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Divorce Law in the Fifty States – Pennsylvania – 8/1/08 – 7/31/09

Adoption

Procedural Issues

Laird v. Department of Public Welfare, 972 A.2d 596 (Pa.Cmwlth. 2009) – Adoptive parents appealed final orders of the Secretary of the Department of Public Welfare denying adoption subsidies for their special needs children on the basis that the children were ineligible for subsidy under Section 772 of the Adoption Opportunities Act. The Commonwealth Court held that the failure of a private adoptive agency, licensed by DPW and thus, an agent of the State, to advise parents of the availability of adoption assistance was an extenuating circumstance which existed to justify granting adoption assistance after the final adoption decree. The extenuating circumstance exception was found only to cases involving federal subsidies. Adoption subsidies were awarded to Petitioners’ children retroactive and effective as of the date of the final adoption decrees.

In re I.J., 972 A.2d 5 (Pa.Super. 2009) – Appeal of the Department of Human Services to the denial of their Petition to Change the Goal for a dependent child from reunification to adoption under 23 Pa.C.S. 2511 as improper on the basis that parents had remedied, or made significant strides toward remedying, the conditions that led to the removal of the child. The Superior Court, reversed the Order finding that the Trial Court erred in failing to conduct a proper statutory analysis pursuant to 23 Pa.C.S. 2511(8)(a) as the parents had not remedied the conditions which led to placement of the child. The Superior Court remanded the matter to the Trial Court to determine whether additional evidence is needed to conduct a “best interests” analysis under the statute.

Alimony (Maintenance)

Rehabilitative Alimony

Lambing v. Lambing, 981 A.2d 330 (Table) Pa.Super. 2009 (June 9, 2009) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions without Published Opinions.”

Fasig v. Fasig, 981 A.2d 940 (Table) Pa.Super. 2009 (July 29, 2009) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions without Published Opinions.”

Assisted Conception

In In re I.L.P. and I.L.P., 965 A.2d 251 (PA Super 2009) – Joint appeal of natural Father, gestational carrier, and her husband, of a trial court order which failed to specify that gestational carrier and her husband did not have any parental rights to children. Appellate court held that trial court retained jurisdiction over the matter and should issue a revised order upon joint application of natural Father, gestational carrier and her husband that specified that the gestational carrier and her husband did not have any parental rights to the children so that the Order would conform to Taiwanese law and the children could obtain joint citizenship.

Attorneys

Ethical Issues

In the Interest of C.W., Appeal of Anthony R. Tunnell, Esquire, 960 A.2d 458 (Pa.Super. 2008) – Father’s court appointed attorney’s failure to file a brief which cited to case law and the record, in support of Father’s position, in a termination of parental rights proceeding did not constitute criminal contempt.

Fees

Biese v. Biese, 2009 PA Super 142 (July 21, 2009) – Counsel fees and costs are appropriate to level the burden of litigation for a dependent spouse who obtains expert valuations of marital property for an equitable distribution hearing. The dependent spouse must establish a need for the counsel fees and costs awarded. The Court will look at the parties’ ability to pay, the value of the expert services performed, and the cost for the legal services.

Krebs v. Krebs, 975 A.2d 1178 (Pa.Super. 2009) – Pursuant to 23 PaC.S.A 4351 attorney’s fees are properly awarded to successful obligee in a support matter. Husband’s unreasonable and obstreperous conduct in fraudulently concealing income over a six year period to avoid increased support obligation warranted award of full amount of attorney’s fees. The Court awarded fess pursuant to an affidavit of counsel of $15,408.83 rather than $5,000 awarded by trial court.

Tessaro v. Tessaro, 965 A.2d 313 (Table) Pa.Super. 2008 (December 1, 2008) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions without Published Opinions.”

Child Abuse

Criminal

C.S. v. Department of Public Welfare, 972 A.2d 1254 (Pa.Cmwlth. 2009) – Father seeking to expunge child abuse report was entitled to hearing as there was not substantial evidence that he was the perpetrator of abuse. Court did not make a specific finding as to who was the perpetrator of abuse. Denial of expungement of an indicated report is improper when there is proof by substantial evidence that an alleged perpetrator abused a minor.
S.T. v. Department of Public Welfare, 962 A.2d 679 (Pa.Super. 2008) – Mother was the perpetrator of abuse in boyfriend’s beating of son because she and boyfriend agreed that son would be disciplined with a belt for a bad note in school. Upon hearing that the child was crying from the beating, Mother entered the room to beat child for crying as she believed that it was not appropriate to cry during a beating. Photographic evidence of injuries showing extensive bruising constituted substantial evidence that the child suffered serious physical injury. Evidence supports indicated report of child abuse when parent left room though she knew the child was being struck with belt, and upon hearing his cries, made no attempt to determine if punishment was appropriate; since such acts and omissions are a gross deviation from standard of care of reasonable person, no error in concluding that she was the perpetrator of abuse.
C.J. v. Department of Public Welfare, 960 A.2d 494 (Pa.Super. 2008) – Minor child was adjudicated dependent and findings of abuse were entered against her stepfather. The Office of Youth and Families also filed a founded report of child abuse against stepfather. Stepfather appealed the report and OYS dismissed his appeal on res judicata grounds. Stepfather was not required to have a full and fair hearing on the OYS report because he had been given a chance to defend against the allegations of abuse at the dependency proceedings. OYS may rely on results of dependency proceedings.

Child in Need of Care

B.T.W. ex rel. T.L. v. P.J.L., 956 A.2d 1014 (Pa.Super. 2008) – Pennsylvania had subject matter jurisdiction over a Maryland resident and child subject of Protection from Abuse Order through the Uniform Child Custody Jurisdiction and Enforcement Act despite the fact that the abuse occurred in Maryland, jurisdiction was pursuant to 23 Pa.C.S.A. 5422(a) which states that the court which made an initial custody determination continues to have exclusive continuing jurisdiction until the child’s connection with the Commonwealth no longer exists.

In re R.P., 957 A.2d 1205 (Pa.Super 2008) – Adjudication of dependency with aggravated circumstances and no kinship reunification plan was appropriate for two adopted children from Russia, one of whom was so severely abused by Father that he will have permanent injuries. Mother was found to be a perpetrator of abuse by omission because she was aware of bruises child received while in Father’s care.

Termination of Parental Rights

In re K.K.R.-S., 958 A.2d 529 (Pa.Super. 2008) – Biological Mother of three children timely appealed Decrees of Termination. The standard of review for a decree terminating parental rights is whether the decision of the trial court is supported by competent evidence. Mother appealed the termination on the grounds that it did not serve the children’s emotional needs and welfare of the children 23 Pa.CSA 2511. She claimed that a beneficial parent child bond existed because CYS could not prove the children had negative feelings for her. The termination was affirmed on the grounds that a parent child relationship has two components and the children’s lack of negative affection for Mother was not enough to prove a bond.

In the Int. of J.S., 2009 PA Super 141 (July 21, 2009) – Although the permanency goal was changed from adoption to subsidized permanent legal custodianship with foster parents, the foster parents were found to lack the right to intervene in ongoing dependency proceedings as they did not have any legal status with regard to the child and placement of child with them was not guaranteed. Case law has clearly defined three classes of people with standing (1) the parents of the juvenile whose dependency status is at issue, (2) the legal custodian of the juvenile whose dependency status is at issue, or (3) the person whose care and control of the juvenile is in question.

In re Adoption of C.L.G., 956 A.2d 999 (Pa.Super. 2008) – Incarcerated mother appealed termination of her parental rights on the grounds that the trial court improperly terminated her parental rights because she was incarcerated. The Superior Court held the trial court properly terminated mother’s parental rights because her incarceration was a result of her failure to remedy her drug issues as part of her Children Youth and Family Services determined family service plan.

In re R.P., 956 A.2d 449 (Pa.Super. 2008) – Mother and Father separately appealed placement goals of adoption in a situation where one of the parties’ two children was hospitalized with severe injuries due to Shaken Baby Syndrome and Battered Baby Syndrome. The parties’ unsuccessfully argued that Mother’s appeal of adjudication of dependency should have stayed any permanency hearings. Mother’s appeal did not stop the proceedings as it was found that the children’s safety was potentially at risk if left in unsafe conditions during appeal.

Reasons for Termination

In re D.P., 972 A.2d 1221 (Pa.Super. 2009) – Mother, whose three children were deemed dependent and were placed in agency care on at least five occasions, appealed change in agency goal from reunification to adoption. Evidence was sufficient to support that goal; change was in the best interest of the children. Children’s wishes to return home to Mother were not given significant weight as they were coached by Mother and their primary expressed reason to return home was the freedom they enjoyed there.

Child Custody and Visitation

Jurisdiction – UCCJA/UCCJEA/PKPA

Bouzos-Reilly v. Reilly, 2009 PA Super 165 (Aug. 27, 2009) – Pennsylvania trial court was the appropriate court to conduct evidentiary hearing into whether Pennsylvania had jurisdiction over a child custody matter where the child was born in New York and moved with Mother to Pennsylvania approximately three months after birth. The relevant inquiry to determine jurisdiction pursuant to the UCCJEA which both states had adopted, was whether the move to Pennsylvania was temporary or permanent and which state had more significant contacts with the child.

Cramer v. Zgela, 969 A.2d 621 (Pa.Super 2009) – Father convicted of first degree murder and serving a life term filed a Petition for Visitation. Pursuant to 23 Pa. C.S.A 5303(b) Father was entitled to undergo an evaluation and treatment before the court made a determination on custody. The court was required to look first to the Department of Corrections to provide the treatment and counseling.

Domestic Violence or Abuse

Kaufer v. Kaufer, 981 A.2d 945 (Table) Pa.Super. 2009 (July 14, 2009) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions Without Published Opinions.”

Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008) – Minimal degree of cooperation between parents was possible so as to support award of shared legal custody. The parties resolved physical custody through their attorneys and extensive negotiation. Trial Court did not improperly delegate its authority by appointing a parenting coordinator because both parties agreed to let the Trial Court determine the issue. The Trial Court created a comprehensive custody order and permitted the parenting coordinator to determine temporary custody issues not core custody issues, and the parenting coordinator’s decisions were appealable de novo to the Trial Court.

Staub v Staub, 2008 PA Super 251 (Pa.Super 2008) – On a case of first impression the Superior Court declined to adopt a bright line rule or a presumption in favor of public schools when parents who share legal custody cannot decide whether to home school children or send them to public school. A case-by-case analysis using a best interest standard must be used as with any issue that requires joint decision making when parents disagree and they share legal custody. The Children were ultimately not required to attend public school as they were functioning at an above average academic level through home schooling and were socially well adapted.

Grandparents

In re D.S., 2009 PA Super 144 (July 23, 2009) – Grandparent who has not filed a custody petition lacks standing to participate in the dependency proceedings since her care and control were not an issue. Since 23 Pa. C.S. 6344 contains no time limit, a person may not be a foster parent if anyone living in the prospective foster parent’s home had ever been convicted of aggravated assault.

Modification of Custody

Gates v. Gates, 967 A.2d 1024 (Pa.Super. 2009) – Mother who previously released mental health records for a custody evaluation was not required to release mental health records related to an inpatient hospital stay as they violated her statutory right to privacy. Contempt order entered against mother for failing to disclose her mental health records was vacated as she would have suffered irretrievable injustice when the Superior Court determined the privilege applied.

Relocation

Gianvito v. Gianvito, 975 A.2d 1164 (Pa.Super. 2009) – At the time of custody hearing, Father, rather than mother, was the child’s primary caretaker for purposes of custody modification. Order vesting primary physical custody of the six-year-old child to Father affirmed since at the time of the custody trial, the quality of time spent by Father and the impressive shoulder of parental responsibility supports conclusion that he is primary caretaker; Father was substantially involved in the child’s life from infancy and has placed the child in a position of preeminent importance in his life, willingly bearing difficulties arising from that decision, including crafting his work schedule to maximize time with the child and purchasing a home to be closer to the child in her current residence with mother. Child’s preference was not given significant weight as she did not fully understand the proceedings and the effect they would have on her future.

Child Support

In re Estate of Johnson

, 970 A.2d 433 (Pa.Super. 2009) – In Mother’s action against Father’s estate, the Pennsylvania Superior Court held that a deceased Father’s obligation to pay child support did not end with his death where language terminating this obligation upon his death was not included in the Marital Dissolution Agreement (MDA). Based on their opinion in Children and Youth Servs. Of Allegheny County v. Chorgo, 491 A.2d 1374 (1985), the Court gave credit to Father’s estate for the Social Security benefits paid to the children as a result of his death, since the rebuttable presumption supporting entitlement had not been rebutted. There is no precedent, however, that gives guidance as to what sort of evidence might rebut the presumption. The Court awarded Mother reimbursement of the children’s reasonable medical expenses under the MDA but found that Father’s estate was not obligated to contribute towards the children’s college expenses. Mother was denied attorney’s fees. Both children reached the age of majority subsequent to the filing of this action.

Murphy v. McDermott

, 979 A.2d 373 (Pa.Super. 2009) – Trial Court’s income calculations for 2008 were vacated as they were based on Father’s 2007 income, including a one-time stock option exercised that year as income in 2008. The Superior Court remanded to re-consider the Trial Court’s failure to account for the withdrawal penalty by including the employer gross contribution to Father’s 401 (k) and stock account, and agreed with Father that his income from perquisites should be reduced by the amount which Father reimbursed his company for personal use of an automobile. Award of private school tuition not abuse of discretion when private school attendance was consistent with child and parent station in life.

Income in Excess of Guidelines

Rich v. Rich, 967 A.2d 400 (Pa.Super. 2009) – Father earned a significant salary as the CEO of two coal companies, inter alia, and Mother was a stay-at-home mother during the marriage. Under an interim support order, Father was obligated to pay $32,490 per month. After a two year delay, and Father’s continual monthly payments, the final Order adjusted Father’s obligation to $15,791 per month, resulting in an overpayment of $498,903.02. To reduce the overpayment, the Court reduced Father’s obligation to $11,791.67 per month and to allow a credit of $4,000. The Trial Court attributed all but 10 percent of Mother’s expenses to the children and failed to reduce Father’s obligation after the eldest child was emancipated. Father appealed and Mother cross-appealed the same order. The Superior Court affirmed in part and vacated and remand in part, finding that the Trial Court did not err in its award of support to Mother, despite Mother’s failure to provide an itemization of her expenses. The Court relied on the rationale in Colonna v. Colonna in holding that equal amenities at both parents’ houses was not the standard for child support in high income cases in Pennsylvania, pointing out that appropriate amenities existed at Mother’s residence. The Superior Court further affirmed the Trial Court’s award of a credit against Father’s obligation in light of the substantial overpayment under a “best interests” analysis, despite the fact that a substantial balance would remain after the emancipation of the parties’ last child. The Superior Court remanded this matter on the issue of the eldest child’s emancipation, ordering recalculation or clarification of the reasons the Trial Court refused to amend the Order without evidence regarding the effect of such emancipation on Mother’s expenses for the remaining three children. The Court found no justification to reduce Father’s obligation by a proportionate amount upon the emancipation of one of several children.
Private School Education – Child Support

Murphy v. McDermott, 979 A.2d 373 (Pa.Super. 2009) – Father’s appeal of Trial Court’s award of private school tuition. The Superior Court upheld this decision finding that the two-pronged test set forth in Gibbons v. Kugle, 908 A.2d 916 (Pa.Super. 2006), was met by way of the fact that the child would benefit from a private education and that private school attendance was consistent with the standard of living established prior to separation.

Incarceration — Child Support

Plunkard v. McConnell, 962 A.2d 1227 (Pa.Super. 2008) – Incarcerated Father petitioned under amended Pa.R.C.P. 1910.19(f) seeking termination of his child support obligation and remittitur of pending arrears for the entire effective period of the award based on the fact that he lacked income and assets and that he was unable to pay the obligation for the foreseeable future. The Trial Court granted Father’s petition, remitting all pending arrears. The Superior Court held that Father’s obligation was properly terminated for the duration of his imprisonment, but that Father was only entitled to remittitur of those arrears that arose during the period of his incarceration itself under 23 Pa.C.S.A. § 4352(e) and due to the 2006 amendment to Pa.R.C.P. 1910.19(f).

Child Support from Institutionalized Parent

R.C. v. J.S., 957 A.2d 759 (Pa.Super. 2008) – The Superior Court reversed the ruling of the Trial Court, finding that temporary in-patient institutionalization of a minor child did not constitute a change in circumstances sufficient to warrant suspension of Father’s child support obligation. The Superior Court held that because the child’s institutionalization was temporary in nature, and that mother still provided for the child, the support order should not be suspended. The Superior Court further found err in the Trial Court’s holding that Mother was not “caring” for the child and thus, did not have standing to contest Father’s Petition for Modification.

Post-Majority Support Obligations

Style v. Shaub, 955 A.2d 403 (Pa.Super. 2008) – As a matter of first impression, The Superior Court reversed the ruling of the Trial Court, in part, finding that Mother was not equitably estopped from raising a claim for post-majority support when the original support order had previously been terminated pursuant to Rule 1910.19(e). In order to find equitable estoppel, a party must demonstrate detrimental reliance. The Superior Court later affirmed the Trial Court’s decision to dismiss Mother’s claim for post-majority support as the presumption that a child support obligation ends upon the child reaching majority had not been rebutted.

Contempt/Statute of Limitations Child Support

Wilson v Cox, 972 A.2d 571 (Table) Pa.Super. 2009 (March 18, 2009) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions Without Published Opinions.”

Dissolving the Marital Relationship

Grounds for Divorce

Gerow v. Gerow, 962 A.2d 1206 (Pa.Super 2008) – Following Husband’s death, during the pendency of the divorce action and prior to grounds being established, the executrix of Husband’s estate motioned to Substitute Personal Representative and to Determine Economic Rights of the Parties in order to effectuate Husband’s wishes as stated in his Will. The Trial Court denied the motion under 3323(d)(1) of the Divorce Code, 23 Pa.C.S.A. § 3323(d.1). Executrix appealed. Superior Court held that the Trial Court had no authority to hold a hearing to determine whether grounds for divorce existed after Husband died and properly denied the motion.

Domestic Violence

Criminal Laws

Com v. Moore, 978 A.2d 988 (Pa.Super. 2009) – Defendant who raises ineffective Assistance of Counsel claims after being found in contempt of a Protection From Abuse Order and sentenced to imprisonment pursuant to 23 Pa.C.S. 6114 is entitled to an evidentiary hearing on ineffectiveness claims such that record is adequate to assess claims on direct appeal despite initial application for post sentence relief being filed after the ten day limit proscribed in PA Rule of Civil Procedure 720 (A)(1).

Civil Actions and Non-Criminal Procedures

Thompson v. Thompson, 2008 PA Super 285 (Dec. 16, 2008) – Father appealed entry of Protection From Abuse Order (PFA) entered for the protection of his children on the grounds that none of his children testified that they had a reasonable fear of bodily injury. The court found that the evidence supports entry of PFA as the children testified that they were afraid of Father and that he abused drugs and alcohol and that he verbally and physically abused them.

Buchhalter v. Buchhalter, 959 A.2d 1260 (Pa.Super. 2008) – Evidence of alleged prior abuse resolved through a mutual consent order was relevant in current proceeding for Protection From Abuse Order. As a matter of law the Trial Court erred in not allowing said testimony. Credible evidence of current abuse was not required before the court may consider evidence of prior abuse. Facts concerning the prior alleged abuse were relevant to alleged victim’s fear in the current petition.

Mescanti v. Mescanti, 956 A.2d 1017 (Pa.Super. 2008) – Despite the fact that there was no testimony of Husband cocking a gun on the night of the incident, a Protection From Abuse Order was still warranted based upon Husband’s course of conduct, which included cocking a gun on several past instances, placing Wife in fear of bodily injury.

Marriage

Wetzel v Heiney, 981 A.2d 333 (Table) 2009 (June 11, 2009) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions Without Published Opinions.”

Paternity

R.W.E. v. A.B.K., 961 A.2d 161 (Pa.Super. 2008) – Natural Father had standing to challenge putative Father’s acknowledgment of paternity as there is no statutory limitation on challenges to acknowledgment of paternity. Mother and putative Father committed a fraud against natural Father by agreeing that putative Father would raise the child as his own and would not question paternity, giving the court grounds to rescind putative Father’s acknowledgment of paternity.

Ellison v. Lopez, 959 A.2d 395 (Pa.Super. 2008) – At the time putative Father stipulated to paternity, he was aware of Mother’s sexual relationship with another man close to conception. After beginning to question paternity when child was two, putative Father waited two years to bring this action because he was afraid of the result. The fact that mother told putative Father that he was child’s Father did not rise to the level of fraud. Therefore, putative Father was estopped from denying paternity.

Property Division

Frantz v. Frantz, 972 A.2d 525 (Pa.Super. 2009) – Superior Court affirmed the Trial Court’s holding that realty awarded to Husband in the divorce action was not subject to an attachment by Wife’s attorney, who obtained a judgment lien against Wife for unpaid legal fees prior to the conveyance of the property to Husband. The Court found that the property was held in custodia legis due to the divorce proceedings and was not subject to attachment by lien while under the Court’s jurisdiction.

Lee v. Lee, 978 A.2d 380 (Pa.Super. 2009) – Wife appealed from the equitable distribution decree entered by the Court of Common Pleas awarding Wife 65% and Husband 35% of the marital property, and granting Husband a rental credit for a twenty-five month separation period. The Superior court held, inter alia, that Husband was not entitled to a rental credit for the time that he was excluded from residence by way of a Protection From Abuse Order. Equity prohibits a spouse from receiving monetary credit from the other spouse for the time of their exclusion from residence under a PFA order when such order was entered on the basis of misbehavior of that spouse.

In re estate of Saures, 971 A.2d 1265 (Pa.Super. 2009) – The Superior Court affirmed the Trial Court’s decision to grant the petition of the Administrator of deceased Husband’s estate and ordered Wife to surrender all proceeds she received as beneficiary on his life insurance policy subsequent to their divorce. Husband’s policy was subject to ERISA. On appeal Wife argued that ERISA pre-empted 20 Pa.C.S.A. § 6111.2 (Pennsylvania Beneficiary Re-Designation). The Superior Court found that § 6111.2 has no effect on the administration of ERISA plans and establishes a basis for resolution between claimants which does not burden plan administrators.

Kennedy v. Kennedy, 129 S.Ct. 865 (2009) – The U.S. Supreme Court held that the Plan Administrator of Husband’s ERISA-qualified pension plan properly disregarded the divorce settlement waiver of Wife’s interest in the ERISA pension plan, as it was contrary to the beneficiary designation submitted by Husband to the plan. The plan documents alone should control. Upon Husband’s death, Wife was entitled to receive the benefits of Husband’s pension.

Wiggins v Wiggins, 968 A.2d 804 (Table) Pa.Super. 2008 (December 12, 2008) – The decision of the Court is referenced in the Atlantic Reporter in a table captioned “Superior Court of Pennsylvania Decisions Without Published Opinions.”

Biese v. Biese, 2009 PA Super 142 (July 21, 2009) – When determining the increase in value of non-marital property marital residence, the court should use the lesser of the value at the date of separation and the value at the time of the Master’s hearing. Assigning the entire credit card debt to one party was found not to be an error though the parties were treated equally due to the relatively equal contributions each made to the marital estate.