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Divorce Law in the Fifty States – Pennsylvania – 2013-2014

By: Lindsay C. Hanifan, Esquire

Adoption

In re: Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013). Even where child is of an age at which he would not have been able to communicate with counsel or a guardian ad litem, it was reversible error for the trial court to fail to appoint counsel or a guardian ad litem in termination of parental rights case that was contested by birth father. Birth father did not waive right to raise issue of appointment of counsel or guardian ad litem on appeal by failing to raise the issue with the trial court, as it is the right of the child to have an independent advocate. Although birth mother and adoptive couple agreed to venue in a county in which none of the parties resided and no agency is involved, because birth father filed preliminary objections to venue, it was improper for trial court to dismiss such preliminary objections.

Agreements

Mazurek v. Russell, 96 A.3d 372 (Pa. Super. 2014). Where father provided several reasonable explanations for refusing to pay for son’s college education, he was not acting in violation of the parties’ property settlement agreement. Such explanations included son’s long-term estrangement from father, son’s lackluster educational performance in high school, selected college’s high tuition costs, and father’s exclusion from son’s college selection process. Because the terms of the property settlement agreement were ambiguous, it was proper for the trial court to consider father’s testimony as parol evidence.

Child Abuse

G.V. v. D.P.W., 91 A.3d 667 (Pa. 2014). Although there is a potential risk that listing name and other information of perpetrator of child abuse on statewide Childline Registry would be discovered by groups or individuals not specifically authorized to receive such information, the state has legitimate interest in preventing child abuse and protecting abused children, and that interest is furthered by the ChildLine Registry. Therefore, the legislatively established substantial evidence standard should be used when determining whether there was enough evidence of child abuse to maintain information from indicated report on the ChildLine Registry, or whether such indicated report should be expunged. It was improper for the Commonwealth Court to use a clear and convincing standard.

J.M. v. D.P.W., 94 A.3d 1095 (Pa. Cmwlth. 2014). Where it is unclear from the record whether alleged perpetrator of child abuse, who did not appear for dependency hearing, had proper notice of said proceeding, and where attorney present at dependency proceeding represented wife of alleged perpetrator as opposed to alleged perpetrator himself, it was improper for the Bureau of Hearings and Appeals to deny alleged perpetrator’s appeal. If alleged perpetrator did not have reasonable notice and opportunity to be heard at dependency proceeding, the adjudication cannot stand as basis for founded report of child abuse and must be vacated.

Termination of Parental Rights

In re: D.C.D., 91 A.3d 173 (Pa. Super. 2014). Where birth father was incarcerated, but made repeated efforts to have contact with child, it was improper for trial court to grant the Petition for Involuntary Termination of Parental Rights filed by Children and Youth Services. Although child had been in foster care for at least 15 out of the previous 22 months, the requirement of Children and Youth Services to file such Petition did not apply, because Children and Youth Services had not made reasonable efforts to reunify father and child.

In re: A.D., 93 A.3d 888 (Pa. Super. 2014). In determining whether a father is incapable of providing essential parental care, control or subsistence, such that grounds for involuntary termination of parental rights are present, the existence of no-contact order between father and children that was put into place due to father’s sexual abuse of children is dispositive. A child’s need for parental care and stability cannot be put on hold during long term no-contact order. Therefore, it was proper to terminate father’s parental rights.

Custody

S.K.C. V J.L.C., 94 A.3d 402 (Pa. Super. 2014). The parties commenced a divorce action in Pennsylvania. During the divorce proceedings, the trial court entered an agreed upon custody order which grants primary physical custody to father, who resided outside of the Commonwealth. Mother subsequently filed to modify the parties’ agreed upon custody order. Father filed a motion and asked the trial court to relinquish jurisdiction. The Court of Common Pleas denied father’s motion. The Superior Court stated the question of whether the trial court should retain subject matter jurisdiction was subject to de novo review. The trial court must consider several factors to determine the child has a substantial connection to the Commonwealth at the time mother filed her petition to modify custody. Ultimately, the trial court did maintain subject matter jurisdiction and acted within its discretion in denying father’s petition.

D.G. v. D.B., 91 A.3d 706 (Pa. Super. 2014). Where grandmother periodically provided mother and child with a place to live, food, and transportation, but grandmother helped mother apply for welfare so that she and child could live on their own, grandmother did not stand in loco parentis to child. Because grandmother’s actions were more similar to a babysitter or caretaker than a parent, it was appropriate for trial court to deny grandmother’s complaint for partial custody for lack of standing under 23 Pa.C.S.A. §5324(2). However, trial court should have assessed whether grandmother had standing as a grandparent under 23 Pa.C.S.A. §5324(3)(iii)(B),due to mother’s alleged neglect or incapacity that would put child substantially at risk.

M.O. V. J.T.R., 85 A.3d 1058 (Pa. Super. 1058). Where the parties resolved all but one small issue prior to trial on father’s petition to modify custody, it was not error for the trial court to fail to delineate the reasons for its decision or address all sixteen of the statutory custody factors found at 23 Pa.C.S.A. §5328. The only issue that was not resolved by agreement was whether father would be required to take off from work during three of his custodial weeks over the summer. Because the decision on that issue did not require the court to modify an award of custody, the court was not required to delineate its reasons or address the sixteen statutory custody factors.

A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014). In granting mother’s petition to relocate with parties’ three children from Pennsylvania to New Jersey, court ordered a change in the physical custody arrangement, by reducing father’s custodial time. Therefore, in addition to addressing the ten relocation factors found at 23 Pa.C.S.A. §5337(a), court was required to apply the sixteen custody factors found at 23 Pa.C.S.A. §5328. Trial court was also required to articulate an independent and thoughtful analysis of the best interests of the children, rather than simply adopting the post-trial brief of mother as its order.

Dissolving the Marital Relationship

Tosi v. Kizis, 85 A.3d 585 (Pa. Super. 2014). Husband died after grounds for divorce were established but prior to the entry of a divorce decree. Wife filed to discontinue the divorce action. The personal representative for husband’s estate appealed. The trial court denied husband’s petition to strike wife’s discontinuance of the divorce matter. The Superior Court found, when the defendant in a divorce action dies after grounds are established but prior to the entry of a divorce decree, the living spouse may choose to discontinue the divorce proceeding pursuant to Pa. R.C.P. 229(c).

Domestic Violence

Boykai v. Young, 83 A.3d 1043 (Pa. Super. 2014). Wife obtained a Protection from Abuse Order based upon her assertion that during the marriage, husband forced her to have sex with him and refused to provide support for wife or their minor child if she declined his advances. Husband appealed the Order claiming the trial court in erred in finding his actions constituted “abuse” under 23 Pa. C.S. §6101. The Superior Court held that exchanging sex for financial support was compulsion by psychological or intellectual force and affirmed the trial court’s ruling.

Marriage

Whitewood v. Wolf, 992 F.Supp.2d 410 (M.D.P.A. 2014). State statute defining marriage as “civil contract by which one man and one woman take each other for husband and wife,” 23 Pa.C.S. §1704, violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. As a statutory classification based on sexual orientation is quasi-suspect, the statute must pass intermediate scrutiny to be upheld. But the ban on same-sex marriage does not substantially relate to an important government interest. Therefore, same-sex couples may now marry in Pennsylvania, and marriages already entered into by same-sex couples in other states shall be recognized in Pennsylvania.

Paternity

T.E.B. v. C.A.B., 74 A.3d 170 (Pa. Super. 2013). Mother’s coworker, who was known by mother and her husband to be the father of mother’s youngest child, was not precluded from pursuing custodial rights with respect to the child even though he did not file a petition to intervene until one year after complaint for custody was filed by husband. Mother’s coworker had asserted his parental rights after the child was born, by accompanying mother to the child’s doctor’s appointment, informing mother that he wanted to be in the child’s life, and then by filing a complaint for partial custody. The only reason that the parental rights of mother’s coworker were not determined earlier was because husband filed preliminary objections to coworker’s complaint, and both he and mother and lied to the court.

R.K.J. v. S.P.K., 77 A.3d 33 (Pa. Super. 2013). Where trial court record indicated that father held himself out to be the father of child, lived with Child for six years and financially supported child, it was not error for the trial court to apply the doctrine of paternity by estoppel and deny Father’s Motions for Paternity Testing and to Join Child’s true biological father to the action for child support. In deciding whether to apply the doctrine of paternity by estoppels, the court is required to weigh factors that include both psychological and economic considerations.

Property Division

Yuhas v. Yuhas, 79 A.3d 700 (Pa. Super. 2013). Wife filed exceptions to the master’s report and recommendation which stated the disability insurance payments husband received post-separation were income but not martial property subject to equitable distribution. The trial court denied wife’s exceptions. The Superior Court affirmed that husband’s disability benefits received post-separation, which require proof of a continuing disability, were non-marital property.

Dean v. Dean, 98 A.3d 637 (Pa. Super. 2014). Husband filed exceptions to the master’s report which reduced the value of the marital residence by the cost of sale, gave wife credit for using her premarital assets towards purchasing the marital residence, and applied a coverture fraction to determine the marital value of the marital residence. The trial court denied husband’s exceptions. The Superior Court held the trial court did not abuse its discretion by affirming the master’s use of a coverture fraction in equitable distribution.

Kozel v. Kozel, 97 A.3d 767 (Pa. Super. 2014). Following equitable distribution, former wife filed a petition for special relief seeking a constructive trust in which she alleged former husband failed to disclose assets. Former husband filed a motion for summary judgment which was denied by the Court of Common Pleas. Former husband appealed. The Superior Court found former wife’s petition for special relief seeking a constructive trust was the sole and appropriate remedy available to her. In addition, the parties dispute as to whether former husband actually failed to disclose assets subject to equitable distribution precluded summary judgment.