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Divorce Law in the Fifty States – Pennsylvania – 8/1/2007 – 7/31/2008

Adoption

Who Can Adopt

In the Int. of B.L.J., 938 A.2d 1068 (Pa.Super. 2007) – Dismissal of prospective adoptive parents’ Termination Petition for lack of standing was reversed by the Superior Court, finding that the adoptive parents were chosen by the child’s biological grandparent who had in loco parentis status after undertaking all parental duties since child was only a few months old.

Procedural Issues

In re J.A.S., 939 A.2d 403 (Pa.Super. 2007) – Strict adherence to Section 2711 required that the Trial Court first review the timeliness of biological Mother’s petition revoking her consent to adoption before addressing whether the consent conformed to statute.

In the int. of M.S.K., 936 A.2d 103 (Pa.Super. 2007) – Failure of court-appointed counsel to file a timely appeal did not qualify as breakdown in court operations entitling that party to file an appeal nunc pro tunc.

Effect of Adoption

In re Invol. Term. of Par. Rts. to E.A.P., a Minor, 944 A.2d 79 (Pa.Super. 2008) – Order terminating incarcerated Mother’s parental rights under Pa.C.S.A. § 2511(a)(1) and (a)(2) affirmed where Mother’s repeated incarcerations for most of the minor child’s life and sex offender status prevented her from fostering a continued a close relationship with the child, despite participation in prison programs and cooperation with LCCYS, resulting in no parent-child bond.

In re S.B., 943 A.2d 973 (Pa.Super. 2008) – Finding clear and convincing evidence that the child’s Father may have sexually abused her exists, and despite progress regarding permanency plans, the order changing the goal from returning the child home to adoption was affirmed. The Court held that adoption was in best interests of the child as neither parent could provide a home in which the child felt safe.

Miscellaneous

In re C.T., 944 A.2d 779 (Pa.Super. 2008) – Termination of Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(1) and (a)(2), (a)(5) and (a)(8), as a result of Father’s failure to maintain contact with the children for the first 10 months of their commitment to DHS, as well as his failure to contact the children, once his whereabouts were ascertained, outside the 20 or fewer supervised visitation sessions in which he participated, preventing the formation of a true parent-child bond. The goal was changed to “adoption,” and termination was found in the best interests of the children

In the Int. of K.Z.S., 946 A.2d 753 (Pa.Super. 2008) – The involuntary termination of parental rights was affirmed under Section 2511(b), where the Court found a strong bond existed between child and their caregiver, focusing on protecting such bond where the parent-child bond is weak, and no evidence suggesting that the termination of parental rights would be detrimental to child existed.

In the Mtr. of T.D., 949 A.2d 910 (Pa.Super. 2008) – Despite the child’s ambivalence against adoption at 12-years-old, an emotional bond between parent and child, at least from the child’s perspective, and due to the lack of long-term pre-adoptive placement, the involuntary termination of the parental rights of both parents was affirmed based on their failure to perform their parental duties for over twelve months or to remedy the causes that led to the child’s removal and the fact that these causes were not likely to remedy within a reasonable period of time.

In re R.C., 945 A.2d 182 (Pa.Super. 2008) – Incarcerated Father’s compliance with a No-Contact Order, prohibiting parent-child contact, cannot be a basis for finding that aggravating circumstances existed as a result of Father’s failure to maintain substantial and continual contact with his minor child for six months.

In re Adopt. of C.L.G., 2007 Pa.Super. 355 (Nov. 29, 2007) – Incarceration of 2 to 5 years is not a basis for involuntary termination of parental rights when a parent has resolved initial issues regarding drug and alcohol abuse, lack of full-time employment and suitable housing by complying with all agency requirements, including undergoing therapy and drug screenings.

In re I.G., 939 A.2d 950 (Pa.Super. 2007) – An Order terminating the parental rights of an incarcerated Father was reversed where evidence existed that Father reasonably complied with family service plan objectives and maintained a substantial relationship with the children despite incarceration, holding that the Trial Court failed to recognize that it was in the children’s best interest to maintain the parent-child bond, especially where relative placement was an alternative goal and the parent requested that such placement be ordered.

In re S.D.T., Jr., 934 A.2d 703 (Pa.Super. 2007) – Order terminating Father’s parental rights vacated where the child’s suicidal ideations were the basis for finding that termination is in the child’s best interests. The Superior Court found no evidence which demonstrated that the child’s suicidal ideations were the result of frustration over continued broken promises by the parent.

Agreements

Separation or Property Settlement Agreements

Danz v. Danz, 947 A.2d 750 (Pa.Super. 2008) – Divorce Decree vacated under Rule 1920.2(b) where no responsive pleading to the divorce complaint was filed and no evidence was placed on the record regarding the residence of the parties or written agreement establishing proper venue. Under 1920.2(b) a Trial Court must ensure that the record establishes that venue is proper prior to directing the entry of a divorce decree.

Alimony (Maintenance)

Types of Alimony -PERMANENT ALIMONY

Lawson v. Lawson, 940 A.2d 444 (Pa.Super. 2007) – Husband appealed award of alimony and medical insurance for gap coverage to Wife. Award was not found an abuse of discretion where Wife was totally disabled after suffering a stroke following separation but prior to divorce and resided in long-term health care facility and despite the fact that the marriage only lasted four years, that Wife made no extraordinary contributions to Husband’s earning potential or as homemaker and that she may be eligible for medical assistance.

Modification -CHANGE OF CIRCUMSTANCES

Kokolis v. Kokolis, 927 A.2d 663 (Pa.Super. 2007) – After experiencing complications as a result of undergoing back surgery, Wife requested modification of a 5 year alimony award at a rate of $2,000 per month. Modification based on Wife’s decrease in earnings and increase in needs due to her limited physical abilities following surgery was recommended and the Trial Court agreed, modifying even further finding that the hearing officer erred in considering income that Wife received in equitable distribution in determining the amount of alimony awarded. The Superior Court affirmed.

Preece v. Preece, 932 A.2d 272 (Pa.Super. 2007) – Alimony award set at zero under a marital settlement agreement as a result of Husband’s unemployment, with leave to seek modification upon a substantial change of circumstances. Modification was granted based on Husband securing full-time employment, and was made retroactive to the date Husband began such employment, two years prior to Wife’s Petition for Modification. Alimony was awarded in the amount of $450 per month to Wife.

Termination -GENERALLY

Gates v. Gates, 933 A.2d 102 (Pa.Super. 2007) – Husband appealed a Decree awarding Wife $4,000 a month in alimony for an indefinite term extending to the couple’s minor son’s 18th birthday. The Superior Court found the Trial Court correctly concluded alimony was unquestionably necessary to effectuate economic justice, and that the amount of the award was reasonable. The Court remanded, however, to eliminate the contingency in the award involving the child to prevent re-characterization of the award as child support.

Termination -REMARRIAGE OR COHABITATION

Wilkinson v. Wilkinson, 927 A.2d 665 (Pa.Super. 2007) – The Trial Court agreed with Husband’s objections to Wife receiving alimony following a thirty year marriage, as a result of cohabitation, and barred her from receiving alimony finding that Wife’s testimony concerning her relationship with the gentleman in question was not credible.

Alternative Dispute Resolution

Assisted Conception

J.F. v. D.B., 941 A.2d 718 (Pa.Super. 2008) – The Trial Court’s order denying Father’s request for the reimbursement of support payments made to gestational carrier of Father’s three sons was affirmed. The Superior Court held that even though gestational carrier was caring for the children in defiance of Father’s wishes, because gestational carrier was caring for the children, and even though it was determined following protracted litigation that she lacked standing to seek custody of the children, she could seek child support from Father for the children’s benefit while they were in her care.

Ferguson v. McKiernan, 940 A.2d 1236 (Pa.Super. 2007) – The Supreme Court reversed the Superior Court’s order affirming the trial court’s support order against a sperm donor who was a former intimate partner and subsequent friend of Mother’s. The Supreme Court held that the oral agreement between the parties that sperm donor would donate his sperm in a clinical setting and Mother would undergo in vitro fertilization to conceive a child (in this case twins), and, in exchange, the parties would preserve the anonymity of sperm donor’s parentage, sperm donor would never seek custody of the children and that Mother would never seek child support from sperm donor, was a valid, binding and enforceable agreement.

Child Abuse

Termination of Parental Rights -PROCEDURAL ISSUES

In the Interest of B.L.J., Jr., 938 A.2d 1068 (Pa.Super. 2007) – The Superior Court held that the prospective adoptive parents of a child who were selected by the child’s paternal grandmother, who had cared for the child his whole life prior to falling ill with cancer and who had petitioned for the termination of Mother’s parental rights, had standing in the termination action and were allowed to substitute for the grandmother, who died during the proceedings, as third parties with in loco parentis status.

In re I.G., 939 A.2d 950 (Pa. Super. 2007) – The Superior Court reversed the Trial Court’s order terminating Father’s parental rights to his two children stating that incarceration alone is not a sufficient basis to support a termination of parental rights and emphasizing that the trial court has a responsibility to comprehensively evaluate every termination of parental rights case under the statute.

In the Interest of M.S.K., 936 A.2d 103 (Pa.Super. 2007) – The Superior Court affirmed the Trial Court’s termination of Father’s parental rights and denying Father’s leave to appeal nunc pro tunc even though his court-appointed attorney was negligent in failing to timely file an appeal on Father’s behalf. The trial court held that nunc pro tunc relief would not be granted on the basis of the court-appointed attorney’s negligence.

In re S.D.T., Jr., 934 A.2d 703 (Pa.Super. 2007) – The Superior Court vacated the Orphans’ Court’s decree terminating Father’s parental rights to son who expressed suicidal ideations because the evidence did not support the Orphans’ Court’s determination that termination was in the best interest of the child. The case was remanded to the Orphans’ Court for further evidentiary hearing to develop the record and submit a supplemental opinion.

Termination of Parental Rights -REASONS FOR TERMINATION

In re Adoption of W.J.R., 952 A.2d 680 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order terminating Father’s parental rights to his minor son where Father failed to accomplish his family service plan goals and child had a strong bond with his foster parents.

In the Interest of K.Z.S., 946 A.2d 753 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order terminating Mother’s parental rights where foster parent was the child’s primary attachment figure after four years of placement and termination of Mother’s parental rights would not irreparably harm the child.

In the Matter of S.B., 943 A.2d 973 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order changing the family goal from “return home” to adoption upon the appeal of both natural parents where the Trial Court conducted a thorough review of the case and concluded that adoption would be in the best interests of the parties’ minor daughter.

In the Matter of T.D., 949 A.2d 910 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order terminating Mother and Father’s parental rights to their minor son where both parents were unable to provide the minimum level of parental care and termination served the child’s best interests.

In re Z.S.W., 946 A.2d 726 (Pa.Super. 2008) – The Superior Court reversed the order of the Trial Court denying the Allegheny County Office of Children, Youth and Families’ Petition to Terminate Father’s parental rights. Father became aware that Z.S.W. may have been his child a year before the termination hearing and his parentage was later confirmed by a paternity test. Father’s adult daughter contacted the agency to inquire about Z.S.W., but Father never initiated contact with the agency. The trial court denied the termination petition on the basis that Father “was only required to attempt a level of parenting consistent with his and the agency’s knowledge of parentage.” The Superior Court stated that to “adopt the Trial Court’s rationale would relieve all fathers of their parental duties until their parentage was confirmed by a paternity test” and ordered the case remanded for entry of a decree terminating Father’s parental rights.

In re Invol. Term. of Par. Rts. to E.A.P., a Minor, 944 A.2d 79 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order terminating Mother’s parental rights to her minor daughter who was adjudicated dependent at seven months old, had been in six different foster homes, was ten years old at the time of the termination hearing, and Mother had only been out of prison for a total of seventeen months since daughter was seven months old. The Trial Court held that termination was in the child’s best interest where there was no bond between Mother and daughter.

In re Adoption of K.J., 936 A.2d 1128 (Pa.Super. 2007) – The Superior Court affirmed the Trial Court’s judgment terminating Mother’s parental rights to three of her minor children where Mother was incarcerated and sentenced to a prison term of eighteen to forty years, during which time she would be incapable of parenting the children, and the termination was in the best interests of the children.

In the Matter of A.K. and L.K., 936 A.2d 528 (Pa.Super. 2007) – The Superior Court affirmed the judgment of the Trial Court which changed the placement goal for twin girls in foster care to adoption. Father, who was incarcerated, appealed the Trial Court’s determination because he had made progress toward his permanency plan goals. The Superior Court affirmed the goal change to adoption because the Trial Court appropriately considered all of the statutory factors and held that adoption by the children’s foster parents, who had cared for them since the age of four months old to three years old at the time of the hearing, was in their best interests.

Child Custody and Visitation

Jurisdiction – UCCJA/UCCJEA/PKPA

Billhime v. Billhime, 952 A.2d 1174 (Pa.Super. 2008) – The Superior Court reversed the order of the Trial Court denying Mother’s motion to relinquish jurisdiction of the pending custody matter to the State of Florida and remanded the matter to the Trial Court to determine whether it had jurisdiction to modify its initial custody order. The Superior Court found that the Trial Court erred when it did not consider that the children no longer had continuing significant contacts with Pennsylvania following the children’s relocation to Florida.

Hague Convention

Tsai-Yi Yang v. Tsui, 499 Fed 259 (3d Cir. 2007) – The United States Court of Appeals for the Third Circuit affirmed the judgment of the United States District Court for the Western District of Pennsylvania ordering the return of the parties’ minor child to Canada and her Mother’s custody under the Hague Convention, following Father’s wrongful retention of the child in Pittsburgh. Additionally, the District Court made its judgment following an analysis of the “wishes of the child” exception, which it held did not apply to the instant case.

Procedural -MISCELLANEOUS

Ottolini v. Barrett, 954 A.2d 610 (Pa.Super. 2008) – The Superior Court vacated the Trial Court’s order granting Mother primary physical custody of the parties’ two children and remanded the matter for a new custody hearing. On remand, the Superior Court directed the Trial Court to interview the children in conformity with Pa.R.C.P. 1915.11(b) and stated that the Trial Court was prohibited from considering or admitting the report of the custody evaluator, if Father so objected, unless the custody evaluator was subject to cross examination.

Yates v. Yates, 936 A.2d 1191 (Pa.Super. 2007) – The Superior Court ordered the Trial Court to summit an opinion addressing the matters complained of on appeal by Father in a custody matter involving a dispute as to the contents of a custody agreement. The panel retained jurisdiction for further consideration following receipt of the Trial Court’s opinion.

Enforcement

Hopkins v. Byes, 954 A.2d 654 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order finding Mother in contempt of a custody and visitation order and assessing Mother $500 in attorney’s fees, to be paid to Father’s counsel. The Superior Court stated that it was not necessary for the Trial Court to make a determination as to Mother’s ability to pay prior to ordering her to pay the counsel fees.

Modification of Custody -GENERALLY

A.J.B. v. M.P.B., 945 A.2d 744 (Pa.Super. 2008) – The Superior Court affirmed the order of the Trial Court denying Father’s Petition to Modify an existing custody order, despite the Trial Court’s evidentiary error in admitting unqualified expert testimony regarding pornography’s effect on the brain, which the Superior Court concluded was harmless.

Modification of Custody -FACTORS JUSTIFYING MODIFICATION

N.H.M. v. P.O.T., 947 A.2d 1268 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order transferring primary physical custody of the parties’ children from Mother to Father. The trial court awarded primary physical custody of the children to Father after concluding that inappropriate physical contact had occurred between Mother’s boyfriend’s son and one of the children, and that the child who was inappropriately touched was emotionally disturbed by the incident.

Relocation

Hogrelius v. Martin, 950 A.2d 345 (Pa.Super. 2008) – The Superior Court affirmed the order of the Trial Court permitting Mother to relocate to Virginia with the parties’ young son notwithstanding Father’s regular contact with the child because the proposed custody schedule increased Father’s extended custody of his son and adequately fostered the father-son relationship.

Klos v. Klos, 934 A.2d 724 (Pa.Super. 2007) – The Superior Court affirmed the Trial Court’s orders granting Father primary physical custody, permitting him to relocate the parties’ minor children to Florida, and setting forth a visitation schedule for the parties. The Superior Court stated that the case was not a traditional relocation case because Father had moved to Florida before Mother filed her custody complaint in Pennsylvania. As such, the Superior Court stated that under the circumstances, the primary focus of the Trial Court was to determine whether living with Mother in Pennsylvania or Father in Florida was in the best interests of the children, rather than conducting a strict relocation analysis

Appeal

Holler v. Smith, 928 A.2d 330 (Pa.Super 2007) – The Superior Court disagreed that the Friedenbloom analysis, regarding the filing of an action for counsel fees more than 30 days after a final order, applied where the underlying action was for custody. In Freidenbloom, the Superior Court commented on 42 Pa.C.S.A. § 2503(9) and noted that suits for counsel fees cannot be maintained separately from the principal claim, but found that such petition would be timely if an order had been modified or rescinded within 30 days to permit the action. The Superior Court disagreed based on the nature of custody actions and the likelihood of repeated modifications of custody orders. Freidenbloom v. Weyant, 214 A.2d 1253 (Pa.Super. 2003).

Child Support

Obligation to Pay

J.F. v. D.B., 941 A.2d 718 (Pa.Super. 2008) – Biological Father awarded partial custody and visitation and directed to pay child support for triplets for the period in which the gestational carrier had temporary legal custody. The Superior Court vacated the Order directing an award of full legal and physical custody to biological Father, who then filed a complaint for support seeking recovery of all payments made to the surrogate under the Trial Court’s Order. The claim was denied and the Superior Court agreed finding that the right to child support belongs to the children and that during her custody time the Surrogate stood in loco parentis providing the children food, shelter and subsistence.

Wieland v. Wieland v. Dillon, 948 A.2d 863 (Pa.Super. 2008) – Denial of putative Father’s Petition to Intervene in Mother’s support action against biological Father affirmed. The Superior Court held that the punitive Father was not denied due process and was given an opportunity to participate in the hearings that resulted in the support Order against the biological Father. The Court further denied punitive Father’s invitation to apply paternity by estoppel finding it too late to apply paternity by estoppel once the results of the paternity test were known to the child, especially where the preservation of an intact family was not a concern.

Conroy v. Rosenwald, 940 A.2d 409 (Pa.Super. 2007) – Support Order entered against Father after the Trial Court denied his request for a hearing on paternity by estoppel and subjected him to DNA testing which proved paternity. On appeal, Mother was not estopped from seeking support from Father despite naming her ex-boyfriend on the birth certificate, suing him twice previously for support, or the fact that he was granted partial custody of the child. The Superior Court affirmed holding that the public policy of paternity by estoppel did not apply since there was no family unit to preserve and that the child already knew her biological Father. The Court rejected Father’s argument that the DNA evidence should not have been admitted under the “Poisonous Tree” Doctrine, as it may not have existed but for the Trial Court’s decision to deny a hearing on Father’s estoppel defense. The Trial Court applied partial estoppel and only permitted child support to be obtained from Father after his admission of paternity and DNA testing.

Ferguson v. McKiernan, 940 A.2d 1236 (Pa.Super. 2007) – Mother of child conceived through in vitro fertilization, awarded support against her former boyfriend, and voluntary sperm donor, after Mother agreed to release him from all financial burden in exchange for a waiver of custody rights. Although the Superior Court affirmed the finding that the oral agreement, although valid, was against public policy, it held that sperm donation contracts generally are not violative of public policy and are thus enforceable if other contract requirements are met, allowing Mother to contractually waive child’s right to support and opening the door for the Pennsylvania courts to exercise its discretion in future cases as the facts may require.

Guidelines -INCOME

Mencer v. Ruch, 928 A.2d 294 (Pa.Super. 2007) – The Superior Court reversed the Trial Court’s order finding that Father’s income from a special needs trust/supplemental needs trust created pursuant to New York state law from the proceeds of Father’s personal injury action, which allows a disabled person to keep trust distributions without disqualifying a beneficiary from receiving governmental benefits, should be considered income for child support purposes. The fact that Father had no ability to control the payments, as the trustee of a supplement needs trust is not permitted to make distributions “that do not benefit the beneficiary directly but will pay for housing and other items that enhance the beneficiary’s life,” was found not pertinent. The Superior Court held that the Trial Court misapplied the law by failing to consider the distributions as income and neglecting to calculate support based on Father’s earning capacity.

Guidelines -INCOME IN EXCESS OF GUIDELINES

Sirio v. Sirio, 951 A.2d 1188 (Pa.Super. 2008) – Father appealed recommendation to pay support equal to 100% of the children’s reasonable needs without a determination of credibility or investigating the reasonableness of the purported expenses alleged. Superior Court agreed and dismissed concerns that the lesser-earning parent in high-income cases may have no financial responsibility for the children if that parent’s income were entirely consumed by his/her personal expenses refusing to impose a correlation between Melzer and non-Melzer cases. The Court questioned whether Mother’s expenditures were reasonable, rejecting the Trial Court’s rationale that a parent’s historical expenditures were “reasonable needs,” and held that capital expenditures for home improvements must be amortized over a reasonable period, instead of counted as a budgetary expense in a single year. The Court also rejected the inclusion of legal fees as part of the children’s reasonable needs.

Deviation from the Guidelines -SHARED CUSTODY/EXTENDED VISITATION

Bulgarelli v. Bulgarelli, 934 A.2d 107 (Pa.Super. 2007) – Father appealed a support order requiring him to pay $5,084.85 a month, or 15.25% of his salary, for the parties’ three children pursuant to Melzer v. Witsberger, 480 A.2d 991 (1984), claiming the order did not consider the 50/50 custody arrangement or his charitable donations. The Superior Court held that the Trial Court is not obligated calculate an adjustment for shared physical custody in Melzer cases under Part II of Pa.R.C.P. 1910.16-4, but remanded directing the Trial Court to determine the necessity of an adjustment as a result of any reasonable charitable contributions.

Deviation from the Guidelines -INCARCERATION

Nash v. Herbster, 932 A.2d 183 (Pa.Super 2007) – Father’s appeal of Trial Court’s denial of his Petition to Modify child support based on a “substantial change of circumstances in [his] earning capacity” as a result of incarceration, reasoning that “incarceration was not a change in circumstance permitting modification or termination of child support order.” Yerks v. Yerks, 782 A.2d 1068 (Pa. Super. 2001). Father appealed under Pa.R.C.P. 1910.19(f), which permits modification when obligor is unable to pay with no reasonable prospect there will be an ability to pay in the foreseeable future. The Superior Court vacated the order, directing the Trial Court to follow Rule 1910.19(f).

Deviation from the Guidelines -SOCIAL SECURITY BENEFITS

Silver v. Pinskey, 2008 Pa.Super. 66 (April 4, 2008) – Court erred in directing that Mother split the children’s social security benefits with Father, whose support obligation was zero, as the benefits were not assigned to pay a support obligation but rather to “effect equity” which is not permitted by federal law.

Modification -RETROACTIVE AWARD

Krebs v. Krebs, 944 A.2d 768 (Pa.Super. 2008) – Retroactive modification as a result of Father’s intentional misrepresentation of substantial increases in wages for several years, granted. The Superior Court affirmed holding that parties are duty bound to report material changes affecting support. Modification was ordered retroactive back to the date Father first misrepresented income, under 23 Pa.C.S.A. §4352(e), rather than from the date Mother could have, but failed to, request an automatic three year review of the support order.

Termination of Support

Grasso v. Grasso, 81 Pa. D. & C. 4th 475 (Pa.Comm.Pl. 2007) – Father’s exceptions to the support Master’s recommendation continuing support while his 19-year old son repeats his senior year in high school, denied under the Superior Court’s decision in Marino by Marino v. Marino, 601 A.2d 1240 (1992), which found the continuance of a support obligation appropriate where a student showed “aptitude, ability and desire to continue with course study.” The Marino decision suggested that a court should not respond to dismal attendance during one high school year with a cessation of support.

Post-Majority Support

Style v. Shaub, 955 A.2d 403 (Pa.Super. 2008) – Mother’s petition for support of a disabled adult child after termination of support following emancipation dismissed based on her failure to meet the burden to overcome the presumption that the child was capable of self-support by showing that the child was incapable if maintaining gainful employment when, though he lacks initiative, he has adequate communication skills, can perform a variety of physical tasks slowly but consistently and is courteous and cooperative. The Court affirmed that Mother had not met her burden and excused Father from paying support.

Kotzbauer v. Kotzbauer, 937 A.2d 487 (Pa.Super. 2007) – Post-emancipation support request for the parties’ daughter as a result of being diagnosed as an epileptic. The child attended college as a full-time student to remain on Father’s medical insurance, and worked 16 hours a week with full-time hours unavailable to her. An Order for support was entered and Father appealed primarily attacking the quality of the evidence presented on behalf of his daughter. The Superior Court affirmed holding support was properly ordered per 23 Pa.C.S. 4321(3) where a child is unable to work full-time at a supporting wage, but disagreed that expert medical testimony was necessary to award support to a dependent adult.

Enforcement (UIFSA) -ARREARAGE

Faust v. Walker, 945 A.2d 212 (Pa.Super. 2008) – Father was ordered to pay $5,000 of a $10,000 personal injury settlement towards his $12,000 arrearage. The Trial Court later granted Father’s Motion to Strike the attachment striking its judgment and entering an Order of Attachment in the amount of $1,800.93 under 23 Pa.C.S.A. §4308.1. The Superior Court affirmed finding no error in the Trial Court’s application of the statute, and held that the “net proceeds” of the debtor’s personal injury claim attributable to the amount the debtor owed in child support arrears was the amount in excess of $5,000 payable to the debtor after payment of his attorney fees and costs.

Domestic Violence

Civil Actions and Non-Criminal Procedures

Custer v. Cochran, 933 A.2d. 1050 (Pa.Super. 2007) – The Superior Court, en banc, affirmed the Trial Court’s order granting Sister a PFA against Brother after a physical altercation at their family business. The Protection From Abuse Act applies to biological Sister and Brother even though they did not reside in the same residence.

In re Expungements, 938 A.2d. 1075 (Pa.Super. 2007) – The Superior Court reversed the order of the Trial Court granting an individual’s Petition to Remove the statutory disability, based on prior involuntary psychiatric commitment, barring him from possessing firearms and permitting the guns to be returned to him. The guns were removed upon the issuance of a PFA order, which expired prior to the individual’s petition. The Superior Court held that the Pennsylvania State Police, which opposed the return of the firearms because of the statutory disability imposed on the individual due to prior involuntary psychiatric commitment, had standing to challenge the individual’s petition and the case was remanded for further hearing.

Scott v. Shay, 928 A.2d. 312 (Pa.Super. 2007) –Protective Order issued against defendant vacated based on lack of standing. The Superior Court held that a victim of a sexual assault, who is not a “family or household member,” as defined under section 6102(a) of the Protection from Abuse Act, does not attain standing under the act simply by virtue of the sexual assault itself. The Court lacked the authority to expand the Act beyond the area in which it is intended to operate and found that the Trial Court erred in issuing the protective order in question.

Stamus v. Dutcavich, 938 A.2d. 1098 (Pa.Super. 2007) – The Superior Court vacated the order of the Trial Court dismissing a PFA order and remanded the case for further proceedings by the Trial Court. The Superior Court held that the trial court erred in issuing a Rule to Show Cause rather than scheduling a contempt hearing based on the alleged abuser’s possession of firearms within ten days of the date of the complaint for indirect criminal contempt filed by the police. The Superior Court held that the Trial Court further erred in dismissing the PFA order when neither the alleged victim nor alleged abuser moved for amendment or dismissal of the order.

Paternity

Parties and Procedure

Lebanon County Children & Youth Services v. Wagner, 948 A.2d 871 (Pa.Super. 2008) – Order denying alleged Father’s Motion to Stay genetic testing without a hearing on the issue of estoppel, vacated and remanded. “In any child support matter in which paternity is denied on the grounds of estoppel, the Trial Court must conduct a hearing on the issue of estoppel…,” Freedman v. McCandless, 654 A.2d 529. The Court found that a party agency with custody of a child may be estopped from asserting paternity against a party under the doctrine of equitable estoppel to the same extent of a parent, relying on the Court’s holding in Matter of Green, 650 A.2d 1072.

Wieland v. Wieland v. Dillon, 948 A.2d 863 (Pa.Super. 2008) – The Superior Court affirmed the Trial Court’s order obligating biological Father and former Husband of Mother to pay child support for a child which DNA testing determined was his biological child, though former boyfriend believed the child to be his. The former boyfriend appealed on the basis that his status as a parental figure and the child’s “father” should be protected by the doctrine of paternity by estoppel because he held the child out as his own. The Superior Court affirmed the Trial Court’s order in the support matter but, in doing so, stated that the Court was offering no opinion as to future custody or visitation litigation.

In re Z.S.W., 946 A.2d 726 (Pa.Super. 2008) – Order denying the petition to involuntary terminate the biological Father’s rights was reversed where he failed to make an effort as parent for more than six months after knowing he may have been the father and had previously indicated he did not want custody of the child, despite the fact that the results of the paternity test were not made known to him by the Court until aggravated circumstances were found.

Presumption of Paternity

Vargo v. Schwartz, 940 A.2d 459 (Pa.Super. 2007) – The Superior Court affirmed the Trial Court’s determination that the presumption of paternity and paternity by estoppel did not apply, and that Father was obligated to pay child support for two children he fathered with mother. Father’s parentage of two children was determined by a paternity test and the trial court determined that Mother’s marriage to Husband was not intact, therefore the presumption of paternity did not apply. The Trial Court also concluded that paternity by estoppel did not apply because Husband only held the girls out as his own for a short time until Mother told him that he was not the children’s biological father.

Res Judicata/Estoppel

B.K.B v. J.G.K, 954 A.2d 630 (Pa.Super. 2008) – Alleged biological Father’s petition to intervene seeking partial custody and alleging that DNA testing had revealed he was the father, denied. On appeal alleged biological Father was estopped from questioning the paternity of a child born during the marriage of the child’s Mother and former Husband and from using a charge of fraud against the child’s Mother in the absence of any evidence of fraud engaged in by Mother. The Court found that the presumption of paternity was inapplicable to the former Husband of Mother.

Glover v. Severino, 946 A.2d 710 (Pa.Super. 2008) – The Superior Court reversed the order of the Trial Court which denied putative Father’s request to challenge paternity and remanded the matter for hearing. The Superior Court concluded that Mother committed fraud by omission and therefore paternity by estoppel did not apply to putative Father who, through a private DNA test which was later confirmed by a court ordered DNA test, determined that he was not the child’s father.

Lebanon County Children & Youth Services v. Wagner, 948 A.2d 871 (Pa.Super. 2008) – The Superior Court vacated an order requiring alleged Father to submit to DNA testing to determine if he was the father of a child with Mother and remanded the matter for further hearing by the Trial Court on the issue of paternity by estoppel because Mother had held out her Husband, whom she was married to at the time of the child’s birth and who was named on the birth certificate, as the father of the child, and Husband acted as the child’s father.

Conroy v. Rosenwald, 940 A.2d 409 (Pa.Super. 2007) – The Superior Court affirmed the order of the Trial Court which partially estopped Mother from receiving child support from Father prior to his admission of paternity and DNA testing, wherein it was determined that he was unequivocally the child’s father. Mother was having sexual relations with another man and Father at the time the child was conceived. Mother and Father both believed Father to be infertile and Mother concluded that the other man was the child’s father. The other man subsequently denied paternity of the child and the Trial
Court refused to apply paternity by estoppel because the child had a right to support and kinship from Father. The Trial Court applied partial estoppel and only permitted child support to be obtained from Father after his admission of paternity and DNA testing.

Property Division

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

Prol v. Prol, 935 A.2d 547 (Pa.Super. 2007) – The Order directing the forfeiture of Wife’s interest in Husband’s pension due to her failure to timely file a Qualified Domestic Relations Order was reversed by the Superior Court finding no evidence that Wife willfully or in bad faith disobeyed the Court’s orders or any proof of prejudice to Husband as a result of any delay.

Smith v. Smith, 595 Pa. 80, 938 A.2d 246 (Pa.Super. 2007) – The Superior Court reversed and remanded the Trial Court’s finding that Husband’s increased pension benefits, obtained through a post-separation election of a legislatively created new class of benefits, was marital property subject to equitable distribution. The Supreme Court reversed the judgment of the Superior Court holding that the allocation of a defined benefit pension between marital and non-marital portions should only be done by way of a coverature fraction. As a result, the Court found that the portion of the post-separation enhancement derived from employment after Husband’s election of new class attributable to an increase in payroll deduction was non-marital property, but that the value of the pension that would have resulted naturally from Husband’s continued employment was marital property. Finally, the Superior Court classified any post-separation enhancement accrued prior to the effective date of Husband’s election as marital property as well.

Factors -GENERALLY

Taper v. Taper, 939 A.2d 969 (Pa.Super. 2007) – The parties signed Affidavits of Consent one year after Husband filed the divorce complaint. Wife filed exceptions to the Master’s report and argument was scheduled. Husband died prior to argument. The Trial Court denied Wife’s exceptions and ultimately entered a divorce decree granting a posthumous divorce to Husband on the grounds of mutual consent. While the Superior Court determined that the Trial Court did not abuse its discretion in adopting the Master’s report under Pa. C.S.A. §3502, it vacated the divorce decree finding no statutory authority which allows for the entry of a posthumous divorce.

Enforcement -GENERALLY

Annechino v. Joire, 946 A.2d 121 (Pa.Super. 2008) – After signing a Property Settlement Agreement, the parties entered into a final divorce decree which did not merge or incorporate their agreement. Thereafter, Husband filed a Petition for Special Relief for enforcement of the agreement. The Superior Court held that under 23 Pa.C.S.A. §3105, parties to an agreement concerning matters within the jurisdiction of the court under the Divorce Code may enforce their agreement using remedies set forth in the Code regardless of whether a martial settlement agreement has been merged or incorporated into a decree, unless otherwise stated.

Woods v. Cirdcierski, 937 A.2d 1103 (Pa.Super. 2007) – Despite the presence of counsel, Husband chose not to file exceptions to the Master’s report believing he and Wife were in the process of reconciling. Thereafter, Husband filed a Petition for Appeal Nunc Pro Tunc claiming Wife’s fraudulent representations concerning their marital property prevented him from filing timely exceptions. The Superior Court affirmed the denial of Husband’s petition reasoning that Husband failed to produce any sufficient evidence of fraud.

Enforcement -CONTEMPT

Bold v. Bold, 939 A.2d 892 (Pa.Super. 2007) – Husband filed a Petition for Contempt of a stipulation prohibiting either party from writing personal expenses from their joint business account, after Wife withdrew $45,000, in three separate transactions, to cover college expenses for the parties’ daughter, which Wife argued was merely repayment of a loan she had made previously to the company with her own personal funds. The Trial Court found only the third transaction to be in violation of the stipulation and held Wife in contempt. The Superior Court reversed, relying on Marian Shop Inc. v. Baird, 670 A.2d 671, holding that the stipulation must clearly and specifically address the behavior in order for a party be held in contempt.