers will feel comfortable in leaving their charges in the care of the volunteers and staff.

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Second, it will be utilized to inform lawyers and lay people that this service exists. Lastly, the DVD will be used to recruit volunteers. NCJW urges members of the Family Law Division to assist in distribution of this information by showing the DVD to constituents, clients, organizations and associations, or anyone who might benefit from the services provided in the rooms. The DVD is available by calling National Council of Jewish Women, Pittsburgh Section, 1620 Murray Avenue, Pittsburgh, PA 15217, (412) 421-6118, or e-mailing adminasst @ncjwpgh.org. To defray the cost of production and distribution a donation is requested of at least five dollars ($5.00). Anyone who orders a copy of the DVD is welcome to retain it and distribute it to any interested parties.

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Technology Corner: Joel B. Bernbaum, Esq. [email protected] Alicia A. Slade [email protected] BITS AND BYTES 2000 BY JOEL B. BERNBAUM The end of the year 2000 is fast approaching and I am determined to avoid a column on Y2K or the millennium. Too much has been written on these topics. But I can’t deny the urge to look to the past and future use of technology in the law. The year is 1985; the Chicago Bears are the most feared team in the NFL and go on to win the Super Bowl. My secretary is transcribing my tape on her IBM Selectronic II — the new electric typewriter with built-in correction tape, interchangeable metal balls (each with different type face), automatic return and other features — which replaces the old manual typewriter. Why there is not even a carriage return. What will they think of next? I go down the hall to word processing where one of the secretaries transcribes my property settlement agreement. The 35-page document will take several hours to prepare on the huge machines. The documents are stored on large disks, no permanent memory in these word processors. While I wait for the draft to proofread, I go to the library to research my brief that is due in a week. The new Lexis service has just been installed and since I completed my two hours of training, another partner expects me to teach him how to use it. This technology did not exist when we graduated law school in the early ‘70s. The one terminal is being used so I turn to the microfilm archive of law review articles to start. Joel B. Bernbaum is Counsel to the Norristown law firm of Kane, Pugh, Knoell & Driscoll, Technology Corner CoEditor of the Pennsylvania Family Lawyer and a member of Council of the PBA Family Law Section. Alicia A. Slade is a Technology Consultant and the President of Plummer Slade, Inc., a computer networking firm that has been specializing in providing computer networking and business solutions to law offices since 1988 and Technology Corner Co-Editor of the Pennsylvania Family Lawyer. PENNSYLVANIA FAMILY LAWYER MARCH 2010

When I get back to my office, I proof my correspondence, make corrections by hand and give them back to my secretary who will try to “white out” some mistakes, but will have to retype most of them before mailing. I tell my secretary to have one of the letters hand-delivered by our messenger. The office manager has delivered the monthly billing printout. Our firm has 65 lawyers and we have five secretaries in the billing department to input the billing data on the large mainframe computers. I make the corrections and return the three-inch thick stack of paper (continuous perforated sheets) to billing. I’ll get the corrected bills in a couple of days. On my way back to my office, I pick up the stack of pick message slips and begin to return phone calls. The personal computer did not exist 20 years ago. Today, new technology has improved our productivity. Now, lawyers and secretaries all have computers that are more powerful than a room full of mainframes and they are networked and share resources. I can dictate to my digital transcription system and make corrections directly on my computer before any documents are printed. A finished document looks as if came from a printing press (remember those little dots?). The turnaround time is minutes not hours. Each attorney in our firm has direct access to the Internet for research. E-mail has replaced pink message slips. Faxes can be sent from computers or through stand-alone machines. Documents can be sent instantly by e-mail or fax. The era of a paperless office is on the horizon. Cell phones, digital cameras, palm size computers and scanners are wonders that did not exist 10 years ago. Today they are becoming inexpensive necessities. Time and billing software, combined with the power of today’s computers generate bills in hours not days. Look around your office and you will find some form of technology that didn’t exist 10 years ago and you wonder how you got along without it. (continued on Page 54)

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Ten years from now, technology will continue to change the practice of law. Wireless networking will do away with the tangle of wires around every desk. Your computer will be the center of your universe. The telephone and dictation machine will be built into the small palm-sized computer that you plug into your network each morning and take home with you at night. Flat, 21-inch monitors will take up very little room on your desk and video conferencing from tiny

Legislative Update: This article updates the legislative history of the bills summarized in the March, May, October and December 2009 Legislative Updates. In addition, this article summarizes several other domestic relations bills introduced in the 2009-10 legislative session of the Pennsylvania General Assembly since the previous Legislative Update. Status of each bill is provided as of Feb. 12, 2010. The full text of the bills, as well as their legislative history, may be found by following the link “Session Info” at www.legis.state.pa.us.

attached cameras will be the norm. Digital storage devices will replace paper. High-speed printers will generate documents as necessary. Your digital files will be read online rather than stored in file cabinets. Most face-to-face business will be replaced by online conferences conducted over the Internet. Pleadings will be digitally filed and accessed from your office. Documentary evidence will be in digital form and our future courtrooms will use computers for exhibits, dockets and witness testimony. Distance will no longer be a barrier to legal representation. Twenty-five years from now, trials will be conducted online not in person. Change is inevitable; technology is only limited by our imaginations.

Steve Rehrer, Esq. [email protected]

As previously noted in the October 2009 Legislative Update, House Bill 270 (marriage), which became Act 18 of 2009, was approved by the governor on July 14, 2009, and took effect immediately.

tody), 541 (Domestic Relations Court Judges Commission), 564 (custody), 690 (support), 768 (adoption), 887 (custody; paternity), 909 (adoption), 967 (adoption), 1140 (paternity), 1347 (custody), 1372 (liability for the tortious acts of children), 1525 (adoption), 1586 (funds for the Children’s Trust Fund), 1588 (funds for victims of domestic violence), 1639 (custody), 1719 (adoption), 1814 (forfeiture under intestate succession), 1861 (funds for victims of domestic violence), 1968 (adoption), 1978 (adoption), 2046 (family law adjudication system) and 2082 (adoption). Senate Bills 49 (alimony), 230 (paternity), 397 (support), 410 (sibling visitation), 434 (liability for the tortious acts of children), 571 (support), 625 (adoption), 854 (custody), 919 (funds for the Children’s Trust Fund), 920 (funds for victims of domestic violence), 935 (marriage) and 943 (alimony).

Updates

ADOPTION

The following bills, summarized in the March, May, October and December 2009 Legislative Updates, have not advanced further in the legislative process: House Bills 90 (child abduction prevention), 120 (death during a divorce proceeding), 295 (sibling visitation), 305 (support), 433 (adoption), 434 (adoption), 435 (adoption), 437 (adoption), 438 (adoption), 463 (custody), 537 (cus-

House Bill 1907 (Printer’s No. 2860; Prior Printer’s No. 2552) was approved by the House on Nov. 17, 2009 by a vote of 189-0 and referred to the Senate Judiciary Committee on Nov. 25, 2009. The bill adds a new section 2911 to the Adoption Act, specifying that an adoption agency intending to cease its operations shall notify the Department of Public Welfare at least 30 days prior to its closure date, or sooner if possible, and submit a plan to the department, subject to the department’s approval, for the closure and transfer of case records to another agency. The agency shall label its case

Enactments

Stephen F. Rehrer is Counsel with the Joint State Government Commission in Harrisburg and the Legislative Editor of the Pennsylvania Family Lawyer.

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LEGISLATIVE UPDATE (continued from Page 54)

records to identify each court (1) that finalized an adoption, (2) where a petition to terminate parental rights was filed or (3) where a petition to adopt was filed. Within 30 days following approval of the plan, the department shall then notify each court regarding the agency that ceased operations and the new agency to which the case records have been transferred.

DEATH DURING A DIVORCE PROCEEDING Senate Bill 53 (Printer’s No. 1663; Prior Printer’s Nos. 38, 190 and 195), which was reported as amended from the Senate Judiciary Committee and received first consideration on Feb. 10, 2009, was re-referred to the Senate Appropriations Committee. On Feb. 1, 2010, the bill was rereported as amended. Among other things, Senate Bill 53 amends sections 2106, 2507, 6111.1 and 6111.2 of the Probate, Estates and Fiduciaries Code to account for a situation where a party dies during the course of divorce proceedings, no decree of divorce has been entered, and grounds have been established as provided in section 3323(g) of the Domestic Relations Code. The bill conforms these four sections with Act 175 of 2004, which added 23 Pa.C.S. section 3323(d.1) and 20 Pa.C.S. section 2203(c). Senate Bill 53 is based on the recommendations of the Joint State Government Commission’s Advisory Committee on Decedents’ Estates Laws.

LIABILITY FOR THE TORTIOUS ACTS OF CHILDREN House Bill 1797 (Printer’s No. 2928; Prior Printer’s No. 2333) was reported as amended from the House Judiciary Committee and received first consideration on Nov. 17, 2009. The bill as amended adds a new section 5503(c) to the Domestic Relations Code and specifies that any order for restitution entered against a parent for the tortious act of a child shall terminate when the child reaches the age of 21.

Newly Introduced Legislation CUSTODY

during military deployment. Under the bill, if an eligible servicemember has received notice of deployment in support of a contingency operation, the servicemember may petition the court for a modification of a custody or visitation order. The modification may include a temporary assignment of the servicemember’s custody or visitation rights to one or more legal or biological relatives. The petition must include a proposed custody or visitation schedule with the relatives, and the schedule may not exceed the time granted to the servicemember prior to the time of filing the petition. The court may grant the request if it finds that custody or visitation, on terms deemed appropriate by the court, would be in the best interest of the child. The order granting the assignment of custody or visitation rights would terminate immediately upon the termination of the servicemember’s deployment.

MARRIAGE Senate Bill 1208 (Printer’s No. 1646), in the Senate Judiciary Committee, amends section 1503 of the Domestic Relations Code by repealing the last half of subsection (b): “Every religious society, religious institution or religious organization in this Commonwealth may join persons together in marriage [when at least one of the persons is a member of the society, institution or organization, according to the rules and customs of the society, institution or organization].”

SUPPORT OF THE INDIGENT House Bill 2206 (Printer’s No. 3092), in the House Insurance Committee, repeals section 4603 of the Domestic Relations Code (relatives’ liability; procedure), which was enacted as part of Act 43 of 2005. Under section 4603, a spouse, child or parent of an indigent person generally has the responsibility to care for and maintain or financially assist the indigent person. This obligation does not apply if (1) the spouse, child or parent does not have sufficient financial ability to support the indigent person or (2) the indigent parent abandoned the child and “persisted in the abandonment for a period of 10 years during the child’s minority.” Senate Bill 1195 (Printer’s No. 1642), in the Senate Judiciary Committee, amends section 4603(a) of the Domestic Relations Code to add that a child is not liable for the support of a parent if the child has taken no overt action to either voluntarily accept responsibility or reasonably lead a provider to believe that he or she has voluntarily accepted responsibility for the costs of care of the parent.

Senate Bill 1221 (Printer’s No. 1684), in the Senate Judiciary Committee, adds a new section 4110 to Title 51 of the Pennsylvania Consolidated Statutes (Military Affairs) regarding the assignment of child custody or visitation rights

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Section News:

Jay A. Blechman, Esq. [email protected]

William L. Steiner, Esq. [email protected] The Winter Meeting of the PBA Family Law Section took place Friday, Jan. 15, through Sunday, Jan. 17, 2010, at the Hotel Hershey.

On Friday, the Section’s Governing Council met at 3:30 p.m. After the Council Meeting, there was a welcome cocktail party for the meeting attendees and guests. For those who decided to continue the socialization until later into the evening, a hospitality suite was available. On Saturday, a plenary session titled “Advanced Legal Writing & Editing: Beyond Logic to Coherence and Strength” was presented by Professor Timothy Terrell. During the break, the Eric Turner Award was presented by Mark Dischell to Leonard Dubin, who addressed the attendees. After the break, another plenary session, “Protecting Expert and Attorney Communications,” took place, moderated by Joanne Ross Wilder and featuring Judge Jeannine Turgeon; Ann M. Funge; David Kaplan, CPA, JD; and Arnold Shienvold, PhD.

After lunch, two workshops were offered. One, titled “The Ultimate Support Notebook,” was moderated by Gerald L. Shoemaker Jr. and featured Judge David N. Wecht, Mark R. Ashton and Margaret Joy. Another workshop, “Death During Divorce: Issues You Haven’t Thought Of,” was moderated by Julie E. Ganz and featured Judge Katherine B.L. Platt, Michael E. Fingerman, David S. Pollock and Cheryl L. Young. Later in the afternoon, two more workshops were presented. “Contract Issues with Drafting and Enforcing Agreements” was moderated by Natalie L. Famous and featured Amy P. DeShong, Mary Cushing Doherty and J. Paul Helvy. Contemporaneously, “Dissecting a Custody Case from the Psychologists Perspective” was moderated by David N. Hofstein and featured Steve Cohen, Ph.D, David Laporte, Marolyn Morford and Eve Orlow. After the workshops, another reception took place and for those who decided to continue the socialization until later into the evening, a hospitality suite was again available. On Sunday, a Section Business Meeting was conducted during breakfast by Section Chair Jeffrey M. Williams. Following breakfast, Case Law and Rule Updates were presented. They were moderated by Christina A. DeMatteo and presented by Heather A. Trostle, Robert J. Brasko, Jessica A. Pritchard, Catherine M. McFadden and Gail C. Calderwood. Reservations for the 2010 Summer Meeting, which will be held July 8-11, should be made directly with the Hyatt Regency Coconut Point Resort and Spa by calling Central Reservations at 1-888-421-1442 and referring to Pennsylvania Bar Association Family Law Section Group Code GPBA. Reserve rooms as soon as possible. The hotel is located at 5001 Coconut Road, Bonita Springs, Fla., 34134.

Jay A. Blechman is a Partner with the Pittsburgh law firm of Steiner & Blechman, Section News Co-editor of the Pennsylvania Family Lawyer, Past Chair of the PBA Family Law Section and Past President and Treasurer of the Allegheny County Bar Association. William L. Steiner is a Partner with the Pittsburgh law firm of Steiner & Blechman, Section News Co-editor of the Pennsylvania Family Lawyer, a past member of Council of the PBA Family Law Section and past Chair of the Allegheny County Bar Association Family Law Section.

Hyatt Regency Coconut Point Resort and Spa

The Hotel Hershey

PENNSYLVANIA FAMILY LAWYER MARCH 2010

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2010 FAMILY LAW SECTION ANNUAL WINTER MEETING SPONSORS

Williams & Hand, P.C. 43 N. Pine Street Doylestown, PA 18901

Mr. Dennis Bieler Pritchard Bieler Gruver & Wilson 590 Bethlehem Pike PO Box 485 Colmar, PA 18915

Mr. Anthony DeLorenzo Allstate Investigations Inc PO Box 7589 Freehold, NJ 07728

Mr. Stuart Drobny Stumar Investigations PO Box 1180 Norristown, PA 19404

Wine Tasting Co-Sponsors - $1,500

$500 Bronze Sponsors $1,000 Silver Sponsors Mr. David N. Kaplan Alpern Rosenthal & Company Heinz 57 Center 339 6th Ave Ste 800 Pittsburgh, PA 15222-2518 Mr. Tim Adams President Bucks County Collaborative Law Group 668 Stony Hill Rd PO Box 47 Yardley, PA 19068 Mr. Daniel B. Caine President Family Law Software 831 Beacon St Ste 2900 Newton Centre, MA 02459 Mr. Mark Caltagirone ParenteBeard LLC 2609 Keifer Blvd Reading, PA 19602

PENNSYLVANIA FAMILY LAWYER MARCH 2010

Mr. Bruce Brown Brown Schultz Sheridan & Fritz 210 Grandview Ave Camp Hill, PA 17011 Mr. Creig K. Jackson Easy Soft LLC 212 N Center Dr North Brunswick, NJ 08902 Mr. & Mrs. Mark K. Altschuler Pension Analysis Consultants 8215 Forest Avenue PO Box 7107 Elkins Park, PA 19027-0127 Mr. Bryan Altman, COO The OurFamilyWizard Website 1301 2nd St NE Ste 200 Minneapolis, MN 55413 Mr. Joseph Egler CFA Value Management Incorporated 758 Durham Rd Newtown, PA 18940-9676

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PBA Family Law Section 2010 Winter Meeting Photos Photography by David Pollock

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PENNSYLVANIA FAMILY LAWYER MARCH 2010

ERIC DAVID TURNER AWARD SPEECH FOR LEONARD DUBIN BY MARK B. DISCHELL It’s my honor to present the Eric Turner Award for 2010. Eric was an excellent lawyer, good person and friend to many of us. It’s hard to believe it’s 10 years since he died. I miss his knowledge and great sense of humor. Nothing was sacred to Eric except his dedication to family, clients and the profession. Therefore, the award is given to an attorney or judge for mentoring, teaching and, in general, excellence in the field of family law. The recipient of the award designates a $500 donation to the organization or charity of his or her choice. Past honorees are Robert Raphael, William Goldman, Judge Lawrence Kaplan, Albert Momjian, the late Bonnie Menaker, Chris Gillotti, Justice Sandra Newman, the late Fred Cohen, and last year’s choice, Jack Rounick. This year’s recipient (the 10th) is Leonard Dubin. I was nervous in presenting the award to Len, because over the years he has been correcting my grammar, crossexamination, views on family law issues, and even my choice of shirt and tie. Maybe he has a right to based upon the following qualifications: • First in his class at Temple Law School, as well as being editor of The Law Review. • Law clerk to Judge Sloan • 27th attorney at his law firm, Blank Rome. There are presently over 500 lawyers in that organization. Len not only headed the family law department, but chaired the litigation department, as well. • President of the Pennsylvania Chapter of the American Academy of Matrimonial Lawyers. • Chair of the Pennsylvania Bar Association Family Law Section and president of the PBA. No one else has chaired the Section and been president of the Bar Association. • Member of the Supreme Court Domestic Relations Procedural Rules Committee, Joint State Government Advisory Committee, American College of Trial Lawyers, and CLE Board of the PBA.

Anyone who knows Len is aware of his greatest accomplishment — meeting, marrying and keeping his illustrious wife, Marlene. Len and Marlene have been a fixture at Section meetings for over 30 years. Marlene is the one who is extremely gracious, speaks with you as if you are the only person in the room, and remembers you and your children for time immemorial. When I confirmed Len’s great accomplishments, he corrected me only slightly by including his three children: Michael (a lawyer), Lisa (a civilian) and David (a lawyer and member of our Section). Len has mentored many lawyers by means of his firm, friendship and teaching. Those of us who were practicing in 1980 remember him and many of the other award recipients teaching us the “new law” in these same hallowed halls of Hershey. Who then knew about equitable distribution, alimony, pensions or any of the other topics we routinely deal with now? For the past 30 years, Len has been teaching us very many family law topics and has been in the forefront of new developments. Even before Len allegedly retired, he was a formidable adversary and hardly “a day at the beach.” He knew the law and more often than not, politely and sometimes quite vigorously questioned your theory and reasoning. He was a hard sell, but would respect legal logic and practicality. His practice was one of courtesy and probity. If litigation was necessary, Len was relentless and committed to the task. He was also a devastating cross-examiner. Even now, when asked about the decision of Simeone, he still gets rankled and condemns the Supreme Court for its decision. Len’s charity is Philadelphia Futures. This is quite appropriate as that organization mentors the education of underprivileged children. Let’s hope he doesn’t correct me, but Len Dubin is indeed a worthy recipient of the Eric Turner Award.

Mark B. Dischell is a Shareholder in the Lansdale firm of Dischell, Bartle, Yanoff & Dooley, P.C., past Chair of the PBA Family Law Section, past Member of PBA House of Delegates, member Montgomery County Bar Association, Family Law Section, Fellow American Academy of Matrimonial Lawyers, Fellow and past President of its Pa. Chapter, member Joint State Government Commission Advisory Committee, member Supreme Court of Pennsylvania, Domestic Relations Procedural Rules Committee. PENNSYLVANIA FAMILY LAWYER MARCH 2010

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Sidebar:

Gerald L. Shoemaker, Esq. [email protected]

Mark J. Goldberg has retired from the Pittsburgh firm of Goldberg, Gruener, Gentile, Horoho & Avalli P.C. and has now established a divorce mediation and arbitration firm (412-999-4201; [email protected]). Mark’s venerable firm continues with the new name of Gentile Horoho & Avalli P.C.

Emma Bennington Korinski has blessed her parents, Elizabeth (“Lisa”) Bennington (Partner in Pollock Begg Komar Glasser LLC in Pittsburgh) and Brad Korinski (Law Clerk to Allegheny County Civil Division Judge Chris Ward). Emma, who was born on Jan. 12, and her parents are doing well.

Also, Mark Momjian and Stephen Anderer have formed the Philadelphia firm of Momjian Anderer L.L.C., www.momjiananderer.com. Lauren Sorrentino will be joining Stephen and Mark at the new place! Congrats to everyone!

Welcome to the newly elected judges of Montgomery County who will serve in Family Court: Carolyn Tornetta Carluccio, Patricia Coonahan and Kelly C. Wall. Welcome to the newly elected judges of Westmoreland County who serve in the Family Court: Chris Scherer (formerly the Sheriff) and and Michele Bononi (formerly Support Hearing Officer). Hope Aston has become the Westmoreland County Support Hearing Officer. And, welcome to the newly elected judges of Allegheny County who will serve in the Family Division: Susan Evashavik DiLucente, Phil Ignelzi, Arnie Klein and Don Walko.

Stewart Barmen has returned from retirement and has joined Pittsburgh’s Frank, Bails, Murcko, Gubinsky & Gale P.C. as Of Counsel. He was formerly a Shareholder and Chair of the Family Law Department at Buchanan Ingersoll P.C. prior to his retirement. Heidi Sherman is now with the Pittsburgh firm of Steiner and Blechman, whose principals are both Co-Editors of the Pa Family Lawyer Section News. Melissa LaFata Pagliari recently joined The Family Law Group L.L.C. in Erie. Mazel Tov to Charlie Meyer of Blue Bell’s Elliott Greenleaf. Charlie recently celebrated his son Brian’s Bar Mitzvah. His step-daughter Mel Vizak’s Bat Mitzvah is scheduled in April. Brian Salsbury has joined Family Matters in Uniontown. He joins Sheryl Heid who is pleased to welcome him. Congratulations to Mary Cushing Doherty of Norristown’s High Swartz on being named a 2009 Woman of Distinction by the Philadelphia Business Journal.

Phyllis Bookspan has joined Wayne’s Bennett & Associates as Of Counsel to the firm. Congratulations to James H. Richardson Jr. of Erie’s Elderkin, Martin, Kelly & Messina on being installed as a Potentate for the Zem Zem Shriners. Our condolences go to Superior Court Judge Jacqueline Shogan on the recent passing of her husband, Dr. Jeffrey Shogan. Pitttsburgh’s Jeffrey Gabriel recently passed away after an extended illness and a valiant fight. He will be missed by so many of his friends in Pittsburgh and his many lifelong and more recent friends on the “South Side.” Our condolences go to his family. Carol and Barry McCarthy’s son Jack McCarthy died suddenly. This incomprehensible loss is mourned all throughout the state. Our hearts are extended to Carol and Barry, who are heartbroken.

Gerald Shoemaker is Sidebar Editor of the Pennsylvania Family Lawyer, and an Associate in the Norristown office of Hangley Aronchick Segal & Pudlin, a past member of the Councils of the PBA and ACBA Family Law Sections and active in the Montgomery County Bar Association Family Law Section.

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PENNSYLVANIA FAMILY LAWYER MARCH 2010

Hey, gang! You have kids, christenings, bar/bat mitzvahs ... and your significant others ... and your law practices. Let me know what is going on!!! The “Sidebar” may be at the end of the Pennsylvania Family Lawyer, but many read it first. So let me know what is going on by mail, fax or e-mail: Gerald L. Shoemaker, Esq., 2 West Lafayette Street, Suite 275, Norristown, PA 19401. Telephone: (610) 313-1674/Fax:(610) 313-1689/E-mail: [email protected]

PBA FAMILY LAW SECTION MEMBERSHIP INCENTIVE PROGRAM BY DANIEL J. CLIFFORD, ESQ. In July 2008, then-Section Chair Carol Behers appointed a Subcommittee consisting of Section Secretary Christine Gale, Treasurer Dan Clifford and Council Member Sandra Davis to review the possibility of creating a scholarship program to assist qualified Section Members by defraying some of the costs of attending Section Conferences. At the January 2009 Council Meeting in Pittsburgh, Council voted in favor of establishing a Membership Incentive Program that designates the sum of $2,000 annualDaniel J. Clifford is a partner in the Philadelphia law firm of Weber Gallagher Simpson Stapleton Fires & Newby and managing partner of the firm’s Norristown office; Secretary of PBA Family Law Section; Zone 9 Delegate to PBA House of Delegates; Past Chair of Montgomery Bar Association Family Law Section; past Board of Directors of Montgomery Bar Association; Co-Chair of its Diversity Committee; member of Montgomery County Board of Commissioners’ Advisory Committee to the Montgomery County Office of Children & Youth; Chairman, Zoning Hearing Board, Springfield Township, Montgomery County; and member, Board of Directors, Adoptions From The Heart. PENNSYLVANIA FAMILY LAWYER MARCH 2010

ly for scholarships. The scholarships will cover the payment of registration fees for attendance at one of the annual Conferences. Eligible recipients are Section Members who are: (a) young/new to the practice; (b) from solo practice or small firm; and/or (c) from counties that have been under-represented at Section Conferences. The Resolution passed Council unanimously and the first set of scholarships were available for the Winter 2010 meeting in Hershey. Interested applicants should forward their CV and a brief statement as to why they believe they are eligible for the scholarship to the attention of Michael Shatto, PBA, P. O. Box 186, Harrisburg, PA 17108-0186. For the July Annual Summer Meeting in Bonita Springs, Fla., the Membership Incentive Program will be administered by Chair-Elect Cheryl Young and First Vice Chair Joseph Martone who will make a recommendation to Chair Jeff Williams for Executive Committee approval. Applications should be submitted no later than June 15, 2010.

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“Legal Eagle” Column Compilation Now Available A long time ago in a galaxy far, far away, there was born one of the clearest legal minds to grace the world of matrimonial law in Pennsylvania. Patricia G. Miller was not always a lawyer. She actually graduated from the University of Colorado with a degree in chemistry and was a medical technologist. She was a longtime abortion rights activist in Colorado and Pennsylvania, where she was on the forefront of the passage of America’s first liberal abortion law in 1967. While raising three children she graduated from the University of Pittsburgh School of Law, remade herself as a civil rights lawyer, then a partner with the prominent matrimonial firm of Wilder & Miller until she established the matrimonial law group at Reed Smith L.L.P. She left the world of advocacy to become the first Equitable Distribution Master in the Court of Common Pleas of the Allegheny County Family Division having been appointed by Justice Max Baer (then Administrative Judge). She has served as the Equitable Distribution Master and a Complex Support Hearing Officer for nearly 15 years, winning accolades from the Pennsylvania Supreme and Superior Courts, the Allegheny County Common Pleas Court Judges and the Bar. More significantly, she was a co-author of the first edition of Pennsylvania’s Family Law: Practice and Procedure

Handbook, the author of The Worst of Times, published in 1993 by Harper Collins, an oral history of the impact of illegal abortions (which she wrote while taking a sabbatical at Reed Smith), a monthly column for the Pittsburgh PostGazette titled “Legal Eagle,” numerous Pennsylvania Bar Association, Pennsylvania Bar Institute and Pennsylvania Family Lawyer articles and comments and a decade and a half of equitable distribution and support decisions. Master Miller is not afraid to speak her mind in Court and outside of Court. She has strong convictions and wise thoughts, many of which were incorporated into her monthly “Legal Eagle” column. Joel H. Fishman, Ph.D., Allegheny County Law Librarian and Professor at Duquesne University School of Law was inspired one night to preserve this wonderful collection. He wanted distribution because these articles are not only important to us as lawyers, but to our clients and the general public. This book is great reading and something that all of us will be giving to our clients to consider. There are words of wisdom for each one of them — and us, too. Enjoy the reading, as I did each month. — David S. Pollock

PATRICIA G. MILLER’S ARTICLES FROM THE “LEGAL EAGLE” COLUMN FROM THE PITTSBURGH POST-GAZETTE (1993-2001) Compiled and edited by Joel Fishman, Ph.D., with a Forward by David S. Pollock, Esq., Pollock Begg Komar Glasser LLC, Pittsburgh, PLRI, 2008. xvii, 176p. ISBN: 978-1881751-17-7 $25 per paperback volume; $35 per bound volume (cash or check only) Name ________________________ Firm __________________________________________ Address ______________________________________________________________________ City ________________________________ State ____________ ZIP code ______________ Phone Number ________________________________________________________________ ■ Paperback ■ Hardcover No. of Copies ______________________________________

For more information, e-mail [email protected]

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PENNSYLVANIA FAMILY LAWYER MARCH 2010

These BENEFITS are INCLUDED in your PBA Family Law Section membership: • FREE Pennsylvania Family Lawyer newsletter — Still mailed in hard copy to all Section members AND available online anytime for reference

• FREE online FAMILY LAW SECTION Member Directory — see screen shot below Search fellow Section members by name, county or zip code Visit the PBA Web site at www.pabar.org and log in as a member in the upper-right corner. Then click on “Sections” along the left side and navigate to the Family Law Section, then click on “Membership.”

You must log-in as a PBA member in order to access these benefits exclusive to Section members.

PENNSYLVANIA FAMILY LAWYER MARCH 2010

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PENNSYLVANIA BAR ASSOCIATION Pennsylvania Family Lawyer P.O. Box 186 HARRISBURG, PA. 17108-0186

NON-PROFIT ORG. U.S. POSTAGE PAID HARRISBURG, PA PERMIT NO. 472

Mark Your Calendar! UPCOMING PBA FAMILY LAW SECTION MEETINGS 2010 SUMMER MEETING ● JULY 8-11, 2010 Hyatt Regency Coconut Point, Bonita Springs, Florida

2011 WINTER MEETING ● JAN. 13 – 15, 2011 Marriott Lancaster at Penn Square, Lancaster

2011 SUMMER MEETING ● JULY 7-10, 2011 The Sagamore, Bolton Landing, New York