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Divorce Law in the Fifty States – Pennsylvania – 8/1/2006 – 7/31/2007

Adoption

Miscellaneous

Allegheny County Office of Children Youth and Families v. Department of Public Welfare, 912 A.2d 342 (Pa. Cmwlth. 2006) – The Court held that extenuating circumstances justified retroactive financial assistance pursuant to the Federal Adoption Assistance and Child Welfare Act where adoptive parents were adopting an eligible special needs child. Adoption assistance traditionally needs to be applied for before adoption, but adoptive parents were not notified of financial assistance.

Greene County Children and Youth Services v. Department of Public Welfare, 913 A.2d 974 (Pa. Cmwlth. 2006) – Adoptive parents not eligible for financial assistance pursuant to the Federal Adoption Assistance and Child Welfare Act where they failed to demonstrate that daughter was a special needs child at time of adoption.

In re N.C., 909 A.2d 818 (Pa. Super. 2006) – Trial court’s determination that goal change from reunification to adoption was affirmed even though mother had substantially completed her permanency plan. The goal change was supported by the children’s need for permanency, stability, and a loving home, which mother was not able to provide.

Agreements

Post-Marital

Maj v. Maj, 81 Pa. D. & C. 4th 383 (Pa. Com. Pl. 2007) – Wife did not acquire unclean hands by failing to submit a postnuptial agreement to a divorce master since husband breached the agreement before the proceedings began.

Separation or Property Settlement Agreements

Crispo v. Crispo, 909 A.2d 308 (Pa. Super. 2006) – Since the parties’ property settlement agreement constituted a continuing contract, the four year statute of limitations for an action on a contract did not apply. In such case, when a contract is continuing, the statute of limitations begins to run either from the time when the alleged breach occurs or when the contract is in some way terminated.

McMullen v. Kutz, 925 A.2d 832 (Pa. Super. 2007) – When a property settlement agreement, or contract of any kind, provides for the award of counsel fees in the event of a breach, but does not specify that they must be reasonable, the trial court must examine the fees for reasonableness, as the prevailing party shall only be entitled to recover reasonable fees, no matter what is stated in the contract or agreement itself. In this case, although wife claimed that she incurred legal fees of $3,000, the Court determined that an award of $1,200 in legal fees was reasonable given that the matter was simple and straightforward, and that wife had not made any attempts to settle the matter prior to filing her petition to enforce the agreement.

Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. 2007) – The provision of the parties’ marital settlement agreement purporting to waive mother’s right to seek additional child support in exchange for an equitable distribution award was deemed invalid, where the agreement left the children without sufficient support. The parties to a divorce action may bargain between themselves, but they have no power to bargain away the rights of their children. In addition, the provision of the Agreement that required mother to pay father’s attorney fees if she challenged the Agreement was also invalid to the extent that it penalized mother, and would discourage her from, seeking a modification of the Agreement with regard to child support, if necessary and warranted.

Alimony (Maintenance)

Pendente Lite

Costlow v. Costlow, 914 A.2d 440 (Pa. Super. 2006) – An appeal from an order granting wife alimony pendente lite became ripe for review by the court when the decree of annulment was entered, as such appeal must be filed within 30 days of the grant of the annulment, not 30 days from the date of the denial of the exceptions to the order recommending the annulment be granted and payment of APL arrearages.

Busse v. Busse, 921 A.2d 1248 (Pa. Super. 2007) – An alimony pendente lite award to wife of $9,280 to $10,880 per month was not unreasonable.

Criteria

Dalrymple v. Kilishek, 920 A.2d 1275 (Pa .Super. 2007) – Wife was awarded alimony equitable reimbursement, and court costs and legal fees in a divorce proceeding.
Assisted Conception

Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa.Super. 2007) – Sperm donor for lesbian couple’s two children held to be indispensable party in support action where sperm donor was awarded shared legal and physical custody of his biological children.

Attorneys

Fees -GENERALLY

Robinson-Austin v. Robinson-Austin, 921 A.2d 1246 (Pa.Super. 2007) – The Court held that father’s appeal from order denying his request to terminate child support obligation to unemancipated child was frivolous and baseless and remanded for a determination of an award counsel fees to be paid to mother.

Child Abuse

Child in Need of Care

Bradford County Children and Youth Services v. Moon, 923 A.2d 526 (Pa.Super. 2007) – Trial court’s order directing mother to pay one-half the costs of placement for her child in county’s children and youth services agency affirmed.

Termination of Parental Rights -REASONS FOR TERMINATION

In re E.M., 908 A.2d 297 (Pa.Super. 2006) – The Court held that the involuntary termination of mother’s parental rights to her two teenage children was an abuse of discretion because, though mother had not had contact with the children for over two years, in all likelihood the children would be in foster care and unlikely to be adopted.

In the Interest of S.G., 922 A.2d 943 (Pa.Super. 2007) – Placement goal change to adoption proper for dependent children where mother’s mental health issues continue to impede her ability to function and to parent children, where it is in the children’s best interests to grow up in stable loving homes.

In re K.C.F., 928 A.2d 1046 (Pa.Super. 2007) – Involuntary termination of mother’s parental rights affirmed where an expert witness was qualified to testify about mother’s bonds with her children, even though it was the expert’s first time testifying in a termination context, and termination was in the children’s best interests.

In re L.M., 923 A.2d 505 (Pa.Super. 2007) – The Court held that as to mother’s appeal of an order terminating her parental rights, she did not waive any issues on appeal nor was her appeal untimely as the pertinent orders were not docketed. However, the Court affirmed the trial court’s order terminating mother’s parental rights as mother did not and/or would not complete her family service plan nor consistently comply with her mental health treatment.

In re Adoption of A.P., 820 A.2d 1269 (Pa.Super. 2007) – Mother appealed order terminating here parental rights to two of her children. The Court held that the trial court did not abuse its discretion by re-opening the record regarding the impact termination would affect the children, permitting a therapist who had been counseling a child to testify as an expert, nor did it abuse its discretion in terminating mother’s parental rights.

Child Custody and Visitation

Procedural -MISCELLANEOUS

Ramer v. Ramer, 914 A.2d 894 (Pa.Super. 2006) – In a matter of first impression, the Court held that the trial court did not comply with 23 Pa.C.S. § 5303 and did not consider the past criminal conduct of a parent nor appoint a qualified professional to evaluate parent, as mandated by this Section, prior to issuing a custody order. The order was vacated and the case remanded for compliance with the statute.

Dietrich v. Dietrich, 923 A.2d 461 (Pa.Super. 2007) – As a matter of first impression, the Court held that Pennsylvania Rule of Civil Procedure 1915.4(b) requires that when a custody trial is not scheduled in accordance with the Rule, that a custody petition and subsequent order must be dismissed.

Holler v. Smith, 928 A.2d 330 (Pa.Super. 2007) – Trial court’s award of attorney’s fees to father in a custody action more than 30 days after a custody order was issued affirmed. Superior Court held that custody order was temporary in nature, thus the thirty day limitation period did not apply.

Criteria for Custody -GENERALLY

Shepp v. Shepp, 906 A.2d 1165 (Pa. 2006) – Father, a fundamentalist Mormon, could not be prohibited from discussing polygamy with his minor daughter where such discussions did not jeopardize the child’s health, safety, or pose a “grave threat” to the child.

Criteria for Custody -DOMESTIC VIOLENCE OR ABUSE

Lawrence v. Bordner, 907 A.2d 1109 (Pa.Super. 2006) – The Court held that though a custody order granting custody of daughter to father existed, the trial court had the authority to enter a conflicting protection from abuse order and/or modify the existing custody order where father choked daughter, threw her against a wall and threatened to punch her in the face.

Custody and Visitation to Third Parties -GRANDPARENTS

Hiller v. Fausey, 904 A.2d 875 (Pa. 2006) – Maternal grandmother was properly awarded partial physical custody of grandchild pursuant to 23 Pa.C.S.A. § 5311, where her daughter (grandchild’s mother) was deceased, though father objected to grandmother’s involvement with the child. The Court held that the statute did not violate father’s right to care, custody and control of child.

Schmehl v. Wegelin, 927 A.2d 183 (Pa. 2007) – The Court held that 23 Pa.C.S.A. § 5312, which enables grandparents to seek partial physical custody of grandchild when the child’s parents are divorce, have been separated for six months or more, or are engaged in divorce proceedings, does not violate the Equal Protection Clause.

In the Interest of B.S., 923 A.2d 517 (Pa.Super. 2007) – Paternal grandmother did not have standing under the Juvenile Act to participate in dependency proceedings where, though she cared for the child for approximately seven months, she had not been awarded legal custody of the child pursuant to the Act.

In re F.B., 927 A.2d 268 (Pa.Super. 2007) – The Court held that paternal grandparents, who stood in loco parentis to grandchild, could file a complaint for custody even though they lacked standing to intervene in dependency action.

Custody and Visitation to Third Parties -OTHERS

In the Interest of D.K., 922 A.2d 929 (Pa.Super. 2007) – The Court held that appellant had standing to participate in dependency hearings for children whom he stood in loco parentis to and when the issue for adjudication involved the removal of the children from his care.

Morgan v. Weiser, 923 A.2d 1183 (Pa.Super. 2007) – Biological father, whose parental rights had been terminated to the subject child who was subsequently adopted by maternal grandparents, did not have in loco parentis standing to petition for partial physical custody or visitation of child. The Court held that unsupervised visitation with the child one afternoon a week not confer standing upon biological father.

Relocation

Fuehrer v. Fuehrer, 906 A.2d 1198 (Pa.Super. 2006) – Trial court erred in granting mother’s relocation petition to move with children to Netherlands. The Court held that though the children were bonded to mother and that she should retain primary physical custody of the children, that the trial court erred when it did not consider whether mother should remain int the United States with the children.

Masser v. Miller, 913 A.2d 912 (Pa.Super. 2006) – Trial court’s denial of intrastate relocation from Schuylkill County, Pennsylvania to Dauphin County, Pennsylvania affirmed. Trial court held that there was no substitute visitation arrangement that would maintain the relationship between father and child and modified the existing custody order to increase father’s time with child.

Child Support

Obligation to Pay

Saunders v. Saunders, 908 A.2d 356 (Pa. Super. 2006) – As primary physical custodial parent, mother was not required to pay child support to father on the ground that her income was greater than father’s income. Further, father was not entitled to a deviation in his child support obligation based on Colonna.

Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. 2007) – The Court held that a third-party sperm donor has a child support obligation where the donor was actively involved in the children’s lives, and there is another biological parent and an individual standing in loco parentis already supporting the children. The Superior Court vacated the award of support from the in loco parentis parent to the biological mother, and remanded the matter to the trial court with directions that the biological father (sperm-donor) be joined as an indispensable party for a hearing at which the support obligation of each litigant was to be recalculated, and thus, divided by three people. However, in the interim, before the remand reached the Court, the third party sperm donor died, and thus, the Court was never able to make this determination.

Robinson-Austin v. Robinson-Austin, 921 A.2d 1246 (Pa. Super. 2007) – The non-custodial parent, father, is obligated to pay child support for the parties’ son until he reaches age 18 or graduates from high school, whichever occurs later in time. In addition, since father filed this ridiculous petition to terminate his child support obligation prior to his son’s graduation from high school, claiming that he could work and support himself while attending school, the Superior Court remanded the matter to the lower court to determine an award of counsel fees to mother for having to defend this frivolous petition in the first place.

Bradford County Children and Youth Services v. Moon, 923 A.2d 526 (Pa. Super. 2007) – The Court held that mother was required to pay one-half of the costs of support for her child who was placed with the child services agency.

Guidelines -INCOME

Krankowski v. O’Neil, 928 A.2d 284 (Pa. Super. 2007) – Father’s living quarter and post allowances as a civilian employee of the Department of Defense posted abroad were includable in his net income for purposes of calculating his child support obligation, as the child would receive the benefit of such “income” if the child were living with father.

Mencer v. Ruch, 928 A.2d 294 (Pa. Super. 2007) – The fact that father had no ability to control his receipt of funds from a supplemental needs trust, which was created pursuant to New York state law from the proceeds of a personal injury action, was not pertinent to whether the payments made for his benefit were “income” for child support purposes, and the fact that the trust was created under state law, rather than a private trust instrument, was irrelevant. In addition, a person’s income must include his/her earning capacity, and a voluntary reduction in earned income will not change that, as child support will still be calculated based upon earning capacity rather than actual earnings in such a case.

Guidelines -IMPUTED INCOME

Reinert v. Reinert, 926 A.2d 539 (Pa. Super. 2007) – The Court applied the nurturing parent doctrine when calculating mother’s child support obligation, and determined that her obligation should be suspended, as her earning capacity was zero because she had to stay home with her other two infant children from her new relationship. The Court determined that if mother returned to work, she and her two infant children would be in worse financial shape due to the costs associated with child care and the loss of the government assistance benefits she was receiving. The issue in such a case is not whose child mother is caring for, and that he/she be the child for whom support is being sought, but what mother’s earning capacity should realistically be.

Krankowski v. O’Neil, 928 A.2d 284 (Pa. Super. 2007) – The Court did not assign an earning capacity to mother, who had a law degree, but chose to remain at home with the minor child, who was mentally retarded and autistic, because mother had not had meaningful employment in her field for ten years, and would have to take the state’s bar exam in order to practice law, and father resided in Germany, and thus, was unavailable to provide assistance to mother in matters relating to the child.

Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. 2007) – The Court applied the nurturing parent doctrine when calculating child support, so as to deem mother’s earning capacity to be zero because the parties had previously agreed that mother would stay home and care for the parties’ four children prior to separation. Thus, mother was afforded the opportunity to stay at home until the youngest child was in school full time.

Deviation from the Guidelines -EDUCATION

Gibbons v. Kugle, 908 A.2d 916 (Pa. Super. 2006) – Father was required to contribute to the parochial school tuition of the parties’ minor child in proportion to his net income where the Court determined that the need was a reasonable one and was consistent with the standard of living and station in life of the parties prior to separation. Although the child in question did not attend parochial school prior to the parties’ separation, she was not even school age at that time. Regardless, the Court determined that parochial school was reasonable given the fact that mother relocated with her new husband to an area where the school system was not as conducive to learning as the child’s prior school.

Modification -REDUCTION IN INCOME

Grigoruk v. Grigoruk, 912 A.2d 311 (Pa. Super. 2006) – The earning capacity of mother, who was assumed to have been terminated from her prior employment as the CEO of the Girl Scout Council for willful misconduct, was still based upon her current, reduced income as a reading specialist for child support modification purposes. In addition, the court determined that mother had not lost her job in an effort to avoid her support obligation. Further, mother undertook a responsible job search when she lost her job, including positions offering compensation at a rate equal to her prior earnings, and then made a decision to take a lower paying job, which was the only offer she received, rather than continuing her job search with no salary. Submission of 10 job applications in six months may be considered a reasonable effort to find employment. Thus, the court held that mother did not have an ongoing duty to mitigate her reduced income for child support purposes, and instead was permitted to discontinue her job search to avoid jeopardizing her present employment as a reading specialist.

Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007) – The trial court improperly considered evidence outside the court’s record when the court referred to its own internet job search of the availability of jobs in father’s field, so as to establish father’s income for child support purposes. Further, the court determined that father’s income was involuntarily reduced when his company demoted him because he could not make himself available to them 24 hours a day due to the fact that he had recently been awarded primary physical custody of the parties’ daughter.

Dissolving the Marital Relationship

Jurisdiction

Yelenic v. Clark, 922 A.2d 935 (Pa.Super. 2007) – As long as grounds for divorce have been established, the death of a party does not abate an equitable distribution matter. However, the Court held that a posthumous divorce decree would not be entered after the death of a party, though the couple’s property settlement agreement was enforced after husband’s death.

Procedural Matters -MISCELLANEOUS

Serbin v. Serbin, 920 A.2d 186 (Pa. Super. 2007) – Since court reporters are court employees, the trial court may order payment of their fees by an attorney in divorce proceedings.

Halpern v. Halpern, 926 A.2d 445 (Pa. Super. 2007) – An order is not “entered” with the Court, for purposes of the 3-day limitations period governing modification or rescission of the order until it is filed with the prothonotary.

Domestic Violence

Civil Actions and Non-Criminal Procedures

McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006) – For the purpose of the Protection from Abuse Act (PFA), petitioner and respondent were deemed to be persons related by affinity, as they were related by marriage because petitioner was married to respondent’s brother. Thus, petitioner had standing to file a PFA against respondent.

Kelley v. Mueller, 912 A.2d 202 (Pa. 2006) – Plaintiff, girlfriend, filed a PFA against her former boyfriend, and upon the entrance of the PFA Order, the court of common pleas ordered the search of boyfriend’s father’s residence and the seizure of boyfriend’s weapons and his father’s handgun as well. On appeal, boyfriend and his father raised the issue for the first time that this search and seizure offended their fourth amendment rights. However, the Supreme Court held that they waived their right to make this argument since they failed to do so at the lower level as required by Pa.R.A.P. 302(a).

Lanza v. Simconis, 914 A.2d 902 (Pa. Super. 2006) – The trial court abused its discretion in denying mother’s petition for a temporary PFA order before a proper evidentiary hearing was held, in which mother could have had the opportunity to retain counsel, submit witnesses to support her allegations of abuse, and cross-examine defendant/father. The court denied the temporary order because the judge could not determine which party was being truthful. Thus, the Court remanded this matter to the lower court for a proper hearing to determine whether a PFA order is warranted.

Commonwealth v. Brumbaugh, 2007 WL 2178095, 2007 PA Super 226 (filed July 31, 2007) – The evidence was sufficient to warrant a conviction for indirect criminal contempt for violation of a PFA Order prohibiting any contact with the minor plaintiff, where the defendant attended a party with plaintiff at her request.

Marriage

Common Law

Costello v. W.C.A.B., 916 A.2d 1242 (Pa. Cmwlth. 2007) – An amendment to the Marriage Law, which provides that no common law marriage commenced after January 1, 2005 shall be valid, provided the sole basis for determining the date on which common law marriage ended in Pennsylvania.

Paternity

Presumption of Paternity

N.C. v. M.H., 923 A.2d 499 (Pa. Super. 2007) – Ex-husband was not estopped from denying paternity of a child who was born during the parties’ marriage where ex-husband was led to believe he was the biological father based upon ex-wife’s fraud. During the parties’ marriage, ex-wife omitted materially relevant facts, including the fact that she had unprotected sex with another man, she induced ex-husband into acknowledging the child as his own, based on her representations that she became pregnant as a result of her failed birth control after relations with him, and as a result, ex-husband held the child out as his own for more than a decade.

Genetic Testing

E.W. v. T.S., 916 A.2d 1197 (Pa. Super. 2007) – The Uniform Act on Blood Tests to Determine Paternity did not give putative father the right to compel mother’s current husband to submit to blood tests, although mother led both putative father and her husband to believe that they were each the biological father of the child in question.

Barr v. Bartolo, 927 A.2d 635 (Pa. Super. 2007) – Genetic testing of putative father was barred under the doctrine of equitable estoppel (paternity by estoppel), in mother’s action against putative father to establish paternity and for child support, where the child believed that mother’s husband was her father until she was 11 years old, he was named as her father on her birth certificate and on school records until she was in ninth grade, he claimed her on his taxes, and he went to a parent-teacher conference for her more than 5 years after a blood test excluded him as her biological father.

Property Division

Classification of Property -REALTY

Johnson v. Johnson, 908 A.2d 290 (Pa. Super. 2006) – In order to satisfy his debt to his former wife, she was not entitled to collect any of the proceeds of the sale of former husband’s vacation, which he held as tenancies by the entireties with his new wife.4. REALTY

Classification of Property – RETIREMENT, DISABILITY, AND SOCIAL SECURITY BENEFITS

Rimel v. Rimel, 913 A.2d 289 (Pa. Super. 2006) – In order to equate income that would be provided to the parties following a divorce, husband was entitled to a social security set-off against his civil service retirement system pension where he was an employee of the federal government and did not participate in the social security program for some period during the parties’ marriage. Only a set-off was necessary because there were time periods during the marriage when husband participated in social security through other employment. In addition, wife was employed and participated in social security program during the marriage as well.

Classification of Property -MISCELLANEOUS

Kulp v. Kulp, 920 A.2d 867 (Pa. Super. 2007) – Given the extremely sensitive nature of the issue of the disposition of the parties’ sons’ cremated remains at equitable distribution, and husband’s strong opposition to the division thereof, the trial court abused its discretion in using its equitable powers to override the desires of one of the next of kin, husband, as to the division of the child’s remains, and in ordering that the remains be divided between the parties.

Factors -GENERALLY

Busse v. Busse, 921 A.2d 1248 (Pa. Super. 2007) – Where wife had received a substantial amount of alimony pendente lite over the past several years, with one year amounting to about $117,000, the Court still determined that an equal division of the marital estate was appropriate, with no post-divorce alimony. In addition, wife was also entitled to an attorney fee award of $50,000, as she incurred substantial fees due to husband’s actions, although she claimed her total fees incurred were $150,000.

Modification

Lowers v. Lowers, 911 A.2d 553 (Pa. Super. 2006) – Since the trial court acted within 30 days of the entry of the parties’ divorce decree, the court had the authority to make modifications to the decree by appointing a master in order to effectuate economic justice between the parties. Although the complaint in divorce did not specifically claim economic issues, both parties had filed inventory statements with the court, engaged in discovery after the complaint was filed, and negotiated a settlement of all economic issues prior to the entry of a divorce decree. Thus, the court determined that the appointment of a master was in line with the parties’ intentions to resolve their economic issues, given their de facto agreement to bifurcate the divorce from the pending economic claims.

Getty v. Getty, 917 A.2d 869 (Pa. Super. 2007) – Because the trial court’s order granting reconsideration rendered husband’s initial appeal inoperative and due to the fact that husband never filed a notice of appeal from the order granting reconsideration, the appellate court lacked jurisdiction over husband’s appeal.