Pennsylvania
Family
Lawyer
VOLUME 32 ISSUE NO. 1
IN THIS ISSUE
FROM THE CHAIR..............................1
March 2010
FROM THE CHAIR
By Jeffrey M. Williams, Esq.
jwilliams@williamshandlaw.com
EDITOR’S COLUMN ..........................3
An Interesting Day in Harrisburg
Case Notes
1. Campbell v. Walker ..............................5
2. Miller v. Miller ....................................7
3. Harcar v. Harcar..................................9
4. In Re: K.T.E.L. ..................................12
5. Mackay v. Mackay..............................14
6. DeBoer v. Slusser ..............................17
7. McMullen v. Kutz ..............................18
8. M.A.T. v. G.S.T. ..................................20
9. R.M.G., Jr. v. F.M.G............................22
10. Silver v. Pinsky ................................23
On Feb. 4, I testified before the
House Judiciary Committee’s Family
Law Sub-Committee. The hearing
was held on three bills (House Bill
1639, House Bill 463 and House Bill
418) all addressing proposed modifications to custody laws in the commonwealth. Overall, it was a great
experience and your PBAFLS team
(me and two former Section chairs,
Ned Hark and Mary Cushing
Doherty) made a presentation that
was critiqued by various members of
the House of Representatives as
well-organized, insightful and comprehensive.
ARTICLES AND COMMENTS:
Changes to Pa. Support Guidelines ......26
The Unified Family Court ....................28
Cash Flow for Support Purposes..........29
“The Taxing Side of Divorce” ..............35
Retirement Plan Participants’ Deaths ..38
The Effect of Islamic Family Law ........41
TECHNOLOGY CORNER ................53
LEGISLATIVE UPDATE ..................54
SECTION NEWS ................................56
MEETING PHOTOS ..........................58
ERIC TURNER AWARD
TO LEN DUBIN ..................................59
SIDEBAR..............................................60
Jeffrey M. Williams is the Chair of the
PBA Family Law Section and a
founding Partner of the Doylestown
firm of Williams & Hand, P.C., Past
Chair of the Bucks County Bar
Association Family Law Section and
a Fellow in the American Academy of
Matrimonial Lawyers and a
Diplomate in the American College of
Family Trial Lawyers.
House Bill
1639
All three
of us testified
to the Section’s
support of HB
1639. More
specifically,
yours truly tesJeffrey M. Williams, Esq. tified as to the
need for such
custody legislation. It codifies 16 factors to be considered by a jurist in
fashioning an award of custody. At
present, various factors relevant to a
custody matter are spread throughout case law. Factors that the judge
must consider include (1) which
party is more likely to permit frequent and continuing contact
between the child and the other
party; (2) domestic violence; (3) past
performance of parental duties; (4)
proximity of residences of parties;
(5) level of conflict between the parties; and (6) ability of the parties to
cooperate with each other regarding
child rearing decisions.
(continued on Page 2)
FROM THE CHAIR COLUMN
(continued from Page 1)
Some interesting issues surfaced during the preparation
for the hearing. For example, various domestic violence
groups believe that domestic violence should be the primary
factor when determining the primary physical custody of a
child/children.
The bill also includes specific advance notice of 60 days
relating to custody relocation matters. It sets forth 10 factors
to be considered by the trial court when determining whether
to grant a proposed relocation. The relocation section of the
legislation clearly places the burden of proof on the party
who seeks relocation to prove that relocation will serve the
best interest of the child/children.
HB 1639 further requires that a judge present detailed
findings to support any award of custody. These reasons can
be spread upon the record at the time of trial or, in the alternative, they can be disseminated via issuance of a written
opinion. HB 1639 requires the increased use of parenting
plans and allows the filing of a complaint in custody even
when the litigants continue to reside together.
House Bill 463
HB 463 proposes to amend The Pennsylvania Domestic
Relations Code by specifically defining joint physical custody in such a manner as to create a rebuttable presumption
in favor of equal physical custody. “An order for joint custody shall be awarded by the court unless the court finds that
joint custody is not in the best interest of the child. There
shall be a rebuttable presumption that an award of joint custody is in the best interest of the child.” Although the proposed legislation contains other changes, this “presumption
issue” is the most significant of the provisions of HB 463.
EDITOR-IN-CHIEF
David S. Pollock
CO-EDITORS
Harry M. Byrne Jr./Benjamin E.Orsatti
William L. Steiner/Jay A. Blechman
Founder/Former Editor-in-Chief
Jack A. Rounick
David L. Ladov/Lori K. Shemtob
Gerald L. Shoemaker Jr.
Former Editor-in-Chief
Hon. Emanuel A. Bertin
Former Associate Editors: Gary J. Friedlander, Caron P. Graff
Published by the Pennsylvania Bar Association in conjunction with the Family
Law Section as a service to the profession. Mailing Address: Pennsylvania Bar
Association, 100 South St., P.O. Box 186, Harrisburg, Pa. 17108. Telephone: 1800-932-0311 or (717) 238-6715.
From time to time, the Pennsylvania Family Lawyer will publish articles that it
receives for submission. The views expressed in those articles are solely those of
the authors of the articles and do not reflect the views or policies of the editors,
the Pennsylvania Family Lawyer, the Family Law Section or the Pennsylvania
Bar Association, and no endorsements of those views should be inferred therefrom.
©2010 by the Family Law Section of the Pennsylvania Bar Association.
2
Jeffrey Williams, Mary Cushing Doherty and Ned Hark at the
House Judiciary Committee’s Feb. 4 subcommittee hearing on
Pennsylvania’s child custody laws.
Ned Hark testified to the Section’s strident opposition
to a rebuttable presumption of joint physical custody. In fact,
all three of the PBAFLS chairs who testified spoke against
equal physical custody as a required starting point. Simply
viewed, there should be no presumption; a judge should
work from a clean slate in fashioning an award of physical
custody. Presumptions can be particularly problematic when
one considers different levels of involvement with the children prior to separation and the of children’s varying needs,
which are determined, in part, by their developmental stages.
House Bill 418
We also testified in opposition to HB 418, which proposes a constitutional amendment that would remove the
Pennsylvania Supreme Court’s primary authority to make
rules that control family court matters. The legislation is
based on the principle of “therapeutic justice,” which aims to
establish courts that are user-friendly, cost-efficient and time
conscious. The legislation contains a number of good concepts (e.g., one judge-one family; limiting protracted hearing
dates in complex matters; creation of a domestic relations
resource center to promulgate information about divorce,
separation, etc.). The major problem, however, is that
empowerment of the Legislature to run the court system
clearly violates the basic tenet of the separation of powers.
Final Thoughts
The February hearing was the culmination of over 10
years of hard work by various members of our Family Law
Section. Well in advance of the hearing, testimonial summaries were presented to the Sub-Committee. The testimony
presented on Feb. 4 was unanimously “pre-approved” by the
PBA Board of Governors. This approval was obtained when
I appeared at the Board of Governors meeting in Erie, on
Sept. 18, 2009.
The impact of these years of work and testimony has yet
to be seen. Legislation moves slowly in this commonwealth
and the already slow legislative process has been delayed
even further by the budget crisis that befell Pennsylvania in
2009 (into 2010). Stay tuned!
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
EDITOR’S COLUMN
By David S. Pollock, Esq.
dpollock@pbkg.net
Global Freakiness is now upon us. As a child in the ‘50s
and ‘60s, I was glued to the Science Fiction and Fantasy
Magazine and all kinds of science fiction books. At that time,
the authors were fixated on the atom bomb and spacecraft.
Science fiction evolved over the decades into social science
fiction. And since my undergraduate studies were cultural and
social anthropology and sociology, science fiction has kept
my attention to this very day. As fantasy branched off, I have
only seldom gone that route (except for my frequent rereads
of the Tolkien masterpieces). But what I recall from those
wonderful ‘50s and ‘60s science fiction books is that mankind
would so befoul the atmosphere that outside of the domes
covering the metropolises on earth, there would be freaky
weather, not fit for man — only terrifying beasts. For that reason (and need for raw materials), mankind’s outward migration to other planets became a Terran mandate. And so it is
with horrific hurricanes, crazy storms and uncommon weather events that we now will experience for the remainder of our
lifetimes. “Global warming” is a terrible misnomer. As the
post-atom bomb writers prognosticated, it is “Global
Freakiness” or as Thomas L. Friedman recently wrote in The
New York Times: “Global Weirding is here.”
Oh the weather outside is frightful,
But the fire is so delightful,
And since we’ve no place to go,
Let It Snow! Let It Snow! Let It Snow!
It doesn’t show signs of stopping,
And I’ve bought some corn for popping,
The lights are turned way down low,
Let It Snow! Let It Snow! Let It Snow!
When we finally kiss goodnight,
How I’ll hate going out in the storm!
But if you’ll really hold me tight,
All the way home I’ll be warm.
The fire is slowly dying,
And, my dear, we’re still good-bying,
But as long as you love me so,
Let It Snow! Let It Snow! Let It Snow!
Let us hope our cases and clients do not turn freaky or
weird like the weather!
After a great PBA Family Law Section Annual Winter
Meeting, we offer an eclectic group of case notes:
Campbell v. Walker – Christine Gale
Miller v. Miller – Michael E. Bertin
Harcar v. Harcar – Cheryl B. Krentzman
In Re: K.T.E.L. – Lynnore Kay Seaton
Mackay v. Mackay – Joo Y. Park
DeBoer v. Slusser – Andrew D. Taylor
McMullen v. Kutz – Elizabeth J. Billies
M.A.T. v. G.S.T. – Carolyn R. Mirabile
For the time-being, all the snow is good to me. Lots of
snow in the Mid-Atlantic (as opposed to the Coast Mountains
of British Columbia or the Green Mountains of Vermont) has
made for a wonderful diversion from our toils as family
lawyers. So Let it Snow! Let it Snow! Let it Snow!
David S. Pollock is a Co-Founder of the Pittsburgh firm of
Pollock Begg Komar Glasser LLC, Editor-in-Chief of Pennsylvania Family Lawyer, Past Chair of PBA Family Law Section,
Past Chair of ACBA Family Law Section, Treasurer of Pa.
Chapter of AAML, and Fellow of both the AAML and IAML.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
R.M.G., Jr. v. F.M.G. – Elizabeth H. Cepparulo
Silver v. Pinsky – Jonathan Todd Hoffman
David Ladov, Lori Shemtob and I thank our loyal
cadre of case note authors who year after year give us clear
synopses and good insights into the appellate case law.
(continued on Page 4)
3
EDITOR’S COLUMN
(continued from Page 3)
And, the following Articles and Comments are ones that
we find particularly interesting:
2010 Amendments to the Pennsylvania Supreme Court
Support Guidelines – Andrew D. Taylor
Unified Family Court in Allegheny County – Hon.
David N. Wecht
Cash Flow for Support Purposes Chart – Dana A.
Levine and Brian C. Vertz
“The Taxing Side of Divorce” – Mary V. Ade, Director,
SRR, Inc.
In Case You Were Wondering — Retirement Benefits
and Plan Participant’s Death — Cami L. Davis
The Effect of Islamic Family Law on North American
Family Law Issues — Alexandra Leichter
The long-awaited Amendments to the Guidelines promulgated Jan. 12, have finally laid to rest the Melzer formula,
which brought terrible disheartening results due to the cliff
effect when an income analysis changed to a needs-based
analysis. The Pennsylvania Supreme Court’s new requirement to present an expense statement when the net incomes
exceed $30,000 per month is perplexing [see Rule
1910.27(b)(2)(B) and Explanatory Comment – 2010]. This
editor hopes this is not a return to the utterly absurd budgetary battles that put lots of monies in a very few attorney and
“compilation expert” coffers under the guise of assisting the
dependent spouse. This author hopes that those legal events
are over. Andrew Taylor’s Guidelines review in this issue
should be the beginning of your close reading, after which
you should be attending the upcoming spring PBI lectures
regarding these amendments.
Administrative Judge Wecht’s extension of Allegheny
County’s “One Family One Judge” concept into the “Unified
Family Court” is a good read for attorneys and judges in
counties with separate Family Divisions dealing with adult
and juvenile cases. And, my law partner Brian C. Vertz’s
“Cash Flow for Support Purposes” is back (with our associate Dana A. Levine’s updates) for what we hope to be an
annual offering! Thanks Brian and Dana for returning this
PBA/PBI quick guide to the Pennsylvania Family Lawyer.
Mary V. Ade’s tax article and Cami L. Davis’ retirement
article are included to continue to give readers fresh, clear
and concise explanations of the federal laws affecting all
aspects of our family law practices. And, Alexandra
Leichter’s religious divorce article is essential to that aspect
of our cases. Harry Byrne, Benjamin Orsatti and I thank
all of the authors for their desire to educate our readership.
The older we get the more we are affected and deeply
concerned by the highs and lows of our family and friends.
Rita and I send our love and condolences to Carol and
Barry McCarthy on the passing of their son Jack
McCarthy.
PBA ANNUAL MEETING — May 12-14 • Hershey Lodge, Hershey
Download the Annual Meeting brochure at www.pabar.org.
4
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Case Notes:
David L. Ladov, Esq., Co-Editor, dladov@cozen.com
Lori K. Shemtob, Co-Editor, lshemtob@shemtoblaw.com
SEIZING OF PERSONAL INJURY SETTLEMENT PROCEEDS
PERMITTED FOR CHILD SUPPORT ENFORCEMENT
BY CHRISTINE GALE, ESQ.
CAMPBELL V. WALKER; APPEAL OF:
DEPARTMENT OF PUBLIC WELFARE
982 A.2d 1013 (Pa. Super. 2009)
The Superior Court (Bender, Shogan, JJ., and
McEwen, P.J.E.) reversed the decision of the Philadelphia
County Judge Pechkurow, which had denied the request of
the Department of Public Welfare (DPW) to seize father’s
personal injury proceeds to satisfy child support arrears
owed to the Department. The father had received a $3,084
settlement from a personal injury lawsuit with the trial
court accepting the father’s agreement to pay support
arrears of $957 in full to the mother but releasing the balance of the funds to the father, with no payment to the
DPW for arrears owed to the Department. Judge
Pechkurow relied on 23 Pa. C.S. §4308.1(a), which
authorizes the seizure of monetary awards, such as a settlement from a lawsuit, only where such award is in excess of
$5,000. The Department of Public Welfare successfully
argued that enforcement had been sought under 23 Pa. C.S.
§4305(b)(10)(ii), which permits the interception of settlements for the satisfaction of support obligations. The
Superior Court determined that these two sections were not
in conflict with each other but were complementary measures to achieve the goal of child support collection.
as arrears owed to the DPW, thus resulting in notification
to the Office of the Philadelphia District Attorney, which
served as counsel for the Department.
Following a hearing to address the distribution of the
settlement proceeds, an agreement was entered between
the father and the mother for the payment to the mother of
the arrears owed to her directly. The trial court entered an
order releasing the balance of the proceeds to the father,
but did not order any distribution to the DPW for the
arrears owed to the Department.
The DPW filed an appeal, questioning whether the trial
court abused its discretion by denying distribution of any of
the proceeds to satisfy the arrears owed to the Department.
TRIAL COURT DECISION
At the time of the hearing, the trial court relied on 23
Pa. C.S. §4308.1(a) and determined that the court did not
have the power to seize the proceeds for the satisfaction of
arrears since the father’s settlement proceeds were less
than $5,000. The payment by the father to the mother of
the arrears owed to the mother were the result of an agreement between the father and the mother and thus the trial
court could enforce that agreement, but the trial court did
not determine that it could require a further satisfaction of
arrears to the DPW.
BACKGROUND
The facts of the case are not in dispute. The father had
negotiated a settlement of a personal injury lawsuit, netting
him the sum of $3,084. He had a child support obligation
that included arrears owed directly to the mother, as well
PENNSYLVANIA SUPERIOR COURT’S DECISION
The resolution of this appeal involves statutory construction presenting a pure question of law and thus the stan-
David L. Ladov is a Partner in the West Conshohocken office
of the law firm of Cozen O’Connor, Case Notes Co-Editor of
Pennsylvania Family Lawyer and Past Chair of the PBA
Family Law Section. Lori K. Shemtob is a partner in the Blue
Bell law firm of Shemtob & Shemtob, Case Notes Co-Editor
of Pennsylvania Family Lawyer and member of Council of
the PBA Family Law Section.
Christine Gale is a Shareholder in the Pittsburgh law firm of
Frank, Bails, Murcko, Gubinsky & Gale, P.C., Second Vice
Chair of the Pennsylvania Bar Association Family Law
Section and a member of its Legislative Committee, and a
former Council member of the Allegheny County Bar
Association Family Law Section and Co-Chair of its
Legislative Committee.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
(continued on Page 6)
5
CASE NOTES
(continued from Page 5)
dard of review of the Superior Court is de novo and the
Superior Court’s scope of review is plenary. Lynnebrook and
Woodbrook Assoc., L.P. v. Borough of Millersville, 963 A.2d
1261 (Pa. 2008).
The Superior Court, per McEwen, P.J.E., was not persuaded by the father’s argument that the dispute was governed solely by Section 4308. Rather, the Superior Court
determined that Sections 4308 and 4305 were not in conflict
and that either could be applied to the issue of the personal
injury funds. The Superior Court distinguished Section 4308
by clarifying that said section required an obligor to notify
the local Domestic Relations Division in the event of such a
personal injury award or settlement so as to allow collection
of any such asset to satisfy support obligations. Section
4305 permitted the collection of arrears by seizing judgments
or settlements in any amount. The sections were complementary measures to be used to enforce child support obligations
and collect any arrears owing.
23 Pa. C.S. §4305(b)(10)(ii) permits the intercepting or
seizing of judgments or settlements and is provided under the
powers and duties described in the general administration of
support matters. 23 Pa. C.S. §4308.1(a)(i) clarifies the
court’s power for the collection of overdue support from
monetary awards and provides that any support arrears shall
constitute a lien by operation of law against any net proceeds
of any monetary award, with the distribution of any such
award being stayed. Monetary awards are described as any
lump sum payment from the resolution of a civil lawsuit, said
award being in excess of $5,000.
The question before the Superior Court was whether the
general powers described in Section 4305 empowered the
court to seize the monetary award even though the monetary
award was less than the $5,000 limit described in Section
4308. Principally, the trial court’s position was that the specific language of Section 4308 would prevail over the general language of Section 4305, particularly since Section 4308
was enacted after Section 4305. Therefore, if two provisions
of the statute are in conflict, the specific will prevail unless
the general provision was enacted after the specific provision.
The Superior Court, however, determined that no true
conflict existed. The reasoning was given that Section 4308
imposed a lien by operation of law, attaching immediately
upon recovery by the obligor, with no action being required
by the obligee. This section was determined to be a separate
device intended to assure notification of any such settlements.
Section 4305 provides for the collection of arrears in any
amount from defaulting obligors by the issuance of orders
that would include the seizure of judgments or settlements.
6
The two statutory sections were not irreconcilable, but
instead, complementary measures to be used to facilitate collection of support obligations. The trial court’s order was
reversed and the matter was remanded for proceedings consistent with the Superior Court’s determination.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
Over the last two decades we have seen stronger and
stronger enforcement measures being used by our courts to
enforce support obligations. Long gone are the days when an
obligor had to be found in contempt at least a few times
before action would be taken. Long gone are the days when
wage attachments were not readily imposed. Now wage
attachments are a matter of course, issued unless the obligee
elects to decline such enforcement methods. Wage attachments are the norm in support obligations. Liens against real
property are the norm when arrears exist, resulting in the satisfaction of support arrears when real estate is sold. Assets
can be seized from financial institutions, judgments are
entered and credit bureaus are notified when arrears exist.
Federal and state income tax refunds are intercepted, professional licenses and driver’s licenses are suspended when
arrears are unpaid. 23 Pa. C.S.A. §3505(a) also allows
issuance of an injunction to prevent a party from alienating
property in order to defeat a child support award. Although
not dealing with child support, see also Dudas v.
Pietrzykowski, 849 A.2d 582 (Pa. 2004), where workers’
compensation lump sum payments were placed in escrow to
ensure future alimony payments. These are all remedies that
practitioners did not see automatically being pursued or
enforced in years gone by.
It is clear that enforcement of child support obligations
is a paramount concern to the courts of this commonwealth.
One may be able to see the trial court’s reasoning that the
specific language of Section 4308 should trump the general
language of Section 4305, particularly since Section 4308
was enacted after Section 4305. Our trial courts have long
enforced the rule of statutory construction, which provides
that when a general provision in a statute is in conflict with
the specific provision of the same or another statute, the specific provisions will prevail and shall be construed as an
exception to the general provision. See Olshansky v.
Montgomery County Election Board, 412 A.2d 552 (Pa.
1980); McKinney v. Board of Commissioners of Allegheny
County, 410 A.2d 1238 (Pa. 1980); and Yerger v. Voters of
Jackson Township, 333 A.2d 902 (Pa. 1975). All of these
cases, along with numerous other cases, support the argument that specific provisions of statutes govern the general
provisions of the same or different statutes. However, the
Statutory Construction Act of 1972, 1 Pa. C.S.A. §1933
(Supp. 1978-79) directs that whenever general and specific
(continued on Page 7)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 6)
provisions are in conflict, the provisions should be construed
if at all possible to give effect to both.
The Superior Court did not determine that a conflict
existed in the matter before us as Section 4308 provides for
an automatic lien by operation of law, thus involving the
court before distribution of large settlement proceeds are
effectuated. Section 4305 is the broad and general statute
dealing with child support enforcement and collection.
Simply because a lien exists by operation of law and a determination must be made as to the distribution of settlement
proceeds, there is no limitation of the general powers of the
court to use all measures possible and necessary to enforce
child support obligations. The courts have held enforcement
of child support to be of paramount concern, giving liens for
child support priority over competing liens. See Wolf v. Wolf,
2003 WL 23507497 (Pa.Com.Pl.) 65 Pa. D.&C.4th 71)
(2003) and 42 USCA §666(b)(7). The bankruptcy court also
recognizes child support as a priority claim. It is, therefore,
no surprise that the Superior Court determined that the two
statutes in question were not in conflict but both worked to
ensure the collection of support arrears.
ENFORCING MORTGAGE PAYMENT PROVISION
IN POSTNUPTIAL AGREEMENT
BY MICHAEL E. BERTIN, ESQ.
MILLER V. MILLER, 983 A.2d 736 (Pa. Super. 2009).
Miller raises interesting issues for the family law practitioner. Generally, the Miller case pertains to a Postnuptial
Agreement entered between the parties that included a provision that the husband would pay for the mortgage loan, real
estate taxes and homeowner’s insurance on the marital residence until the marital residence was sold.
The parties married in 1979, had four children, resided
in a jointly owned marital residence, and divorced in 1994.
The parties entered into a Postnuptial Agreement that was
incorporated but not merged into the divorce decree. Neither
party disputes the validity of the Postnuptial Agreement. The
Agreement provided under Paragraph 3.1 that the husband
shall be solely responsible for payment of the mortgage loan,
real estate taxes and homeowner’s insurance on the marital
residence and, in the event the marital residence would be
sold, the parties would equally share in the expenses of the
sale and net proceeds, and the husband would be reimbursed
for his payments toward the mortgage.
After the parties divorced, wife and the children continued to reside in the marital residence and husband continued
to pay the forgoing mortgage payment until approximately
October 1996.
Michael E. Bertin is a Partner in the Philadelphia law firm
of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin
is Co-Chairman of the Custody Committee and Secretary of
the Family Law Section of the Philadelphia Bar Association,
and a member of Council and past member of the Executive
Committee of the Family Law Section of the Pennsylvania
Bar Association.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Wife filed a child support action against husband in
August 1996, and a hearing officer entered an Interim Order
following a Sept. 30, 1996 support hearing directing husband
to pay child support. The Interim Order also provided that
wife was to pay the “mortgage” on the marital residence
from the child support she received beginning Oct. 1, 1996.
Neither party filed exceptions to the Interim Order.
Beginning Oct. 1, 1996, husband stopped making mortgage
payments on the marital residence. The Opinion, in a footnote, indicates that husband argued that the term “mortgage”
included real estate tax and homeowner’s insurance payments, though wife disagreed and focused on the point that
the Interim Order was silent as to real estate taxes and/or
homeowner’s insurance payments. After the master’s hearing, there were two subsequent hearings that modified the
Interim Order retroactive to Aug.12, 1996. Interestingly, the
modified order was silent as to the mortgage payment obligation “or any other obligations regarding the marital residence.” Wife paid the mortgage payments from Oct. 1, 1996
until the mortgage was satisfied in January 1999. “However,
real estate taxes on the marital residence became delinquent.” In July 2005, the township and school district sued
husband and wife, asserting a tax lien against the marital residence. Husband and wife filed cross claims against each
other. After husband paid his proportionate share of the taxes
due, the township and school district dismissed its claim
against husband.
On Nov. 15, 2005, wife filed a petition seeking enforcement of the agreement and requested that the court “compel
husband to pay all outstanding real estate taxes and reim(continued on Page 8)
7
CASE NOTES
(continued from Page 7)
burse her for all of her post-separation payments made on the
marital residence (i.e., mortgage, tax and insurance payments).” Husband filed a Motion for Summary Judgment
against wife seeking damages in excess of $113,000 “for
inter alia her alleged failure to pay the mortgage, taxes and
insurance on the marital residence in accordance with the
Interim Order.” In his motion, husband claimed that the
Interim Order directing wife to pay the mortgage from his
child support payments superseded the Agreement and
“relieved him of his contractual obligation.” Wife filed a
Motion for Partial Summary Judgment in response, “which
asserted that the Interim Order did not supersede the
Agreement and husband’s cessation of making payments on
the marital residence constituted a breach of the Agreement.”
The trial court denied husband’s Motion and granted wife’s
Partial Summary Judgment Motion, finding that husband
breached his obligation under the Agreement and ordered
another hearing before another hearing officer to determine
wife’s damages as a result of husband’s breach.
The hearing officer issued a Temporary Order on damages in the following amounts: $80,650.95 for the mortgage,
tax and insurance payments made by wife, and $17,335 for
wife’s attorney’s fees and expenses. Husband filed
Exceptions to the hearing officer’s damages order and
Allegheny County Judge Eaton dismissed the Exceptions
and adopted the hearing officer’s Temporary Order in its
entirety. As a result thereof, husband filed a timely appeal
raising three issues:
I. Whether the [Interim O]rder – [directing] that wife pay
the mortgage beginning Oct. 1, 1996, from husband’s
child support — became final by operation of law when
wife failed to file an exception;
II. Whether wife’s claim for reimbursement of payments
she [had] made [toward the marital residence] over four
years before she filed her [P]etition for Enforcement are
barred by the four-year statute of limitations applicable
to a contract action; and
III. Whether §3502(e) of the Divorce Code … provides a
statutory basis for an award of counsel fees as compensatory damages in an action for breach of a post-nuptial
agreement.
A layered analysis was applied to husband’s first claim
on appeal by the Superior Court (Musmanno, Donohue and
Shogan, JJ.). First, it appears that husband’s challenge was
defective because of local procedure. According to the opinion (authored by Musmanno, J.), Allegheny County Local
Rule provides that “[n]o exceptions may be filed to a recommendation of a hearing officer labeled ‘interim.’” Therefore,
the parties could not file exceptions to the Interim Order
8
under the local rule. The Superior Court noted that neither of
the modified orders (which were retroactive prior to the
Interim Order) included a provision directing wife to pay the
mortgage from husband’s monthly child support payments.
Husband argued that the subsequent orders modified only the
amount of his support and did not supersede wife’s obligation under the Interim Order to pay the mortgage and other
payments regarding the marital residence from his child support payments. Husband noted Rule 1910.16-6(e), which
provides: “[t]he Guidelines assume that the spouse occupying the marital residence will be solely responsible for the
mortgage payments, real estate taxes and homeowners’
insurance.” He also argued that the trial court’s damage
award improperly granted wife “double recovery,” since
“husband had already made these payments on the marital
residence” through his monthly child support payment.
The Superior Court looked to the fact that husband
assumed the responsibility to make the payments on the marital residence in the agreement until the house was sold, and
that the agreement remained in full force at all times during
the parties’ child support case and “is valid and binding to
this day.” The Superior Court also noted that wife complied
with the Interim Order and paid the mortgage payments on
the marital residence from husband’s child support. The
Superior Court further stated: “The trial court in a child support action could not modify the contractual obligations that
husband previously had assumed under … the Agreement.”
Under §3105(c) of the Divorce Code, unless there is a specific provision appearing in an agreement stating to the contrary, the agreement cannot be subject to modification by the
court regarding property rights and interests between the parties. The agreement at issue did not contain a provision permitting the court to modify the parties’ disposition of the
marital residence (a property right and obligation). In the
alternative, husband argued that the mortgage provision constituted a “child support obligation,” therefore making it
available to be modified by the trial court. The Superior
Court found that argument to be without merit as well.
Accordingly, the Superior Court rejected husband’s first
argument on appeal.
Husband’s second argument on appeal, regarding the
four-year statute of limitations, was found to be meritless by
the Superior Court. The Superior Court reminded the practitioner that property settlement agreements constitute a continuing contract. In cases where there is a continuing contract, the statute of limitations generally does not run.
Husband argued that each time he failed to make a payment
on the mortgage, taxes and insurance, pursuant to the agreement, a separate cause of action accrued, thereby triggering
the limitations period, and wife filed after the four-year period. However, the Superior Court disagreed with that argument. Husband also argued that when a contract is continu(continued on Page 9)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 8)
ing, “the statute of limitations will run from either the time
when the breach occurs or when the contract is in some way
terminated.” The Superior Court responded by stating:
“Here, however, husband continued to owe payments on the
marital residence, an obligation that he had expressly
assumed under … the Agreement. Accordingly, the statue of
limitations had not begun to run on husband’s continuing
payment obligations.”
Lastly, husband argued that the trial court erred in applying §3502(e) in awarding counsel fees for the breach of the
Agreement. Husband argued that the Agreement between the
parties was not an agreement of equitable division of marital
property, thereby rendering §3502(e) inapplicable to the
present case. Section 3502(e) provides: “If … a party has
failed to comply with an Order of Equitable Distribution …
or with the terms of an agreement as entered into between the
parties … the court may … award counsel fees and costs.”
Section 3105 of the Divorce Code provides, in part, as follows: “A party to an agreement regarding matters … under
this part, whether or not the agreement has been merged or
incorporated into the decree, may utilize a remedy or sanc-
tion set forth in the Code to enforce the agreement.” The
Superior Court held that the parties “unequivocally
expressed their intentions that the agreement was the instrument that would exclusively govern the distribution of their
marital property.” Further, though the agreement did not contain a provision regarding the award of counsel fees, the
Superior Court found that the trial court had the authority to
award wife counsel fees under §3502(e)(7) via §3105(a).
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
This case is important for the family law practitioner. It
reminds the family law practitioner that regardless of
whether a property settlement agreement is incorporated in a
divorce decree or contains a provision for attorneys’ fees, if
a party breaches the agreement, attorneys’ fees may be
ordered. It also reminds the practitioner of the importance of
provisions pertaining to the payment of expenses related to
marital property. Further, under this case, mortgage payments can be deemed independent of support obligations and
held to be non-modifiable if contained in an agreement construed to be in the nature of property rights and obligations.
This Dec. 8, 2009 article is reprinted with permission from
The Legal Intelligencer © 2009.
TRIAL COURT DID NOT IMPROPERLY MODIFY CUSTODY ORDER IN
CONTEMPT PROCEEDING BY FAILING TO IMPOSE SANCTION OF
RETURN OF CHILD TO JURISDICTION, BUT FAILURE TO IMPOSE ANY
SANCTIONS FOR CONTEMPT AND PRONOUNCEMENT REGARDING
FUTURE JURISDICTION CONSTITUTED ERRORS
BY CHERYL B. KRENTZMAN, ESQ.
HARCAR V. HARCAR
982 A.2d 1230 (Pa. Super. 2009)
In Harcar v. Harcar, the Superior Court (Musmanno,
Donohue and Shogan, JJ), considered father’s appeal from
Beaver County Judge Kim Tesla’s decision relating to contempt and jurisdiction in a child custody case involving the
United States and the Republic of Turkey. The Superior
Cheryl B. Krentzman in an Associate in the State College
office of McNees, Wallace & Nurick LLC, and is a member
of the PBA Family Law Section, the Centre County Bar
Association, and the Wilkinson-Campbell American Inn of
Court.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Court, per Shogan, J., affirmed the trial court’s finding of
contempt, rejected father’s claim that failure to order the
return of the child to Beaver County constituted an improper
modification of the custody order, but reversed and remanded for the trial court’s failure to impose any sanctions, and
vacated the portion of the lower court’s order regarding
future exercise of jurisdiction.
FACTS AND PROCEDURAL HISTORY
The Parties
Prior to separation, father and mother, both natives of
the Republic of Turkey, lived in Beaver County during the
academic year, where they both served in teaching positions
(continued on Page 10)
9
CASE NOTES
(continued from Page 9)
at the Pennsylvania State University Beaver Campus. During
the summer months, the parties would return to their native
Republic of Turkey. The parties had one child who followed
the same schedule.
The Original Custody Order
The parties separated and, in March 2006, mother filed
a custody complaint in Beaver County. By Order entered on
May 1, 2006, mother was awarded primary physical custody
of child, with father having partial physical custody. The trial
court’s Order stated that neither party could remove the child
from the U.S. without written and verbal consent of the other
party and if either party sought to relocate out of Beaver
County, court approval would be required unless the other
party consented in writing.
Mother’s Request to Take the Child to Turkey for the
Summer and Related Filings
Two months later, on June 2, 2006, mother filed a
Motion for Special Relief seeking permission to take the
child to Turkey for the summer. On the same day, the trial
court granted mother’s motion and allowed mother to take
the child to Turkey from June 12, 2006 through Aug. 18,
2006. Also in June 2006, mother undertook several other filings, including claims for divorce and custody in Turkey and
a Petition to Relocate with the Child, which was filed in
Beaver County.
Father’s First Petition Relating to Mother’s Failure to
Return with the Child
After Mother failed to return from Turkey in August
2006, Father filed a Petition for Civil Contempt of the June
2, 2006 Order in Beaver County. A Rule was issued on mother and a hearing was set for Sept. 1, 2006. Although mother
did not answer the Rule, she did file a Motion to withdraw
her Petition to Relocate citing that a judge in Turkey assumed
jurisdiction over the custody matter and determined that the
child should remain in Turkey. The hearing on father’s
Petition for Civil Contempt was not held on Sept. 1, 2006.
Father’s Second Petition Relating to Mother’s Failure to
Return with the Child and the Trial Court’s Order for
Return to Beaver County
Thereafter, father again filed a Petition seeking Special
Relief relating to mother’s failure to return the child pursuant
to the June 2, 2006 Order. Mother answered the Petition stating that she did not return the child to Beaver County
because she did not want to violate the Order of the judge in
Turkey. On Sept. 5, 2006, the trial court ordered mother to
return the child to Beaver County.
Father’s Third Petition Relating to Mother’s Failure to
Return with the Child
Mother did not return the child to Beaver County and, on
March 4, 2008, father filed another Civil Contempt Petition,
asking that the trial court now hold mother in contempt of
both the June 2, 2006 and the Sept. 5, 2006 Orders. A Rule
was issued upon mother and a hearing was scheduled for
May 13, 2008. By this time, the original Order of the judge
in Turkey had been vacated by the Supreme Court of Appeals
in Turkey pursuant to the Hague Convention.
The Contempt Hearings and Trial Court Decision
Hearings were held on father’s Civil Contempt Petition
on May 13, 2008, and Aug. 11, 2008. Ultimately, the trial
court issued an Order on Oct. 7, 2008, finding mother in contempt of the June 2, 2006 and Sept. 5, 2006 orders. The trial
court, however, did not impose any sanctions on mother. In
so doing, the trial court observed that, given that approximately two years had passed, much of the evidence relating
to best interests was now in Turkey, that father was now living in Turkey on an education sabbatical for approximately
one year and that he may relocate to the State of Georgia
(former USSR) after that, and that it would not be in the best
interest of the child to force mother to return the child to
Beaver County when father was no longer living there.
Despite being aware of the reversal of the original Order of
the judge in Turkey, the Beaver County trial court judge concluded that Beaver County was now an inconvenient forum
under 23 Pa.C.S.A. §5427 and all further custody proceedings should occur in Turkey.
Father’s Appeal
Father filed a timely appeal of the trial court’s Oct. 7,
2008 Order, raising three issues on the basis of abuse of discretion and error of law, summarized as follows:
1.
2.
3.
The trial court improperly sua sponte modified the controlling court Orders in the context of only a Petition for
Contempt;
The trial court was incorrect in failing to impose any
sanctions and, in fact, acted by rewarding mother’s contempt despite the fact that the Beaver County orders had
not been modified or vacated and Turkey refused to
exercise jurisdiction; and
The trial court improperly refused to exercise subject
matter jurisdiction or exclusive continuing jurisdiction
in light of the fact that Turkey declined to exercise jurisdiction.
(continued on Page 11)
10
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 10)
Mother did not file a brief on appeal. Notably, after filing his appeal, the Superior Court granted father’s Motion
for Allowance of Post-Submission Communication, where
father supplemented the record to reflect that the courts in
Turkey entered numerous orders that the child be returned to
father, including an Order from the Supreme Court of
Appeals in Turkey.
SUPERIOR COURT DISCUSSION AND DECISION
As an initial matter, after analyzing the applicable standards and procedures, the Superior Court confirmed that the
trial court properly held mother in contempt of the prior
orders. The Superior Court Opinion then proceeded to
review each of father’s specific issues raised on appeal.
Issue 1: The Trial Court Did Not Improperly Modify the
Custody Orders in the Context of a Contempt Proceeding
The Superior Court rejected father’s argument that the
trial court improperly sua sponte modified the prior Beaver
County custody orders by not requiring mother to return with
the child to Beaver County. Father relied on Langendorfer v.
Spearman, 797 A.2d 303 (Pa. Super. 2002), to argue that it is
improper to modify custody when considering only a contempt matter and there is no petition for modification pending. However, the Superior Court rejected father’s reliance
on Langendorfer, as it found that that case involved a grant
for contempt accompanied by a change in the legal and primary physical custody, which violated due process rights
because of the lack of notice that custody would be at issue.
Instead, the Superior Court found that here, no modification
of the custody was made, and that the trial court simply
declined to require mother to return the child to its jurisdiction.
Issue 2: The Trial Court Erred in Refusing to Impose
Any Sanction on Mother for Contempt
On the second issue, the Superior Court found father’s
reliance on Goodman v. Goodman, 556 A.2d 1379 (Pa.
Super. 1989) to be on point. The Superior Court Opinion recognized in great detail the facts, discussion and holding of
the Goodman case. The mother in Goodman had temporary
primary physical custody and despite representations to the
trial court that she would remain in the jurisdiction, the
mother relocated with the child to West Germany and filed a
custody action in that jurisdiction, where she was ultimately
granted sole custody without notice to the father. The trial
court in Goodman imposed fines on the mother, issued bench
warrants for her arrest and ordered that the child be returned
to the father in Pennsylvania. On appeal, the panel of the
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Superior Court in Goodman determined that the trial court
was not bound under the then-controlling provisions of the
Uniform Child Custody Jurisdiction Act (UCCJA) to recognize the West German orders, that the mother engaged in
egregious forum shopping and that it was not an abuse of discretion for the trial court to impose counsel fees as part of the
sanction on mother, as the sanction was coercive and compensatory, not punitive.
Applying the principles discussed in Goodman to the
instant case, the Superior Court found that the trial court’s
decision not to impose sanctions on mother because it would
not be in the best interest of the child constituted an abuse of
discretion. The Superior Court noted mother’s “flagrant contempt” of the trial court’s orders and the fact that the trial
court’s reasoning for not sanctioning mother “actually permitted mother to engage in disobedience of the custody
orders of this commonwealth.” Citing Goodman for the
proposition that mother’s behavior of fleeing Pennsylvania,
where custody orders were in place, and seeking to litigate
the custody in Turkey is not condoned, the Superior Court
concluded that the trial court misapplied the law and exercised its discretion without reason when not imposing any
sanctions on mother. The Superior Court reversed this portion of the trial court’s decision and remanded for the trial
court to impose the appropriate sanction(s).
Issue 3: The Trial Court Erred in Determining Future
Jurisdiction, a Matter Not Yet Ripe for Decision
With regard to the final issue on appeal, whether the trial
court improperly pronounced that Pennsylvania was now an
inconvenient forum for custody and that all future matters
should be heard in Turkey, the Superior Court found that the
trial court decided a matter not properly before the court
which was therefore not ripe for decision. Although the trial
court explained this pronouncement as dicta in reaction to
father’s counsel’s statement that father would file a Petition
for Modification, the Superior Court did not agree.
Explaining that the Pennsylvania Supreme Court instructs
that the courts should not answer academic questions, render
advisory opinions or make decisions based on hypothetical
events that might occur, the Superior Court vacated the portion of the trial court’s order relating to future jurisdiction as
not ripe for determination.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
In addition to thoroughly reviewing each specific issue
raised on appeal by father, the Superior Court opinion provides an in-depth analysis of contempt standards and procedures, as well as jurisdictional issues. Although the opinion
provides significant guidance in these areas, there are two
main questions that remain unanswered in Harcar. First,
(continued on Page 12)
11
CASE NOTES
(continued from Page 11)
what is the appropriate sanction against mother? The trial
court has made clear that it will not order the return of the
child to Beaver County given the current whereabouts of
father, but what else can be ordered? The Superior Court’s
emphasis on the Goodman decision, where monetary sanctions in the form of counsel fees were upheld as part of the
sanctions imposed, suggests that this may be one avenue for
the trial court to explore. An interesting question is whether
the trial court could impose the counsel fees sanction not
only for the legal work performed for father in Beaver
County, but also in Turkey as the result of mother’s numerous filings and appeals in that country. Drawing from the
lack of activity in the Pennsylvania case from September
2006 through March 2008, and the references to various
orders from Turkey, it appears that father was also forced to
undertake significant legal efforts in Turkey for which he
could potentially be compensated.
The second unanswered question relates to which party
should properly have custody of the child at this juncture and
how the custody can be resolved from this point forward.
Clearly, the original custody Order of May 1, 2006, is not
being followed and, pursuant to the Superior Court’s opinion, primary physical custody cannot be granted to father
based on the contempt alone, without notice to mother that
custody is at issue. At the same time, pursuant to the Hague
Convention, the court in Turkey has ordered that the child be
returned to father. (Note, however, there is an indication that
the Turkey orders refer to the “U.S. resident father” and it is
unknown if father’s presence in Turkey would change this
ruling.) While in father’s ideal world, he would simply be
able to enforce the Turkish order, this resolution seems to circumvent many of the jurisdictional considerations at hand
that father has relied upon. As such, it appears that father’s
best option at this point is to proceed with filing a Petition for
Modification in Beaver County as his counsel indicated he
would do. The trial court will then presumably have its
opportunity to consider the jurisdictional issues and, unless
the guidance provided by Superior Court’s detailed discussion regarding mandatory and permissive declination of
jurisdiction sways the trial court, one can expect that ultimately the next determination of custody will be made by a
court in Turkey.
FAILURE TO ADHERE TO THE PENNSYLVANIA RULES
OF APPELLATE PROCEDURE CAN PRECLUDE REVIEW
OF AN APPELLANT’S ARGUMENTS
BY LYNNORE K. SEATON
IN RE K.T.E.L.
983 A.2d 745 (Pa. Super. 2009)
FACTS AND PROCEDURAL HISTORY
Mother appealed Philadelphia County Judge Dubow’s
decree involuntarily terminating her parental rights to
K.T.E.L., her biological child. The trial court terminated
mother’s parental rights pursuant to subsections 2511(a)(1),
(2), (5), (8) and 2511 (b) of the Adoption Act. Mother’s timely appeal raised the following questions: Whether the court
erred in: 1) terminating mother’s parental rights under subsection 2511(a)(8); 2) finding termination best served
K.T.E.L.’s developmental, physical and emotional needs
under subsection 2511(b); and terminating mother’s parental
rights after it had previously denied a similar petition.
Lynnore K. Seaton is an Associate in the Harrisburg firm of
McNees, Wallace, and Nurick, LLC, and a member of the
family law sections of the ABA and PBA, as well as a member of the Dauphin and York County Bar Associations.
12
Pursuant to changes to the Rules of Appellate Procedure,
custody cases are currently being “fast tracked” to expedite
their disposition. As such, Pennsylvania Rules of Appellate
Procedure (P.R.A.P.) 905(a)(2)i and 1925(a)(2)ii, adopted
Jan.13, 2009, require that a Notice of Appeal (Appeal) and
the Concise Statement of Errors Complained Of (Concise
Statement) be filed contemporaneously with one another.
While mother filed a timely Notice of Appeal, her Concise
Statement was filed three days thereafter.
The appellees did not file objections to the late filing of
the Concise Statement. Mother complied with all other procedural matters relative to the appeal, however, her brief
broadened the first issue to cover all the sections of the
Adoption Act under which mother’s rights were terminated,
not just subsection 2511(a)(8).
PENNSYLVANIA SUPERIOR COURT’S DECISION
Procedurally, this was an issue of first impression for the
Pennsylvania Superior Court in dealing with the children’s
(continued on Page 13)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 12)
fast track appeal procedures of PRAP 902(a)(2) and
1925(a)(2).
Judge Kelly, writing for the Superior Court panel of
Stevens, Kelly and Popovich, JJ., held that failure to strictly
adhere to Pennsylvania Rules of Appellate Procedure
905(a)(2) and 1925(a)(2) resulted in a defective Appeal.
Despite this defect, the court found no per se rule requiring
the appeal to be quashed or dismissed as a result thereof.
Instead, matters in which there is a defective Appeal shall be
determined on a case-by-case basis. Because the Concise
Statement was only three days late and did not prejudice the
appellees, this Superior Court panel declined to quash or
dismiss the instant appeal. In making this determination, this
court cited Stout v. Universal Underwriters Ins. Co., 421
A.2d 1047, 1049 (Pa. 1980). “The extreme action of dismissal should be imposed by an appellate court sparingly,
and clearly would be inappropriate when there has been substantial compliance with the rules and when the party [moving for the quashal of the appeal] has suffered no
prejudice.”iii
The court proceeded to consider mother’s questions on
appeal. The first issue mother raised in her Concise
Statement was whether the trial court erred in terminating
her parental rights under subsection 2511(a)(8), yet mother’s brief attempted to broaden the issue. In her brief, mother challenged the court’s termination of her parental rights
under subsections 2511(a)(1), (2), (5) and (8). Therefore, the
court initially addressed whether issues that were beyond
the scope of the original statement could be addressed. The
court reiterated that “No question will be considered unless
it is stated in the statement of questions involved or is fairly
suggested thereby.” Pa. R.A.P. 2116(a). Noting that while it
has reviewed issues that were not explicitly raised in the
Statement, those issues were implied by “logical inference”
in the context of the question raised. See Larue v. McGuire,
885 A. 2d 549, 554 n.4 (Pa. Super. 2005). The court found
that mother waived her challenges under subsections (a)(1),
(2) and (5), as they were not raised in her statement of questions involved, and could not be inferred by mother’s appeal
to review subsection (a)(8).
In support of her challenge under subsection (a)(8),
mother argued that in order to evaluate the emotional bond
between the parent and child, expert testimony must be produced in the hearing. The court explained that a bonding
evaluation, expert testimony or a parenting evaluation is not
required in order for grounds for termination under subsection (a)(8) to be found. The court cited In re K.K.R.-S.: “[i]n
analyzing the parent-child bond, the orphan’s court is not
required by statute or precedent to order a formal bonding
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
evaluation be performed by an expert.” In re K.K.R.-S, 958
A. 2d 529, 533 (Pa. Super. 2008).
Mother’s second issue on appeal was similar to her first,
in that her sole support that the court erred in terminating her
parental rights under subsection 2511(b) was that no bonding
evaluation was performed. The court found that this argument lacked merit, as no evaluations are required.
Finally, mother’s third issue was whether the court erred
in terminating her rights when it had recently denied a petition for termination of her rights a few months earlier. The
Superior Court dismissed this issue after determining that the
trial court properly considered the entire history of the case
in its determination and not just mother’s behavior since the
last hearing.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
This case provides a reminder to all parties of an appeal
to pay close attention to procedural rules. While mother’s
appeal was not completely quashed due to her failure to file
the Concise Statement contemporaneously with the Notice of
Appeal, she risked losing the entire appeal due to what may
have been simple oversight. Furthermore, she waived her
right to challenge the trial court’s findings regarding the
additional subsections by not listing them originally in her
statement.
The question that remains: What level of disregard for
procedural rules will the Superior Court consider prejudicial
to an opposing party? Filing a Concise Statement three days
late with no objections raised by the opposing party is not
prejudicial, but would the court have ruled differently if an
objection were filed immediately? Can a Concise Statement
be filed one week late? The essence of the children’s fasttrack procedures is to ensure that timely decisions are made
in custody appeals. In failing to file the Concise Statement
contemporaneously with the Notice of Appeal, an appellant
unilaterally delays the court’s ability to make a swift decision. Since the court ruled that each defective appeal will be
considered on a case-by-case basis, it is likely there will
never be a bright-line test. Appellees need to remain aware of
time frames, file objections when appropriate and be prepared to demonstrate to the court what, if any, harm they
have incurred as a result of appellants’ inability to follow the
procedural time restrictions.
i
Pennsylvania Rule of Appellate Procedure 905(a)(2) —
If the appeal is a children’s fast track appeal, the concise
statement of errors complained of on appeal as described
in Rule 1925(a)(2) shall be filed with the notice of
appeal and served in accordance with rule 1925(b)(1).
(continued on Page 14)
13
CASE NOTES
(continued from Page 13)
ii
Pennsylvania Rule of Appellate Procedure 1925 (a)(2) Children’s fast track appeals. — In a children’s fast track
appeal:
(i)The concise statement of errors complained of on appeal
shall be filed and served with the notice of appeal
required by Rule 905. See Pa. RAP. 905(a)(2).
(ii) Upon receipt of the notice of appeal and the concise statement of errors complained of on appeal required by Rule
905(a)(2), the judge who entered the order giving rise to
the notice of appeal, if the reasons for the order do not
already appear of record, shall within 30 days file of
iii
record at least a brief opinion of the reasons for the
order, or for the rulings or other errors complained of,
which may, but need not, refer to the transcript of the
proceedings.
The court points out the difference between children’s
fast track cases and other civil and criminal appeals.
Untimely concise statements filed in civil and criminal
cases pursuant to rule 1925(b) results in a waiver of all
issues, as they are mandated by trial court order.
Commonwealth v. Gravely, 970 A.2d 1137, 1142 (Pa.
2009) (citing Commonwealth v. Castillo, 888 A.2d 775,
778 (Pa. 2005)). In contrast, the concise statement in
children’s fast track cases is mandated by a rule of
appellate procedure, therefore the court declined to
extend the waiver rule of Castillo. See 1925(a)(2)(i).
PA SUPERIOR COURT REITERATES THE RULES OF LAW
REGARDING ORAL AGREEMENTS ON COLLEGE EXPENSES,
DEFINITION OF EARNING CAPACITY AND NET INCOME CALCULATIONS
BY JOO Y. PARK, ESQ.
MACKAY V. MACKAY
984 A.2d 529 (Pa. Super. 2009)
In Mackay v. Mackay, the Pennsylvania Superior Court
(Bender, Bowes and Cleland, JJ.) affirmed the decision of the
Allegheny County judge, which awarded mother support of
$810 per month for the three minor children in her custody,
but denied her request for enforcement of an alleged agreement between the parties regarding the children’s college
expenses and her counsel fees request based on violation of
the alleged agreement.
FACTS AND PROCEDURAL HISTORY
Mother and father married in 1988. Four children were
born during the marriage. Father worked in the business of
selling water treatment systems until August 1992, when he
and mother decided that father would stop working to stay
home to take care of the parties’ children. Mother became the
sole breadwinner for the family as she continued to work as
the director of environmental health and safety for a large
Joo Y. Park is an Associate in the Norristown firm of High
Swartz LLP, a member of the PBA Family Law Section and
the Montgomery County Family Law, Diversity Committee
and Doris Jonas Freed American Inn of Court.
14
multi-national corporation. The parties separated in April
2005, with father moving to Florida with his parents.
Subsequently, father filed a Complaint for Spousal support in
May 2005, followed by a Complaint for Divorce in July
2005. Judge Alan David Hertzberg presided over the trial of
the claims for equitable distribution, alimony pendente lite,
alimony, child support and counsel fees held from May 31 to
June 1, 2006. The trial court distributed the marital estate 50
percent to each party. The trial court awarded father alimony
pendente lite, but denied father’s alimony and counsel fee
claims. The trial court awarded mother child support of $698
per month. The divorce decree was entered in December
2006. In March 2007, the parties modified the child support
by consent order to $1,094 per month.
In May 2008, mother filed a Petition to Enforce
Agreement to Pay College Expenses and father filed a
Petition to Modify Child Support. The trial court consolidated these two matters and following a hearing, issued two separate orders: one awarding mother with support of $810 per
month for the three minor children in her custody and the
other denying mother’s request to force father to contribute
to the college expenses of the parties’ oldest child. Mother
filed timely appeals from these orders.
(continued on Page 15)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 14)
1.
2.
3.
4.
5.
6.
Mother raised the following issues in her appeal:
Whether the trial court erred in failing to grant mother’s
Petition to Enforce Agreement and by failing to enforce
the parties’ agreement to share the costs and expenses of
their children’s college education;
Whether the trial court erred in failing to require father
to reimburse and pay mother for his fair share of the
expenses and costs associated with the parties’ daughter,
paid to-date by mother, as well as those to be incurred in
the future;
Whether the trial court erred in calculation of the mother’s net monthly income;
Whether the trial court erred in failing to calculate
father’s net monthly income based upon his previously
adjudicated and established earning capacity;
Whether the trial court erred in calculating Guideline
Support and by failing to include and allocate support
for all additional expenses for the parties’ children; and
Whether the trial court erred in failing to award mother
counsel fees for father’s failure to comply with the parties’ agreement.
PENNSYLVANIA SUPERIOR COURT’S DECISION
In addressing mother’s first issue, the Superior Court,
per Bender, J., cited its recent decision, In re Estate of
Johnson, 970 A.2d 433 (Pa. Super. 2009), wherein the court
reiterated, “Pennsylvania law does not impose an obligation
on parents to provide for their children’s college expenses.”
The court also reiterated that a parent may assume financial
responsibility for a child’s secondary education. See Emrick
v. Emrick, 284 A.2d 682, 683 (Pa.1971); Bender v. Bender,
715 A.2d 1199, 1201 (Pa. Super. 1998). The court further
noted that where a party seeks to enforce a disputed oral
agreement, as in the instant matter, it is incumbent upon that
party to establish the essential terms and conditions that constitute the enforceable agreement. Boyle v. Steiman, 631 A.2d
1025, 1033 (Pa. Super. 1993).
In the instant matter, the record shows that during the
marriage, the parties pooled their incomes and in October
2004, while the parties’ marriage was still intact, the parties
agreed to pay for the children’s college educations from their
pooled incomes. Mother argued that based on this October
2004 agreement, father should be required to contribute to
the children’s college expenses. Mother further claimed that
the parties’ two daughters were witnesses to such agreement.
However, contrary to mother’s allegation, neither of the
daughters’ testimony at trial advanced mother’s position.
Father also testified that the only agreement he entered with
mother was that she would continue to work and not retire.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Based on the foregoing, the Superior Court agreed with
the trial court in holding that the parties’ agreement in
October 2004, was merely the couple’s expression of their
continuing plan to pool their marital resources, and that there
was no formula or agreement as to how much each parent
would contribute towards the children’s college expenses.
Having found that father was not contractually bound to contribute to the children’s college expenses, the court also
rejected mother’s request for counsel fees, allegedly due to
father’s failure to abide by the alleged agreement.
Next, the court addressed mother’s issues pertaining to
the trial court’s Jan. 22, 2009 support order, wherein the trial
court reduced father’s monthly child support obligation from
$1,094 to $810. On appeal, mother argued that the trial court
erred in utilizing father’s actual earned income as a manger
at a retail paint store in Alabama, rather than his earning
capacity as a sales representative selling industrial water
treatment systems. In rejecting mother’s argument, the
Superior Court pointed out that a person’s earning capacity is
defined “not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her
age, health, mental and physical condition and training.”
Gephart v. Gephart, 764 A.2d 613, 615 (Pa. Super. 2000).
Judge Bender also discussed that the record supported the
trial court’s credibility determinations in favor of father. At
the evidentiary hearing, father presented a vocational expert,
Donald F. Kirwan, a forensic economist, who outlined the
multiple problems with father returning to work in the field
of water treatment systems after a 16-year absence. Kirwan
testified that not only has manufacturing declined, father’s
work experience in the field was dated. Father corroborated
Kirwan’s testimony as he testified credibly to his efforts in
searching for employment. Based on the foregoing, the court
held that it will not disturb the trial court’s credibility determination in favor of father.
Mother’s next claim was that the trial court erred in its
calculation of her net monthly income. The trial court calculated mother’s net monthly income to be $13,072. Mother’s
own calculation resulted in $10,843. The court stressed that
the reason for the difference in these two numbers is found in
mother’s “Exhibit 17,” wherein mother utilized the basic
standard federal income tax deduction totaling $8,350 in calculating her gross income, while the trial court utilized the
itemized deductions on mother’s past returns. The court further pointed out that mother did not present any evidence
during the hearing to indicate that she intended to discontinue claiming itemized deductions on her tax returns. In a more
sharp tone, the court stated, “[t]he trial court simply discounted mother’s thinly veiled attempt to disguise her actual
income in order to increase father’s support obligation.”
(continued on Page 16)
15
CASE NOTES
(continued from Page 15)
mother’s petition to enforce the alleged oral agreement and
denied her request for counsel fees.
Mother also challenged the trial court’s inclusion of her
stock options in the calculation of her net monthly income as
they have not yet vested. However, father testified that the
stock options had in fact vested on Jan. 12, 2009, one day
before the evidentiary hearing. Subsequently, during cross
examination, mother conceded that she is now entitled to
redeem the first allotment of restricted stock and her gross
proceeds would total approximately $14,000. Accordingly,
the court rejected mother’s claim. See Mackinley v.
Messerschmidt, 814 A.2d 680, 681 (Pa. Super. 2002) (stating
“once vested, stock options become accessible to a parent
and so should be accessible to her children as well”).
In her final issue, mother argued that the trial court erred
in failing to augment the basic minimum child support with
an additional amount to account for the increased costs of the
children’s “other needs” pursuant to Pa.R.C.P. 1910.16-6(d).
Mother asserted that since the trial court’s previous support
orders allocated support for the children’s other needs, it was
bound by the law of the case doctrine to continue to include
those discretionary expenses in its support award. The
Superior Court rejected mother’s argument. Judge Bender
explained that the “law of the case” doctrine is inapposite
where, as here, the trial court is addressing a petition for
modification based upon a material and substantial change in
circumstances. See 23 Pa.C.S. §4352(a). Moreover, the court
found that mother’s argument was factually inaccurate as the
trial court addressed this precise claim in its Rule 1925(a)
opinion and included a 25 percent upward deviation from the
child support guidelines to account for the children’s
increased expenses. As noted by the trial court, this 25 percent upward deviation increased mother’s monthly child support award beyond what she would have received in proportionate reimbursement for the discretionary expenses she
identified during the evidentiary hearing.
For all of the foregoing reasons, the Superior Court
affirmed the final child support order entered on Jan. 22,
2009, wherein the trial court reduced father’s monthly child
support obligation to $810, and affirmed the trial court’s
order entered on Jan. 26, 2009, wherein the trial court denied
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
This case is yet another reminder to all practitioners that
under Pennsylvania law, a mere contemplation or planning of
payment for college expenses is insufficient to create a valid
agreement (oral or written) to impose a contractual obligation on the parents to provide for their children’s college
expenses.
With respect to the earning capacity issue, mother had
not presented any evidence concerning father’s earning
capacity and once again relied on the “law of the case” doctrine (since the court had previously set a different earning
capacity). But, this was a modification case and a new determination of incomes was warranted. See footnote 3 of the
opinion. Father, through use of a vocational expert as well as
his own testimony, highlighted the troubles he had in securing a job after a lengthy absence from the work force. Here,
the lesson to take away is that when confronting an earning
capacity issue, both parties have the task of gathering evidence (factual and/or statistical) that substantiates his/her
position.
Lastly, in regard to the issue of mother’s net monthly
income, this author finds it interesting the Superior Court’s
comment that mother should have indicated at the trial level
that she intended to discontinue claiming itemized deductions on her future tax returns. When faced with calculating
a parent’s net income for purposes of child support obligation, practitioners often consider all the various and legitimate factors that may result in several different net income
values. However, based on this case, it appears that any significant change in the method of calculating a client’s net
income should be prefaced with an explanation. Having said
that, had mother actually indicated her intention to discontinue claiming itemized deductions on her future tax returns at
the trial level, would the Superior Court given some credit to
mother’s calculation? Or would the Superior Court still have
treated mother’s calculation as just a self-serving ploy to
decrease her net income available for support? Your guess is
as good as mine!
PA. FAMILY LAWYER INDICES AVAILABLE:
Vols. 1-20 (1980-98) in cloth binding (fishman@duq.edu)
Vols. 21-23 (1999-2001) in 24 Pa. Family Lawyer 70 (November 2002)
Vols. 24-26 (2002-04) in 27 Pa. Family Lawyer 63 (September 2005)
Vols. 27-29 (2005-07) in 30 Pa. Family Lawyer 32 (April 2008)
16
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
PFA STATUTE APPLIES TO ABUSE BETWEEN CHILD’S MOTHER
AND PATERNAL GRANDFATHER
BY ANDREW D. TAYLOR, ESQ.
DeBOER v. SLUSSER
985 A.2d 974 (Pa. Super. 2009)
The Pennsylvania Superior Court (Musmanno, Shogan,
and McEwen, JJ.), in an opinion authored by Judge McEwen,
affirmed an order by the Susquehanna County Court of
Common Pleas (Seamans, J.) and held that the Protection
From Abuse (PFA) statute applies between a child’s mother
and paternal grandfather.
In DeBoer, Charlene Slusser (mother) filed a PFA action
against her child’s paternal grandfather, Douglas DeBoer
(grandfather). Mother and grandfather’s son were never married.
Mother alleged that grandfather pulled a gun from the
glove compartment of his vehicle, showed it to her and stated that if he did not see his granddaughter that mother knew
what he could do. The trial court entered a PFA Order against
grandfather excluding him from mother’s residence and precluding all contact with mother except under very limited
conditions.
On appeal, grandfather argued that the PFA statute was
not applicable between a grandfather and a child’s mother. In
affirming the trial court, the Superior Court held that the term
“abuse” is defined in the PFA statute as “[t]he occurrence of
one or more of the following acts between family or household members, sexual or intimate partners, or persons who
share biological parenthood: … [p]lacing another in reasonable fear of imminent serious bodily injury.” In addition, the
act provides that the phrase “family or household members”
includes those “persons related by consanguinity [i.e., blood]
or affinity.”
Grandfather argued that the definition of abuse limited
the application of the statute to conduct that occurs between
family or household members, sexual or intimate partners or
persons who share biological parenthood. The Superior
Court disagreed and held that, since grandfather and mother
had a “direct blood relationship to the child, and by extension
are inextricably linked to each other by that relationship,” the
parties fit within the definition of the statute. The court also
noted that the parties were more directly related by consanAndrew D. Taylor is an Associate in the Norristown office of
Weber Gallagher Simpson Stapleton Fires & Newby LLP. He
is a member of the Family Law Sections of the Pennsylvania
Bar Association and Montgomery County Bar Association.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
guinity than the brother-in-law/sister-in-law relationship that
was deemed adequate to invoke the protection of the act in
McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006).
In a footnote, the Superior Court also noted that the
General Assembly has explicitly provided for grandparents
to have visitation or custody rights of their grandchildren.
Since the order in question in this case provided for the possibility of future visitation between grandfather and the child,
the court apparently felt that this further contributed to the
link between mother and grandfather.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
This case seems to fall in line with the trend that the
Superior Court will broadly apply the PFA statute. It may
seem like somewhat of a stretch that the mother of a child
and the paternal grandfather are inextricably linked to each
other by virtue of a “direct blood relationship to the child,”
especially when the mother and grandfather’s son were never
married and the grandfather did not have rights of custody
when the PFA Order was entered. However, given today’s
ever-expanding concepts and definitions of what comprises a
“family,” a liberal interpretation of the statute may be appropriate.
Adoption and
Surrogacy Committee
Seeks Input
The Family Law Section of the Pennsylvania Bar
Association has recently approved the formation of
a committee within the section to address current
issues in adoption and surrogacy and to advise the
section on proposed legislation. Any PBA member
interested in serving on the committee or in offering input on these subjects is asked to contact
Michael Shatto at the PBA, 100 South Street, PO
Box 186, Harrisburg, Pa. 17108-1086; or Joe
Martone, Martone & Peasley, 150 W. 5th St. Erie,
Pa. 16507-2118.
17
SUPREME COURT FINDS THAT REASONABLENESS MUST BE IMPLIED
WHEN DETERMINING AN AWARD OF CONTRACTUAL COUNSEL FEES
BY ELIZABETH J. BILLIES, ESQ.
MCMULLEN V. KUTZ, 985 A.2d 769 (Pa. 2009)
The Supreme Court, in a matter of first impression,
granted wife’s appeal to determine whether a court could
imply a reasonableness requirement into a contract provision
that did not contain such a qualification. Wife, the nonbreaching party to a Marital Settlement Agreement, argued
that the term “reasonable” could not be inserted into the
Agreement’s enforcement provision, which provided that a
non-breaching party should be awarded all counsel fees
incurred as a result of the other party’s breach of the
Agreement. In a decision that has been met with much dissension, the Supreme Court determined that, as a matter of
public policy, reasonableness must be implied when determining an award of counsel fees under a contract.
FACTS AND TRIAL COURT DECISION
The facts of the case are as follows: On July 7, 2000,
Marjorie McMullen (wife) and Ronald Kutz (husband)
entered into a Marriage and Property Settlement Agreement
to resolve their pending economic and support claims. The
Agreement further provided that if either party breaches any
of its provisions, he or she will be responsible for any counsel fees and costs incurred by the non-breaching party to
enforce the Agreement. The Agreement’s enforcement provision specifically stated as follows:
If either party breaches any provision of this
Agreement, the other party shall have the right, at
his or her election, to sue for damages for such
breach or seek such other remedies or relief as may
be available to his or her, and the party breaches this
contract shall be responsible for payment of legal
fees and costs incurred by the other in enforcing
their rights under this agreement.
McMullen v. Kutz, 985 A.2d at 771.
In 2005, wife filed a Petition to Enforce the Agreement
alleging that husband had breached two of its provisions.
First, wife alleged that husband had stopped paying child
support before the defined emancipation date for their eldest
Elizabeth J. Billies is an Associate with the Lansdale firm of
Dischell, Bartle, Yanoff and Dooley, P.C. and a member of
the Family Law Sections of both the Montgomery County Bar
Association and the PBA.
18
son. Second, wife alleged that husband had failed to forward
to wife her full share of his military pension. Husband
responded in opposition to wife’s Petition, arguing that he
had not breached the Agreement. The trial court found for
wife on both issues.
After finding that husband had breached the Agreement,
Judge Edward E. Guido of Cumberland County addressed
the issue of wife’s counsel fees. Wife claimed that she
incurred approximately $3,000 in counsel fees as a result of
husband’s breach and that she, as the non-breaching party,
was entitled to that entire amount pursuant to the
Agreement’s enforcement provision. However, the trial
court, which did not hold a hearing on the issue of counsel
fees, rejected wife’s claim for $3,000, stating that such fees
were unreasonable. Rather the trial court awarded wife
$1,200, finding that such an amount was reasonable in light
of the gravity of husband’s breach.i In determining the appropriate award, the trial court placed great emphasis on the fact
that wife’s counsel made no effort to settle this matter prior
to filing the Petition to Enforce the Agreement.
SUPERIOR COURT DECISION
Wife appealed the trial court’s decision regarding the
award of counsel fees to the Superior Court. In her appeal,
wife argued that the trial court erred in considering the reasonableness of the counsel fees incurred when the
Agreement, contemplated and executed by both parties, did
not contain such a condition. In their opinion, Judges Todd,
Bender and Colville of the Superior Court framed the issue
as follows: Is a reasonableness requirement implicit in a contract where such criterion is not explicitly stated? The
Superior Court answered its own question in the affirmative.
In making the determination that reasonableness is
implicit in any contract, the Superior Court primarily relied
on its 1981 decision of Duffy v. Gerst, 429 A.2d 645, 650 (Pa.
Super. 1981). In Duffy, the Superior Court explicitly held
that, “It may be assumed that implicit in this provision is the
condition that the attorney’s fee must be a reasonable fee.”
Duffy, 429 A.2d at 650. Judge Robert E. Colville dissented
from the majority opinion, finding that although he agreed
that reasonableness could be implied into the enforcement
provision, he emphasized that a trial court did not have the
authority to make a sua sponte determination of what is rea(continued on Page 19)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 18)
sonable. Rather, the breaching party must make a specific
objection to the fees claimed.
SUPREME COURT DECISION
Following the Superior Court’s decision, wife filed a
Petition for Allowance of Appeal to the Pennsylvania
Supreme Court. The Supreme Court granted review of wife’s
first alleged error: Wife argued that the lower courts erroneously implied a reasonableness requirement into the
Agreement when the “plain language” of the enforcement
provision states that the breaching party will be responsible
for all counsel fees and costs incurred by the non-breaching
party to enforce his or her rights under the Agreement. In her
Petition, wife had also alleged that if the Supreme Court
determined that the lower courts appropriately implied the
term reasonableness into the Agreement, then the trial court
erred in failing to conduct a hearing regarding whether the
fees incurred by wife were, in fact, reasonable. However, the
Supreme Court declined to address wife’s second issue in its
Opinion.
The Supreme Court determined that reasonableness is an
implicit requirement in any contract. In making this determination, the Supreme Court first examined wife’s argument
that that the plain language of the Agreement controls and,
thus, a reasonableness requirement could not be inserted
therein. In support of her position, wife cited two Superior
Court decisions, Creeks v. Creeks, 619 A.2d 754 (Pa. Super.
1993) and Profit Wize Marketing v. Wiest, 812 A.2d 1270 (Pa.
Super. 2002). Wife argued that both decisions stand for the
proposition that a court may not imply reasonableness into a
contract because the plain language of the contract is the
“best indication of the parties’ intent.” Id. at 773 (quoting
Creeks, 619 A.2d at 756). Wife further explained that as the
“plain language” of the enforcement provision provides that
the breaching party is responsible for all counsel fees
incurred by the non-breaching party, then whether those fees
are reasonable is not for the court’s determination. In short,
the breaching party must pay all fees incurred, whatever the
amount.
The Supreme Court, per Justice Baer, who accomplished
an extraordinarily detailed analysis of the nations’ rulings
regarding the counsel fee issue, determined that wife’s
reliance on the Creeks and Profit Wize Marketing decisions
was misplaced. The Supreme Court explained that these
cases only provide support to the general proposition that the
plain language of a contract is paramount when determining
the parties’ motives for executing such an Agreement.
Rather, these cases do not support wife’s narrower position
that reasonableness can not be implied into a contract. In
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
fact, the central dispute in both Creeks and Profit Wize
Marketing was not the reasonableness of the non-breaching
party’s counsel fees, but whether the alleged breaching party
had violated the Agreement at all. The Court also noted that,
unlike the instant Agreement, reasonableness was, in fact, a
stated criterion in the Creeks contract. Thus the Supreme
Court found both the Creeks and Profit Wize Marketing decisions to be, “neither inconsistent nor relevant to the issues in
this case.” Id. at 775.
After finding that Creeks and Profit Wize Marketing
were not applicable to the instant matter, the Supreme Court
turned to the central questions at bar: Can a court find that a
contractual provision regarding counsel fees require that the
claimed fees be reasonable when the contract does not contain such criterion? And, if the answer to this first question is
in the affirmative, does a court have the authority and/or obligation to question the reasonableness of those fees?
As the Superior Court had done, the Supreme Court also
answered its own questions in the affirmative. The Supreme
Court held as follows:
The dispute in this case concerns the trial court’s
authority to address the reasonableness of the attorney fees claimed. Wife, and a minority of courts
across the country, would read the plain language of
the contract to require any and all fees incurred by
the non-breaching party to be payable by the
breaching party. We cannot accept this reading,
however, because the potential for abuse is too high.
If we were to forbid a reasonableness inquiry by a
trial court, there would be no safety valve and
courts would be required to award attorney fees
even when such fees are clearly excessive. Instead,
we join the majority of our sister states in finding
that parties may contract to provide for the breaching party to pay the attorney fees of the prevailing
party in a breach of contract case, but that the trial
court may consider whether the fees claimed to
have been incurred are reasonable, and to reduce the
fees claimed if appropriate.
Id. at 776-77 (footnotes omitted).
After finding that the term reasonableness must be
implied when evaluating a claim for counsel fees, the
Supreme Court declined to address the issue of whether the
fees claimed in this case were reasonable. However, the
Court did acknowledge that its decision inadvertently resulted in the affirmation of the trial court’s award of $1,200 to
wife.
Justice Todd did not participate in the consideration or
decision of this case. Justices Eakin and McCaffrey joined
Justice Baer in the majority opinion. Justice Saylor con(continued on Page 20)
19
CASE NOTES
(continued from Page 19)
curred in the result but dissented with regards to the opinion’s sweeping rule. Justice Castille also dissented, making
the decision 4-2 in favor of making this holding the rule in
Pennsylvania.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
The majority of the Pennsylvania Supreme Court has
made its opinion indelibly clear: the concept of reasonable-
ness is implied in all counsel fee provisions of matrimonial
agreements. If the parties had intended different they would
have written “all counsel fees, cost and expenses, not just
reasonable counsel fees, costs and expenses.” Justice Baer’s
majority opinion and Chief Justice Castille’s dissenting opinion both provided professorial analyses of the opinions
throughout the country. The Pennsylvania Supreme Court
has sided with the majority of the states in its ruling.
i
The trial court determined that husband owed wife a
total of $792.12 in unpaid pension benefits and child
support. Wife did not appeal this decision.
PENNSYLVANIA SUPERIOR COURT ABOLISHES EVIDENTIARY
PRESUMPTION RELATING TO SAME-SEX RELATIONSHIPS IN CUSTODY
AND AFFIRMS THE BEST INTEREST STANDARD
BY CAROLYN R. MIRABILE, ESQ.
M.A.T. v. G.S.T. ___A.2d___ (Pa. Super 2010)
In M.A.T. v. G.S.T., the Superior Court comprised of
Ford Elliott, P.J., Musmanno, Bender, Bowes, Panella,
Donohue, Shogan, Allen, J.J.1 vacated the Dauphin County
judge’s order dated Aug. 11, 2008, and remanded for entry of
a custody order granting mother’s petition for modification
of the custody order. The Superior Court in M.A.T. also overruled its prior holdings and reasoning in Constant A. v. Paul
C.A., Pascarella v. Pascarella and Barron v. Barron and concluded a homosexual parent does not bear a special evidentiary presumption in a child custody case. A concurring and
dissenting opinion (Shogan and Allen, J.J.) agreed on the
legal standards applied by the majority but dissented with the
disposition of the case.
FACTS AND PROCEDURAL HISTORY
M.A.T. (mother) and G.S.T. (father) were married
September 1993. The parties adopted a daughter in 2004 as
an infant. In February 2006, mother advised father she had
been involved in a same-sex relationship with a friend since
October 2004. In October 2006, mother filed for divorce and
shared physical custody of daughter.
Carolyn R. Mirabile is a Founding Partner in the Norristown
firm of Lynch & Mirabile, L.L.P. She was a past member of
the Pennsylvania Bar Association Family Law Section
Council. She is also an active member and Past President of
the Montgomery Bar Association Family Law Section and an
active member of the Pennsylvania Bar Association Family
Law Section.
20
The parties jointly hired Deborah L. Salem to conduct a
custody evaluation. Salem recommended shared physical
custody to both parents on a rotating “3-2-2-3” schedule.
Salem also testified that it would take daughter approximately 12 to 18 months to adjust to her parents’ separation.
After a hearing, the trial court ordered the “3-2-2-3”
schedule for a period of 18 months during the transition period. After the 18-month period, father was granted primary
physical custody of daughter and mother was granted every
other weekend, shared holidays and six weeks during the
summer. Neither party filed an appeal to the May 30, 2007
Order.
On March 3, 2008, mother filed a petition for modification of the May 30, 2007 order. Mother requested Salem provide an updated report. Salem testified the “3-2-2-3” schedule was in daughter’s best interest. Father testified it was in
daughter’s best interest if he had primary physical custody.
The appellate standard of review in custody cases is an
abuse of discretion. Prior case law held once the heterosexual parent established a homosexual relationship by the other
parent, the homosexual parent would have the burden of
proving that exposure to the homosexual relationship would
have no adverse effect on the children. See Constant, 496
A.2d 1 (Pa. Super. 1985). The M.A.T. Court overruled this
evidentiary presumption and stated the burden of proof is
shared equally by both parents in determining the best interest of the child in custody cases. The M.A.T. Court also held,
although a trial judge is permitted to reject expert testimony
in a custody case, the findings by the trial judge must be supported by evidence on the record. Moreover, a court must
(continued on Page 21)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 20)
consider four factors in determining whether to grant shared
physical custody. Yates v Yates, 963 A.2d 535 (Pa. Super.
2008).
Superior Court Judge Donohue noted in M.A.T. that preconceptions and prejudices about a homosexual household
have no place in custody cases. The trial court admitted
mother’s lesbian relationship played a role in the decision to
award primary physical custody to father. The trial court also
stated that mother failed to show her homosexual relationship would not have an adverse affect on her child and that
the child’s best interests would be served by placing her in a
heterosexual home.
The Superior Court in M.A.T. noted in its opinion, in
rejecting Salem’s recommendation, the trial court made its
determination based on the trial judge’s own personal beliefs
not supported by evidence on the record; “… it’s based upon
my many years on the bench, my own personal experience as
a parent, a grandparent, a foster parent.” The Superior Court
noted the trial court abused its discretion when the trial court
held the best interests of school-aged children are served in a
primary physical custodial relationship. More importantly,
Salem testified if she had to choose a primary custodian, she
would have chosen mother.
Since the trial court did not agree with Salem’s recommendation, the Superior Court noted that the trial court failed
to show any evidence on the record that supported a finding
it was in daughter’s best interest if father were granted primary physical custody. The lower court failed to cite any evidence in the record to support its finding that “[s]he needs
constancy in routines … matters of discipline, chores, personal hygiene. … Daughter’s best opportunity to thrive
socially and academically will be far better served by living,
at least during the school week, in a single place.” On the
contrary, the evidence showed daughter was doing well academically and had adjusted to the custody schedule. Salem
had also testified, “[Daughter] would suffer from significant
absence from one or the other of them.”
The Superior Court also decided the case on its merits,
to avoid delay, and granted mother shared physical custody.
The court held there was evidence on the record to support
the finding that 1) both parents were fit, capable of making
reasonable child-rearing decisions and willing and able to
provide love and care for the child; 2) both parents evidenced
a continuing desire for active involvement in the child’s life;
3) the child recognized both parents as a source of security
and love; and 4) a minimal degree of cooperation between
the parents was possible and therefore, shared physical custody was appropriate in this case.
Although the concurring and dissenting opinion written
by Judge Shogan and joined by Judge Allen agreed that the
proper legal standards were not applied by the trial court, the
concurring and dissenting opinion believed the trial court
was in a better position to determine the best interests of the
child. Judge Shogan believed that the case should have been
remanded to allow the trial court to apply the correct standards and determine whether it was in the best interest of the
child to grant mother shared physical custody.
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
It is interesting to note that the Superior Court was concerned that daughter would have to transition from the partial physical custody schedule with mother back to the shared
physical custody schedule. As such, the court wanted no further delay in changing the custody schedule and immediately entered an order on the merits of the case and awarded
mother shared physical custody. The Superior Court also
took note in abolishing all of its presumptions in custody
cases. A reaffirmation that courts must consider the best
interest of the child in making its determination. The
Superior Court’s decision also provides guidance in the use
of expert testimony and the circumstances under which
shared custody should be ordered.
1
Judge Orie Melvin did not participate in the consideration or decision of this case.
Photos from the PBA Family Law Section
2010 Winter Meeting on page 58!
See MANY more past and present photos by visiting
the Family Law Section area of the PBA Web site!
Just go to www.pabar.org/public/sections/famco/meetings.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
21
GRUBER TEST NOT CONTROLLING WHERE CHILDREN RELOCATED
PURSUANT TO EARLIER ORDER
BY ELIZABETH H. CEPPARULO, ESQ.
R.M.G., JR. v. F.M.G.,
986 A.2d 1234 (Pa. Super. 2009)
FACTUAL AND PROCEDURAL HISTORY
R.M.G., Jr. (father) and F.M.G. (mother) conceived two
children, born in 1999 and 2000, during their marriage. The
parties divorced in 2004. When mother and father originally
separated, they lived only a few miles away from one another. At that time, mother agreed to allow father primary physical custody of the children so they could finish the school
year in their current school. At a subsequent Master’s hearing, the parties agreed that father would (1) retain primary
custody of the children; and (2) relocate almost two hours
away. Upon mother’s petition to modify, a hearing was conducted. The trial court issued an order maintaining shared
legal and physical custody. However, the Westmoreland
County Judge awarded mother more custodial time and
ordered father to bear the majority of the transportation obligation. Father appealed.
ISSUES ON APPEAL
Father raised six issues on appeal, asserting the trial
court erred: (1) in finding that a substantial change in circumstances existed to justify the modification; (2) in finding
that the best interest of the children were served; (3) in failing to find that the best interests of the children was served
by maintaining the status quo; (4) in failing to give positive
consideration to father’s history as the children’s primary
caretaker; (5) by requiring father to bear the majority of the
transportation responsibilities; and (6) in failing to transfer
venue or jurisdiction.
LEGAL ANALYSIS
The Pennsylvania Superior Court (Musmanno, Bender
& Cleland, JJ), held that the trial court did not abuse its discretion to affirm the order. However, the court noted its “disagreement” with the trial court’s legal analysis. Specifically,
the Superior Court found that the trial court placed inappropriate weight on Ferdinand v. Ferdinand,i and improperly
applied a Gruberii test in reaching its conclusion.
Elizabeth H. Cepparulo is an Associate in the Doylestown firm
of Williams & Hand, P.C. and a member of the Family Law
Sections of the ABA, PBA and Bucks County Bar Association.
22
Judge Cleland, for the Pennsylvania Superior Court,
criticized the trial court’s reliance on Ferdinand, which it
deemed inapposite precedent. In Ferdinand, the trial court
denied mother’s petition to relocate to Michigan with her
two children of different fathers, instead awarding custody
to each of the two fathers. The Superior Court reversed for
failure to consider the impact of separating siblings.
Ferdinand, 763 A.2d at 823-24. The court in the current
matter distinguished Ferdinand, finding that this case
involved siblings who never lived together. It rejected the
trial court’s reliance upon Ferdinand as precedent.
Additionally, the court disapproved of the trial court’s
reliance on the Gruber test. It noted that a Gruber analysis
is necessary only when a parent requests to relocate with
the children. In the instant case, mother had already agreed
to father’s relocation with the children.
Notwithstanding the aforementioned displeasure with
the trial court’s reasoning, the court rejected all six of
father’s contentions on appeal. Father’s first assertion, that
the court erred by modifying an order where there was no
significant change in circumstances, was rejected outright
by the court. Citing the Custody and Grandparents’
Visitation Actiii and Karis v. Karis,iv the court reaffirmed
that a change in circumstances is not a prerequisite to a custody modification, but rather the standard is the best interest of the child.
The court next determined that although a change in
circumstance is not a prerequisite modification, it is still an
important consideration. In the instant matter, the children
expressed a desire to spend more time with mother and the
trial court correctly examined this fact. The court failed to
explicitly address father’s third contention although it held
that the trial court conducted a proper best interest analysis.
Father’s fourth contention was rejected by the court, noting
that father’s role as primary caregiver was addressed, as the
children remained primarily in the care of their father.
The court found no abuse of discretion in the trial
court’s decision to assign the transportation duties primarily to father. Lastly, the court denied father’s assertion that
the trial court improperly retained venue and jurisdiction
after he moved to Altoona. Specifically, the court found
that he waived his opportunity to preserve the issues for
appeal and, regardless, the trial court was correct in hearing
the matter.
(continued on Page 23)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 22)
CASE NOTE AUTHOR’S EDITORIAL COMMENTS
The most significant practice tip derived from this case
is that an agreement to relocate is treated differently upon a
petition for modification than an original request to relocate.
Specifically, the Superior Court clearly stated that a Gruber
test is not necessary when a previously agreed relocation is
before the court. Further, a Ferdinand analysis is likewise
inapposite where half-siblings have never lived under the
same roof. Lastly, the court reaffirmed that a change in circumstances is not required for modification but that the
entire analysis centers on the best interest of the child. While
this may include many of the concepts with which we are
familiar (i.e., changes in circumstances, primary caregivers,
maintaining the status quo), the ultimate issue remains the
best interest of the children.
i
ii
iii
iv
763 A.2d 820 (Pa. Super. 2000).
Gruber v. Gruber, 583 A.2d 434 (Pa. Super. 1990) (setting forth a three-part test for consideration by trial
courts in relocation cases).
23 Pa. C.S.A. § 5301.
544 A.2d 1328, 1332 (Pa. 1988) (stating that “a petition
for modification of a partial custody to shared custody
order requires the court to inquire into the best interest
of the child regardless of whether a ‘substantial’ change
in circumstances has been shown”).
SOCIAL SECURITY DERIVATIVE BENEFITS CAN BE SUBJECT
TO LEGAL PROCESS UNDER 42 U.S.C.A. §659
BY JONATHAN T. HOFFMAN, ESQ.
SILVER V. PINSKY (731 MDA 2007)
On Sept. 15, 2009, the Superior Court, in an en banc
decision, written by Judge Gantman, affirmed the Order of
the Dauphin County Court of Common Pleas, inasmuch as it
subjected Social Security derivative benefits to be subject to
legal process under 42 U.S.C.A. §659 to enforce a child support obligation. Additionally, the Superior Court found that
the lower court erred in eliminating a parent’s support obligation altogether when the parent had means to reasonably
support some of the children’s needs.
FACTS
Mother and father were married in 1991 and separated in
1998. At the time the opinion was written, the children were
16 and 13 years old respectively. Father was 69 years old and
receiving Social Security benefits from which the parties’
children were receiving derivative benefits. Through the end
of November 2006, mother was the representative payee of
the Social Security derivative benefits of $1,128 per month.
Under Pa.R.C.P. 1910.16-4, the benefits were properly
included in the support calculation that determined the parties’ support Order. In addition, until Dec. 31, 2006, mother
was the children’s primary physical custodian.
Jonathan T. Hoffman is an Associate in the Norristown firm
of Weber Gallagher Simpson Stapleton Fires & Newby, LLP,
a member of the Montgomery County Bar Association Family
Law Section and a member of the PBA Family Law Section.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
As of Jan. 1, 2007, the parties began to equally share
physical custody of the children and as of Dec. 1, 2006,
father became the representative payee of the Social Security
benefits.
On Dec. 5, 2006, father filed a Petition to Terminate the
parties’ May 18, 2006 support Order. Father’s Petition was
based on the parties’ agreement to share physical custody as
of Jan. 1, 2007.
On Dec. 12, 2006, mother filed a Petition to Increase
Support due to father’s alleged increased income or earning
capacity and her increased expenses for the children.
At the Domestic Relations conference on mother and
father’s Petition, two separate Orders were entered: The first
was from Dec. 12 through Dec. 31, 2006, and the second was
from Jan. 1, 2007, and prospectively. Both Orders required
father to pay varying amounts of support to mother for the
children.
Both parties sought de novo review of the conference
officer’s recommendations and a hearing was subsequently
held on April 5, 2007. At the hearing, father argued that
mother should be attributed a higher earning capacity for
purposes of calculating child support and mother’s primary
concerns were how to address the Social Security benefits
that father was now the representative payee of. Further,
mother argued that father’s earning capacity should be
increased and asked the court to include certain additional
expenses in the Support Order as mother was routinely hav(continued on Page 24)
23
CASE NOTES
(continued from Page 23)
ing difficulty getting father to reimburse her for his share of
the children’s additional expenses.
Upon conclusion of the hearing, the lower court stated
on the record that given the unique Social Security derivative
benefits issue and that fact that custody was shared on a 5050 basis, the court would set father’s basic child support obligations and arrears at zero as of Jan. 1, 2007. Father was also
directed to pay mother an amount equal to one-half of the
$1,164 in Social Security derivative benefits he receives for
the two children, or $582 per month, to prevent father from
receiving a “windfall” as the representative payee.
The court explained that the Order was meant to treat the
parties identically, including their incomes. In addition to the
splitting of the benefits, each party was responsible for onehalf of the children’s extra-curricular activities and the cost
of medical insurance.
Following the trial court’s Order, father filed a timely
Notice of Appeal on April 27, 2007. On April 4, 2008, a
panel of the Superior Court, with one judge dissenting, determined the trial court has erred in directing father to split the
monthly Social Security derivative benefits of $1,164 after
setting father’s basic support obligation at $0. The panel
vacated the Order in part and remanded the matter for a new
determination of father’s support obligation. Father subsequently requested re-argument and on May 30, 2008, the
Superior Court grated father’s request, withdrew its panel
decision and directed the case to be listed for an en banc
panel.
Prior to the en banc argument, both parties submitted
substitute briefs, father raised eight issues on appeal. While
six of father’s eight issues were dismissed or moot, the following issues were addressed by the Superior Court:
1. Whether the trial court had subject matter jurisdiction to
award to mother, effective Jan. 1, 2007, half the Social
Security check that father receives as representative payee
for the children and/or to add to the arrears an amount
equal to the children’s December Social Security check?
2. In the alternative, whether the trial court abused its discretion by awarding mother, effective Jan. 1, 2007, $582
monthly, equal to one-half the Social Security check that
father receives as the representative payee for the children and by adding to the arrears $1,164, an amount
equal to the children’s December Social Security derivative benefits?
Father’s initial issue centers on whether the lower court
had subject matter jurisdiction to alter the Social Security
Administration’s decision to make father the representative
payee and require him to split the benefits with mother.
Father argues that federal courts have exclusive subject mat-
24
ter jurisdiction to review Social Security Administration
decisions.
Father additionally argues that even if the lower court
had jurisdiction, that their division of his benefits constitutes
legal process as defined by 42 U.S.C.A. §407(a)-(b). In making this argument, father relies on the notion that “protected
funds such as benefit payments under the supplementary
security income program cannot be reached through legal
process.” Tunnicliff v. Commonwealth Department of Public
Welfare, 396 A.2d 1168, 1171 (1978).
In opining on father’s issue regarding subject matter
jurisdiction, the court observed that, “Subject matter jurisdiction relates to the competency of a court to hear and decide
the type of controversy presented. Jurisdiction is a matter of
substantive law.” 42 Pa. C. S. §931(a)
The court went on to say that, “The trial court has jurisdiction if it is competent to hear or determine controversies
of the general nature of the matter involved sub judice.
Jurisdiction lies if the court had power to enter upon the
inquiry, not whether it may ultimately decide that it could not
give relief in the particular case.” Drafto Corp. v. National
Fuel Gas Distribution Corp. 806 A.2d 9,11 (Pa. Super 2002.)
(quoting Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568
(Pa. Super 2001)
The court found that with regard to father’s jurisdictional challenge, the central issue before the court was child support. The court was not asked to review or alter the Social
Security Administration’s decision with regard to father’s
designation as alternative payee and accordingly, the issues
raised regarding child support were properly before the
lower court and did not offend the law surrounding subject
matter jurisdiction.
The court additionally addressed father’s legal process
issue under the Social Security Act and noted that Section
659 of the Social Security Act provides an exception to the
general prohibitions contained in Section 407. This exception allows otherwise protected funds to be reached through
legal process to enforce “the legal obligation of an individual
to pay child support.” See U.S.C.A. §659(a). Accordingly,
father’s argument regarding legal process is overridden by
the carved out exception of §659(a).
Father next argues that by not complying with the procedure laid out in Pa.R.C.P. 1910.16-5(b), which requires the
court to consider nine factors before deciding to deviate from
the guideline amount of support, that the trial court abused its
discretion. Pursuant to this argument, father concedes that
the Social Security benefits could arguable by considered
“other income in the household” pursuant to 1910.16-5(b),
however, in the present case the court did not consider any of
the other factors including mother’s new husband’s income
and the monies mother could earn if she worked full time.
(continued on Page 25)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
CASE NOTES
(continued from Page 24)
In response to father’s argument, the court found that the
lower court judge under the rules and prevailing case law has
reasonable discretion to deviate from the guidelines if the
record supports the deviation. Ricco v. Novitski, 874 A.2d 75,
82 (Pa. Super. 2005).
The court went on further to state, “In a support guidelines case, once the court has properly consulted the guidelines, it has the discretion to deviate from the guidelines figure, as long as the court provides adequate reasons for the
deviation.” Landis v. Landis, 691 A.2d 943 (Pa. Super. 1997).
The above cases must be tempered with the notion that,
“The court has no legal authority to eliminate an obligor’s
support obligation where the obligor can reasonably provide
for some of the children’s needs.” Ricco, supra at 83.
In applying the law, the Superior Court found that while
mother was representative payee, the benefits under the support guidelines, were used to reduce father’s support obligation, not eliminate it, so that the children continued to benefit from their mother’s receipt of the derivative benefits. Now
that the parties share physical custody equally and father is
the recipient of the benefits, the court found that it was an
error of law for the trial court to simply eliminate consideration of the guidelines and split the derivative benefits
between the parties, especially in light of the fact that no adequate reason as provided to justify the deviation.
Accordingly, the part of the Order that set father’s support
obligation at zero and split the derivative benefits was vacated and the matter was remanded to the trial court for a guidelines calculation and then a potential deviation for husband’s
receipt of the Social Security derivative benefits.
This resolution allows the court to achieve their stated
intention for the children to benefit from their Social Security
derivative payments regardless of whether they live with
mother or father.
INDEX TO PENNSYLVANIA FAMILY LAWYER
VOLS. 1-20 (1980-98)
viii, 112p; 8 1/2 x 11; cloth binding
All cases (with proper citations), articles cross-indexed by name and subject matter
Prepared by and available from:
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Duquesne University Center for Legal Information: Allegheny County Law Library
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PENNSYLVANIA FAMILY LAWYER
MARCH 2010
25
Articles and Comments:
Harry M. Byrne, Esq., Co-Editor, hbyrne@byrnelaw.net
Benjamin E. Orsatti, Esq., Co-Editor, borsatti@pbkg.net
CHANGES TO PA. SUPPORT GUIDELINES AFFECT HIGH-INCOME
CHILD, SPOUSAL SUPPORT OBLIGATIONS
BY ANDREW D. TAYLOR, ESQ.
On Jan. 12, the Pennsylvania Supreme Court adopted
amendments to the Pennsylvania Support Guidelines. The
most significant change contained in the amendments, which
go into effect on May 12, deals with how high-income child
support obligations are calculated by eliminating the longstanding needs-based analysis of Melzer v. Witsberger, 505 Pa.
462, 480 A.2d 991 (1984). Under the amendments, highincome cases will be determined as all other child support
cases are: based on a predetermined guideline amount of basic
child support, without regard to the actual need of the parties.
Other changes have been made that seem to suggest
potentially increasing support from parents who have little or
no contact with a child and limiting spousal support and
alimony pendente lite payments in short-term marriages.
HIGH-INCOME CASES
Currently, if the parties’ combined net monthly income
exceeds $20,000 per month, the obligor spouse’s child support obligation is calculated pursuant to Melzer. This requires
a tedious analysis of each party’s “income available for support,” or the party’s net income less that party’s reasonable
expenses. Next, an analysis is performed of each parent’s reasonable expenses for the children while in their care.
Naturally, much litigation focuses around the veracity of
each party’s purported expenses and whether these expenses
Harry M. Byrne Jr. is the Founder of the Law Office of Harry
M. Byrne Jr. in Bala Cynwyd, Past Chair of the Pennsylvania
Bar Association Family Law Section and Articles/Comments
Co-Editor of the Pennsylvania Family Lawyer. Benjamin E.
Orsatti is an Associate in the Pittsburgh firm of Pollock Begg
Komar Glasser LLC, a member of the Family Law Sections
of the PBA and Allegheny County Bar Associations and
Articles/Comments Co-Editor of the Pennsylvania Family
Lawyer.
26
are “reasonable.” In a Melzer case, each party is required to
submit a comprehensive statement of expenses detailing his
or her total monthly expenses, broken down by expenses for
that party alone and expenses solely for the children. The parties must also submit voluminous documentation substantiating these expenses, which usually includes bank statements,
credit card statements, receipts and the like. Not only does the
implementation of Melzer vary from county to county, but litigating a Melzer case is time-consuming and costly.
Under the amendments to the guidelines, Melzer is abandoned altogether. High-income cases are now subject to Rule
1910.16-3.1, which first provides that “high-income” cases
are defined as those where the parties’ combined net monthly income exceeds $30,000 (increased from $20,000 in the
current guidelines). Cases that do not meet the $30,000
threshold are decided as any other case and the basic child
support schedule in Rule 1910.16-3 has been increased to
provide support figures for families with combined net
monthly incomes up to $30,000 (the support figures for combined net monthly incomes less than $20,000 have also been
amended “to reflect updated economic data”).
Rule 1910.16-3.1 contains a novel three-step process to
determine support obligations in high-income cases. First, a
formula is applied that essentially extrapolates a basic support obligation amount from the support schedule based on a
set percentage of the combined net monthly income amount
above $30,000 per month and the number of children (i.e. 6.5
percent for one child). For example, if the father’s net monthly income is $50,000 and the mother’s net monthly income is
(continued on Page 27)
Andrew D. Taylor is an Associate in the family law practice
group at Weber Gallagher Simpson Stapleton Fires & Newby
LLP in Norristown.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ARTICLES AND COMMENTS
(continued from Page 26)
$10,000, the father’s basic support obligation for one child is
calculated as follows:
$50,000
Father’s Net Monthly Income
(83% of the combined Net Monthly Income)
+$10,000 Mother’s Net Monthly Income
(17% of the combined Net Monthly Income)
$60,000 Combined Net Monthly Income
$2,756
Presumptive Minimum Amount of Basic
Support for One Child
(Per Rule 1910.16-3.1(a)(1))
+ $1,950 6.5% of Combined Net Income Above $30,000
Per Month ($30,000 x 6.5%)
(Per Rule 1910.16-3.1(a)(1))
$4,706 Basic Support for One Child
x 83% Father’s Percentage Share of Parties’
Combined Net Monthly Income
$3,905 Father’s Basic Support Obligation.
The second step requires that the trier of fact shall make
any applicable allocations of additional expenses under Rule
1910.16-6. These “adjustments” include the allocation of
child care, health insurance premiums, unreimbursed medical expenses and private school tuition. This rule also
includes a potential adjustment for the spouse living in the
marital residence and paying the mortgage on the residence;
this “mortgage adjustment” has been amended slightly to
make clear that it applies only during the pendency of the
divorce litigation and not after a final award of equitable distribution has been made. Thus, in keeping with the example
above, if the parties’ child were in private school at a cost of
$1,000 per month, the father would be responsible for 83 percent of that amount, and an additional $830 would be added
to the father’s obligation of $3,905 for a total of $4,735.
The final step states that the trier of fact “shall” consider
the deviation factors in Rule 1910.16-5, which include among
others, unusual needs and fixed obligations of the parties,
other support obligations of the parties, other income in the
household, relative assets and liabilities of the parties, medical
expenses not covered by insurance and, in spousal support or
alimony pendente lite cases, the length of the marriage.
The final two steps explained above have long applied to
support cases decided under the guidelines. However, while
the adjustments under Rule 1910.16-6 are routinely made by
support masters and judges, the deviation factors in Rule
1910.16-5 are rarely applied to increase or decrease a support
award. The amendments state that the trier of fact “shall”
consider these deviation factors in high-income cases and
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
shall make findings of fact on the record or in writing regarding the same. The existing language in Rule 1910.16-5
requires only that a trier of fact shall consider the deviation
factors in deciding whether to deviate from the guideline
amount of support. Further, the Explanatory Comment
requires the parties to submit income and expense statements
(and substantiating documentation) in order to enable the
trier of fact to consider the deviation factors. It therefore
seems apparent that support masters and judges will be
required to consider these factors in reaching a final amount
of support in high-income cases.
Under the new Rule 1910.16-3.1, no mention is made
about an adjustment in the award if the obligor has the children for 40 percent or more of the overnights per Rule
1910.16-4(c). However, when read in conjunction with the
amendments to Rule 1910.16-4(a) that the formula in Rule
1910.16 shall be used to calculate the obligor’s support obligation in high-incomes cases, it seems that an adjustment
will be made if the obligor has the children for 40 percent or
more of the overnights. This is a change for high-income
obligations since no adjustment for substantial physical custody is permitted in a Melzer analysis.
LIMITED CONTACT WITH CHILD
No changes have been made to Rule 1910.16-4(c),
which reduces an obligor’s child support obligation when
that parent has the children for 40 percent or more of the
overnights. The amendments make clear, however, that the
new monthly basic support schedule figures were increased
to reflect not only the updated economic data, but the
assumption that the children spend 30 percent of their time
with the obligor and that the obligor makes direct expenditures on behalf of the children during that time.
New language has been added in the explanatory comment to Rule 1910.16-4 that an upward deviation should be
considered in cases where the obligor has little or no contact
with the children and a downward deviation should be considered where the obligor incurs substantial fluctuating
expenses during parenting time, but has infrequent overnights with the child. This theory, while perhaps implicit in
the existing guidelines, has been made clear, and the potential for a deviation has been carved out for those who do not
fall neatly into this assumption. Unfortunately, no guidance
is given as to how to apply this deviation and how or when a
support award should be modified in this scenario.
SPOUSAL SUPPORT AND
ALIMONY PENDENTE LITE
No major changes have been made to the rule providing
for the calculation of spousal support and alimony pendente
lite. In both high-income and other cases, spousal support
(continued on Page 28)
27
ARTICLES AND COMMENTS
(continued from Page 27)
and alimony pendente lite will still be calculated by multiplying the difference of the parties’ net monthly incomes by 30
percent if there are dependent children and 40 percent if there
are no children. Accordingly, Pennsylvania remains the only
state in the country (and one of only a handful of jurisdictions) to use a rigid formula to calculate temporary spousal
support as opposed to considering the actual need of the
dependent spouse.
In high-income spousal support and alimony pendente
lite cases, Rule 1910.16-3.1(b) now requires the trier of fact
to consider the deviation factors in Rule 1910.16-5 before
reaching a final award. The length of marriage is still a deviation factor in considering a potential adjustment of the
amount of a spousal support or alimony pendente lite award.
However, the language in Rule 1910.16-5 dealing with the
length of marriage as a consideration in limiting the duration
of a spousal support or alimony pendente lite award has been
moved to Rule 1910.16-1(c). This rule now states that, in
determining the duration of an award for spousal support or
alimony pendente lite, the trier of fact shall consider the
length of the marriage from the date of marriage to the date
of final separation.
The new Explanatory Comment reiterates that the purpose of this provision is to prevent the unfairness that arises in
a short-term marriage when the obligor is required to pay support over a substantially longer period of time than the parties
were married and there is little or no opportunity for credit for
these payments at the time of equitable distribution. Despite
this language having been included in Rule 1910-16.5 in the
past, few support masters and judges limit the duration of
spousal support and alimony pendente lite awards or terminate
these awards after significant periods of time. Perhaps now,
with this language being removed as a deviation factor and
included in Rule 1910.16-1(c), this practice may be changed.
Indeed, the most significant change in this round of
amendments affects high-income individuals and the shift
away from Melzer. While the new guidelines certainly streamline the determination of child support obligations in highincome cases and will save countless hours and counsel fees, a
mechanical application of the guidelines cannot be and was
never intended to be the only answer. Fair support awards will
be achieved only if the guideline amount of support is used as
a starting point and the deviation factors are consistently considered and applied. Regardless, on May 12, any litigant whose
child support obligation was determined under Melzer would
be well served to consider filing a petition to modify his or her
obligation after comparing his or her current order against the
obligation produced by new Rule 1910.16-3.1.
THE UNIFIED FAMILY COURT
BY ADMINISTRATIVE JUDGE DAVID N. WECHT
Beginning Jan. 25, the Fifth Judicial District’s Family
Division, having expanded from 13 to 15 judges, launched a
Unified Family Court (UFC). This initiative is designed to
promote and implement the “One Judge, One Family” concept
as a best practice reality for our court and the people it serves.
The Unified Family Court also promotes cross-training and
cross-competencies for our judges and bridges the divide
between adult and juvenile judicial cultures.
Each judge is now able to hear, and will hear, all types of
cases. The judges are divided into five teams of three judges
each. Each judge is now designated as either Unified Juvenile
(UJ), Unified Adult (UA) or 50/50. Each of the five teams has
one judge from each category. This designation determines
what types of cases each judge will hear most often. The five
UJ judges will focus mostly on dependency and delinquency
issues but will hear domestic relations matters as well. The
Hon. David N. Wecht is the Administrative Judge of Court of
Common Pleas of Allegheny County, Family Division. The
views expressed herein are those of the author.
28
five UA judges will focus mostly on divorce, support, custody
and protection from abuse (PFA) matters but will hear dependency and delinquency matters as well. The five 50/50 judges
will split their time relatively equally between all matters.
This new model will allow each Family Division judge to
maintain his or her supervision of a case no matter what path
that case follows. A family will no longer need to appear
before multiple judges depending upon what issue the family
is attempting to resolve. The judge most familiar with each
case and family will be able to preside over all matters. Our
Family Division will promote and implement “One Judge,
One Family” and cross-competencies among our 15 judges
without sacrificing the individual expertise and experience
that judges have accumulated over time.
This UFC initiative will help to better serve families, a
goal that remains constant in our Division. It grows from a
consensus-driven collaboration among our Family Division
judges and draws upon both our experiences here in Allegheny
County and the “One Judge, One Family” best practice model
recognized nationwide.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ANALYSIS OF A SUPPORT CASE
BY DANA A. LEVINE, ESQ. AND BRIAN C. VERTZ, ESQ.
CASH FLOW FOR SUPPORT PURPOSES.
1. Statutory definition of income. 23 Pa. C. S. § 4302.
2. Rules definition of income. Pa. R.C.P. 1910.16-2.
FORM OF
CASH FLOW
WHERE ON
TAX RETURNS
CASE LAW
AUTHORITY
Advances – shareholder (corporate
distributions)
Schedule K-1, lines 20-21
Spahr v. Spahr, 105 P.D.D.R.R. 57
(2005), Diament v. Diament, 816 A.2d
256 (Pa.Super.2003); Heisey v. Heisey,
633 A.2d 211 (Pa.Super.1993)
Advances - partnership
Schedule K-1, lines 20-21
King v. King, 568 A.2d 627
(Pa.Super.1989)
Annuity income
Form W-2 or 1099
Arbet v. Arbet, 863 A.2d 34 (Pa. Super.
2004), 23 Pa.C.S. § 4302
Automobile expenses
Schedule C, line 10
Schedule E, line 6
S. Calabrese v. M. Calabrese, 682 A.2d
393 (Pa.Super.1996); Holland v.
Holland, 663 A.2d 768
(Pa.Super.1995); Heisey v. Heisey, 633
A.2d 211 (Pa.Super. 1993); DeMasi v.
DeMasi, 530 A.2d 871 (Pa.Super.1987)
Bonuses
Form W-2 or 1099
Woskob v. Woskob, 2004 WL 318566
(Pa.Super.2004); Blaisure v. Blaisure,
577 A.2d 640 (Pa.Super.1990);
Fitchorn v. Fitchorn, 533 A.2d 1388
(Pa.Super.1987)
Capital gains
Schedule D, lines 8, 14
23 Pa.C.S. § 4302; Riley v. Foley, 783
A.2d 807 (Pa.Super.2001); Coffey v.
Coffey, 575 A.2d 587 (Pa.Super.1990);
Ramsey v. Ramsey, 48 Chester Co.
L.Rep. 338 (2000).
Charitable or political
contributions
Schedule K-1, line 7
Coffey v. Coffey, 575 A.2d 587
(Pa.Super.1990)
(continued on Page 30)
Dana A. Levine, Esq., is an Associate in the Pittsburgh firm of Pollock Begg Komar Glasser LLC, and active in the Family Law
Section of the Allegheny County Bar Association. Brian C. Vertz, Esq., MBA, AVA, is a Partner in the Pittsburgh firm of Pollock
Begg Komar Glasser LLC, a Fellow in the AAML, active in the Family Law Section of the PBA and Allegheny County Bar
Association and publishes a Web site and blog devoted to business and financial issues in divorce at www.bvsource.com.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
29
ARTICLES AND COMMENTS
(continued from Page 29)
FORM OF
CASH FLOW
WHERE ON
TAX RETURNS
CASE LAW
AUTHORITY
Commissions
Form 1099
23 Pa.C.S. § 4302
Depreciation
Schedule C, line 13
Schedule E, line 21
Schedule K-1, line 8
Form 4562
Kraisinger v. Kraisinger, 928 A.2d 333
(Pa. Super. 2007), Labar v. Labar, 557
Pa. 54, 731 A.2d 1252 (1999), Labar v.
Labar, 644 A.2d 777 (Pa.Super.1994);
S. Calabrese v. M. Calabrese, 682 A.2d
393 (Pa.Super.1996); Holland v.
Holland, 663 A.2d 768
(Pa.Super.1995); McAuliffe v.
McAuliffe, 613 A.2d 20 (Pa.Super.1992)
23 Pa.C.S. §4302; Parker v. Parker,
335 Pa.Super. 348, 484 A.2d 168
(1984)
Disability income
Dividend income
Schedule B, line 5
Ney v. Ney, 917 A.2d 863 (Pa. Super.
2007), Dennis v. Whitney, 844 A.2d
1267 (Pa. Super. 2004) Baehr v.
Baehr,106 P.D.D.R.R. 28 (2005);
Portugal v. Portugal, 798 A.2d 246
(Pa.Super.2002); Myers v. Myers, 592
A.2d 339 (Pa.Super.1991); Rock v.
Rock, 560 A.2d 199 (Pa.Super.1989)
Earning capacity
Entertainment/meals
23 Pa.C.S. § 4302
Schedule C, line 24
DeMasi v. DeMasi, 530 A.2d 871
(Pa.Super.1987)
Gift income
Jacobs v. Jacobs, 884 a.2D 301
(Pa.Super.2005); Singleton v. Waites,
616 A.2d 644 (Pa.Super.1992)
Inheritance
23 Pa.C.S. § 4302; Drevenik v.
Nardone, 862 A.2d 635 (Pa. Super.
2004), Maher v. Maher, 575 Pa. 181,
835 A.2d 1281 (2003); Fitzgerald v.
Kempf, 805 A.2d 529 (Pa.Super.2003);
Humphreys v. DeRoss, 567 Pa. 614,
790 A.2d 281 (2001)
(continued on Page 31)
30
MARCH 2010
ARTICLES AND COMMENTS
(continued from Page 30)
FORM OF
CASH FLOW
WHERE ON
TAX RETURNS
CASE LAW
AUTHORITY
Insurance premiums - life
Schedule C, line 15
Schedule E, line 9
Heisey v. Heisey, 633 A.2d 211
(Pa.Super.1993); DeMasi v. DeMasi,
530 A.2d 871 (Pa.Super.1987);
Pearson v. Pearson, 49 Chest.Co.
L.Rep. 83 (2000)
Insurance premiums - malpractice
Schedule C, line 15
Schedule E, line 9
Chapman-Rolle v. Rolle, 893 A.2d 770
(Pa. Super. 2006), Holland v. Holland,
663 A.2d 768 (Pa.Super.1995)
23 Pa.C.S. §4302
Insurance proceeds
Interest income
Schedule B, line 1
23 Pa.C.S. §4302; S. Calabrese v. M.
Calabrese, 682 A.2d 393 (Pa.Super.
1996); Kessler v. Helmick, 672 A.2d
1380 (Pa.Super.1996)
Loan payments
See interest deductions on Schedules
A, C & E
Jayne v. Jayne, 663 A.2d 169
(Pa.Super.1995); Lehman v. Lehman,
636 A.2d 1172 (Pa.Super.1994)
Loans, proceeds of
Fitzgerald v. Kempf, 805 A.2d 529
(Pa.Super.2003)
Marital property - sale of
Donnelly v. Donnelly, 463 A.2d 1182
(Pa.Super.1983); Buehler v. Buehler,
431 A.2d 1059 (Pa.Super.1981)
Military housing allotment
Krankowski v. O’Neil, 928 A>2d 284
(Pa. Super. 2009), Alexander v.
Armstrong, 609 A.2d 183
(Pa.Super.1992); Bennethum v. Grundza,
93 Berks Co.Leg.J. 109 (2000)
Pension benefits
Form 1040, lines 15-16
23 Pa.C. S. § 4302
(continued on Page 32)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
31
ARTICLES AND COMMENTS
(continued from Page 31)
FORM OF
CASH FLOW
Pension contributions - employer
and employee
WHERE ON
TAX RETURNS
Form 1040, line 23
Form W-2, line 17
CASE LAW
AUTHORITY
Kessler v. Helmick, 672 A.2d 1380
(Pa.Super.1996); DeMasi v. DeMasi,
530 A.2d 871 (Pa.Super.1987)
(employer contribution), Szafran v.
Szafran, 344 A.2d 612 (Pa.Super.
1975), Murphy v. McDermott, 979
A.2d 373 (Pa. Super. 2009)
Perquisites - see also auto, entertainment, insurance
Arbet v. Arbet, 105 P.D.D.R.R. 16
(2005); Diament v. Diament, 816 A.2d
256 (Pa.Super.2003); Mascaro v.
Mascaro, 764 A.2d 1085
(Pa.Super.2000), reversed in part, 803
A.2d 1186 (Pa.2002).
Personal injury lawsuit proceeds
Diament v. Diament, 816 A.2d 256
(Pa.Super.2003); Darby v. Darby, 686
A.2d 1346 (Pa.Super.1996); Butler v.
Butler, 488 A.2d 1141 (Pa.Super.1985)
Rental income
Schedule E, line 24
23 Pa.C. S. § 4302; S. Calabrese v. M.
Calabrese, 682 A.2d 393 (Pa.Super.
1996); Farabaugh v. Killen, 648 A.2d
60 (Pa.Super.1994); Leonard v.
Leonard, 510 A.2d 827
(Pa.Super.1986); Francis v. Francis,
517 A.2d 997 (Pa.Super.1986)
Severance pay
Form W-2 or 1099
Hinkle v. Hinkle, 685 A.2d 175
(Pa.Super.1996), Berry v. Berry, 898
A.2d 1100 (Pa. Super. 2006)
Retained earnings
Schedule K-1, line 1
Fennell v. Fennell, 753 A.2d 866 (Pa.
Super.2000); Hoag v. Hoag, 646 A.2d
578 (Pa.Super.1994), affirmed, 541 Pa.
621, 664 A.2d 1354 (1995); Blaisure v.
Blaisure, 577 A.2d 640 (Pa.Super.
1990); King v. King, 568 A.2d 627
(Pa.Super.1989)
(continued on Page 33)
32
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ARTICLES AND COMMENTS
(continued from Page 32)
FORM OF
CASH FLOW
Social Security
WHERE ON
TAX RETURNS
Form 1040, line 20a
CASE LAW
AUTHORITY
23 Pa.C. S. § 4302; In re Estate of
Johnson, 970 A.2d 433 (Pa. Super.
2007), Preston v. Preston, 646 A.2d
1186 (Pa.Super. 1994); CYS v. Chorgo,
491 A.2d 1374 (Pa.Super.1985)
Social Security disability
23 Pa.C. S. § 4302; Pa.R.C.P. 1910.162(b)(2); Maddas v. Dehass, 816 A.2d
234 (Pa.Super.2003); Bernstein v.
Bernstein, 457 A.2d 1316 (Pa.Super.
1983)
Stock options
Mackay v. Mackay, 2009 WL 3790559
(Pa. Super. 2009), Murphy v.
McDermott, 979 A.2d 373 (Pa. Super.
2009); Mackinley v. Messerschmidt,
814 A.2d 680 (Pa.Super.2003).
SSI (Supplemental Security
Income)
Silver v. Pinsky, 981 A.2d 284,
Whitmore v. Kenney, 626 A.2d 1180
(Pa.Super.1993); Landis v. Landis, 691
A.2d 939 (Pa.Super.1997), but see
Rodrigues v. Rodrigues, FD86 0293
(Ally. Cy. 1997).
Tax refunds
Form 1040, lines 10 and 60a
Young v. Muthersbaugh, 609 A.2d 1381
(Pa.Super.1992); Farabaugh v. Killen,
648 A.2d 60 (Pa.Super.1994);
O’Connell v. O’Connell, 597 A.2d 643
(Pa.Super.1991); Parkinson v.
Parkinson, 512 A.2d 20
(Pa.Super.1986); Reisinger v. Reisinger,
471 A.2d 544 (Pa.Super.1984)
(continued on Page 34)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
33
ARTICLES AND COMMENTS
(continued from Page 33)
FORM OF
CASH FLOW
WHERE ON
TAX RETURNS
CASE LAW
AUTHORITY
Trust income
Schedule E, line 32
23 Pa.C. S. § 4302; Butcher v. Butcher,
769 A.2d 1218 (Pa.Super. 2001);
Green v. Green, 783 A.2d 788
(Pa.Super.2001); Hoag v. Hoag, 646
A.2d 578 (Pa.Super.1994), affirmed,
541 Pa. 621, 664 A.2d 1354 (1995);
Abarbanel v. Weber, 490 A.2d 877
(Pa.Super. 1985); Hillman v. Hillman,
140 P.L.J. 475 (1992)
Unemployment compensation
Form 1040, line 19
23 Pa.C.S. § 4302
Unreimbursed Employee Expenses
(deduction from income)
Berry v. Berry, 898 A.2d 1100
(Pa.Super.2005)
Workers compensation
23 Pa.C. S. § 4302; Darby v. Darby,
686 A.2d 1346 (Pa.Super.1996);
Babish v. Babish, 521 A.2d 955 (Pa.
Super.1987); Witherow v. Witherow,
432 A.2d 634 (Pa.Super.1981).
2010 FAMILY LAW SECTION SUMMER MEETING
July 8-11, 2010 • Hyatt Regency Coconut Point Resort & Spa, Bonita Springs, Fla.
Take an e-tour of the resort at http://coconutpoint.e-hyatt.com
Reserve your room as soon as possible by calling Central Reservations at 1-888-421-1442
and referring to Pennsylvania Bar Association Family Law Section Group Code GPBA.
34
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
THE TAXING SIDE OF DIVORCE:
TAKING ADVANTAGE OF TAX SAVING MEASURES IN DIVORCE
BY MARY V. ADE
The significant emotional and financial costs of a
divorce may be magnified in uncertain economic times such
as we are currently experiencing. While the emotional costs
cannot be minimized, some of the financial costs can be alleviated by judicious use of the tax breaks afforded divorcing
couples.
QUICK REVIEW OF INTERNAL REVENUE CODE
SECTION 71 PROVISIONS
Alimony payments are deductible by the payor under
Section 215 of the Internal Revenue Code (IRC) and taxable
to the payee under IRC Section 71 if all of the following
requirements are met:
•
•
•
•
•
The payment is in cash.
The payment is not designated as nontaxable/
nondeductible.
If legally separated, the spouses are not members of the
same household at the time the payment is made.
The payment is not treated as child support.
The payments must end on the death of the payee
spouse.
CONVERT PROPERTY SETTLEMENT TO
TAXABLE/DEDUCTIBLE SECTION 71 PAYMENTS
Payments between spouses do not have to be in the form
of support to be afforded taxable/deductible treatment. If
there is a significant difference in the spouses’ tax brackets,
it may be advantageous to convert otherwise non-taxable
property transfers to taxable/deductible “Section 71” payments.
Example: As part of their property settlement, husband
will pay wife $60,000 in two equal installments. The first
Mary V. Ade is a Director in the Dispute Advisory &
Forensic Services Group of Stout Risius Ross, Inc.,
Southfield, Mich. She has over 20 years of experience in the
field of Family Law. Ms. Ade’s experience encompasses a
wide range of industries including manufacturing, construction, automotive suppliers, insurance, law firms, physician
practices, dental and oral surgery practices, surgery clinics,
construction contractors, restaurants, grocery stores, automotive dealerships, waste management, health care, stamping, advertising, retail, and wholesale distribution. She can
be contacted at (248)432-1336; made@srr.com.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
payment will be made in December 2009 and the second in
January 2010. As property payments, husband’s cost will be
$60,000 and wife’s benefit will be $60,000.
Assume that husband is in the 35 percent tax bracket and
wife is in the 15 percent bracket. Husband will pay wife a
total of $70,600 ($60,000 grossed up for her 15 percent tax
liability). The cost to husband will be $45,900 and wife will
receive her full $60,000 (amounts rounded).
Husband
Wife
Total Payments
$70,600
Tax Savings/Cost @35%/15% ( 24,700)
$70,600
(10,600)
Net Cost/Benefit
$60,000
$45,900
Husband has now paid under $46,000 to satisfy a
$60,000 obligation, thanks to the government “tax subsidy”
of $14,000.
Assume further that husband is willing to share the tax
subsidy with wife and agrees to pay her an additional $4,500
with each payment.
Husband
Wife
Total Payments
$79,600
Tax Savings/Cost @35%/15% ( 27,900)
$79,600
( 12,000)
Net Cost/Benefit
$67,600
$ 51,800
This example is a “win-win” situation. Husband saves
approximately $8,200 while wife receives an additional
$7,600.
AVOID INTEREST EXPENSE LIMITATIONS
BY CONVERTING INTEREST TO SECTION 71
PAYMENTS
Property settlements often result in a promissory note
from one spouse to the other to be paid over a number of
years. As a general rule, interest expense related to divorcerelated settlement payments is considered personal, nondeductible interest. The spouse receiving payments will
however, be required to report the interest payments and pay
the taxes thereon. To avoid this situation, the interest pay(continued on Page 36)
35
would be $7,580 (rounded). The total payments of $909,600
are equivalent to the above and avoid any potential tax issues.
ARTICLES AND COMMENTS
(continued from Page 35)
ments can be qualified under Section 71 by providing that in
the event of the payee’s death, the Section 71 payments (i.e.,
only the interest portion of the payments) would terminate,
and that the payer would have no further obligation to make
that portion of the payment. Of course, the principal of the
note would still be owed to the payee’s estate or heirs.
Example: Wife owns and operates a successful advertising agency valued at $1.6 million. Wife agrees to pay husband $800,000 and will execute a promissory note providing
for 120 monthly payments of $8,100 at 4 percent interest.
Both parties are in the 35 percent tax bracket. The settlement
agreement is silent with regard to the taxability of the interest payments. The IRS determined (on audit) that the wife’s
interest payments were non-deductible personal interest.
Thus, the settlement cost to the wife exceeds the benefit to
the husband by $60,000 (amounts rounded).
Wife
Total Principal Payments
Total Interest Payments
Total Payments
Tax Savings/Cost @35%
Net Cost/Benefit
$800,000
172,000
972,000
0
$972,000
Husband
$800,000
172,000
972,000
(60,200)
$912,200
Now look at the result if the settlement agreement had
provided that the interest portion of the payments were qualifying Section 71 payments, taxable to husband and
deductible by wife:
Wife
Total Principal Payments
Total Interest Payments
Total Payments
Tax Savings/Cost @35%
Net Cost/Benefit
$800,000
172,000
972,000
(60,200)
$912,200
Husband
$800,000
172,000
972,000
(60,200)
$912,200
The divorce instrument should provide that both parties
acknowledge that the interest payments are taxable to the
payee and deductible by the payer.
As an alternative to using Section 71 payments, the note
could carry an unstated, after-tax equivalent rate. The IRS
has ruled that the unstated and imputed interest rules do not
apply to divorce related obligations between ex-spouses.
Using our same example from above, now assume that
the promissory note bears unstated interest at 2.6 percent (the
4 percent taxable rate less the 35 percent tax saving). The
required monthly payment using the 2.6 percent interest rate
36
CONVERT LEGAL FEES TO
TAXABLE/DEDUCTIBLE SECTION 71 PAYMENTS
In general, attorney’s fees for divorce related services
are not deductible with the following exceptions:
1. Fees related to attempts to procure taxable income, even
if not successful; and
2. Fees attributable to tax advice.
By tax planning, parties can use the tax deductibility of
attorney’s fees to allocate fees between the spouses. If, for
example, husband pays to wife $10,000 as spousal support and
wife pays her attorney’s fees from this money and she is able
to deduct a significant portion of her fees, the transaction benefits both parties. It gives incentive for husband to pay wife’s
attorney’s fees by making them tax deductible as spousal support and gives wife the partial tax deduction for attorney’s fees
when incurred for the procurement of taxable alimony.
The following is an example of how to take advantage of
the “tax subsidy” provided by effective use of Section 71
payments:
• Husband agrees to pay wife’s $10,000 attorney’s fees.
• Assume half of wife’s attorney’s fee is attributable to
efforts to obtain alimony. As such, she can deduct half
the fee, but only if she pays it directly.
• Wife is in the 15 percent tax bracket and husband is in
the 28 percent bracket.
• Husband’s payment will be set up as a taxable/
deductible payment, subject to termination on wife’s
death.
• Husband’s $10,000 payment will cost him $7,200
($10,000 less the $2,800 tax savings).
• Wife will be able to take advantage of the deduction for
attorney’s fees.
ACCESSING FUNDS IN QUALIFIED PLANS
Qualified plans — 401(k)s, profit sharing plans, etc. —
can provide a ready source of funds for payment of fees,
credit card debt and other divorce related expenses. Internal
Revenue Code Section 71(t)(C) provides an exception to the
10 percent penalty on early withdrawals. An Alternate Payee
can be assigned an interest in the plans by means of a
Qualified Domestic Relations Order (QDRO) and can withdraw the funds penalty free even if under age 59½. Most
plans allow an immediate distribution.
As an example, assume the following facts.
• Both parties are in their early 40s and have 401(k)s with
their respective employers.
• The parties will need to withdraw a total of $80,000
($20,000 will be due in regular income taxes).
(continued on Page 37)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ARTICLES AND COMMENTS
(continued from Page 36)
•
•
•
They have credit card debt of $20,000 and fees of
$40,000.
Both parties are in a 25 percent tax bracket.
Neither party wants to totally deplete their retirement
account.
Wife can assign $40,000 from her 401(k) to the husband,
who will request an immediate distribution. After payment of
his $10,000 tax liability, husband will be required to pay
$30,000 towards the parties’ combined debt.
Husband will assign $40,000 from his 401(k) to wife,
who will also request an immediate distribution and pay the
other half of the debts and her $10,000 tax liability, all while
avoiding the 10 percent penalty!
ACCESSING FUNDS IN IRAS
The penalty exemption afforded to qualified plans does
not apply to IRAs. However, do not overlook the possibility
of tapping into IRAs.
Generally, if you are under age 59½, you must pay a 10
percent additional tax on the distribution of any assets
(money or other property) from your traditional IRA.
Distributions before you are age 59½ are called early distributions. The 10 percent additional tax applies to the part of
the distribution that you have to include in gross income. It
is in addition to any regular income tax on that amount.
The following exceptions to the age 59½ rule may be
particularly relevant in a divorce context. Even if you receive
a distribution before you are age 59½, you may not have to
pay the 10 percent additional tax if you are in one of the following situations.
• You are receiving distributions in the form of an annuity.
• The distributions are not more than your qualified higher education expenses.
• You have unreimbursed medical expenses that are more
than 7.5 percent of your adjusted gross income.
• The distributions are not more than the cost of your
medical insurance.
Annuity. You can receive distributions from your traditional
IRA that are part of a series of substantially equal payments
over your life, or over the lives of you and your beneficiary,
without having to pay the 10 percent additional tax, even if
you receive such distributions before you are age 59½. You
must use an IRS-approved distribution method and you must
take at least one distribution annually for this exception to
apply. The “required minimum distribution method,” when
used for this purpose, results in the exact amount required to
be distributed, not the minimum amount.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
There are two other IRS-approved distribution methods
that you can use. They are generally referred to as the “fixed
amortization method” and the “fixed annuitization method.”
These two methods are not discussed in this publication
because they are more complex and generally require professional assistance.
Qualified higher education expenses. Qualified higher education expenses include tuition, fees, books, supplies, and
equipment required for the enrollment or attendance of a student at an eligible educational institution. They also include
expenses for special needs services incurred by or for special
needs students in connection with their enrollment or attendance. In addition, if the individual is at least a half-time student, room and board qualify as higher education expenses.
An eligible educational institution is any college, university, vocational school or other postsecondary educational institution eligible to participate in the student aid programs administered by the U.S. Department of Education. It
includes virtually all accredited, public, nonprofit and proprietary (privately owned profit-making) postsecondary institutions. The educational institution should be able to tell you if
it is an eligible educational institution.
Higher education expenses. Even if you are under age 59½,
if you paid expenses for higher education during the year, part
(or all) of any distribution may not be subject to the 10 percent
additional tax. The part not subject to the tax is generally the
amount that is not more than the qualified higher education
expenses for the year for education furnished at an eligible
educational institution. The education must be for you, your
spouse, or the children or grandchildren of you or your spouse.
When determining the amount of the distribution that is
not subject to the 10 percent additional tax do not include
expenses paid with any of the following funds:
• Tax-free distributions from a Coverdell education savings account.
• Tax-free part of scholarships and fellowships.
• Pell grants.
• Employer-provided educational assistance.
• Veterans’ educational assistance.
• Any other tax-free payment (other than a gift or inheritance) received as educational assistance.
Unreimbursed medical expenses. In situations where a
family is facing extraordinary medical costs, IRAs can provide additional funds. Even if you are under age 59½, you do
not have to pay the 10 percent additional tax on distributions
that are not more than:
• The amount you paid for unreimbursed medical expenses during the year of the distribution, minus
• 7.5 percent of your adjusted gross income for the year of
the distribution.
(continued on Page 38)
37
ARTICLES AND COMMENTS
(continued from Page 37)
•
•
You can only take into account unreimbursed medical
expenses that you would be able to include in figuring a
deduction for medical expenses on Schedule A, Form 1040.
You do not have to itemize your deductions to take advantage
of this exception to the 10 percent additional tax.
•
•
•
Medical insurance. Unfortunately, many people have been
temporarily laid off or lost their jobs due to the current economic conditions. Even if you are under age 59½, you will
not have to pay the 10 percent additional tax on distributions
used to purchase medical insurance for yourself, your spouse
and your dependents. You will not have to pay the tax on
these amounts if all of the following conditions apply.
You lost your job.
You received unemployment compensation paid under
any federal or state law for 12 consecutive weeks
because you lost your job.
You receive the distributions during either the year you
received the unemployment compensation or the following year.
You receive the distributions no later than 60 days after
you have been reemployed.
The distributions are not greater than the cost of the
medical insurance.
FINAL COMMENTS
An awareness of the tax consequences of divorce-related payments can result in a net tax savings, preserving more
of the estate for the parties. We hope this article has heightened your awareness of some of the tax laws which, when
properly used, can mitigate some of the high costs of divorce.
IN CASE YOU WERE WONDERING …
RETIREMENT PLANS AND PLAN PARTICIPANTS’ DEATHS
BY CAMI L. DAVIS, ESQ.
Retirement and other employer provided benefits often
account for a significant portion of a couple’s financial
worth. It is essential to understand what benefits are available and to deal with these benefits in the divorce or settlement agreement. Equally important, participants must make
any necessary changes in beneficiary designations following
the divorce.
Consider the following: A participant’s wife had relinquished her rights to her husband’s 401(k) plan in the property settlement agreement. The participant failed to change
his beneficiary designation after the divorce and upon his
death, the entire account balance was paid to the former wife.
In January 2009, the U.S. Supreme Court ruled in
Kennedy v. Plan Administrator for DuPont Savings and
Investment Plan that when a plan participant’s former spouse
is named as the sole beneficiary at the time of the particiCami L. Davis is an Associate with Rothman Gordon P.C. in
the Labor and Employment Law and Employment Litigation
Departments. While Cami concentrates her practice on litigation, she works with clients on a variety of issues, including counseling related to employment policies and practices,
employment discrimination, employment agreements, wage
and hour issues, unemployment compensation and other
human resource matters. Cami can be reached at (412) 3381127 or cldavis@rothmangordon.com.
38
pant’s death, the plan administrator is obligated to distribute
the funds in accordance with the beneficiary designation.
This holds true even if the former spouse waived his or her
rights to plan benefits pursuant to a divorce settlement.
The Kennedy decision is consistent with the precedent
setting decision in Egelhoff v. Egelhoff, which resolved a
split among the lower circuits on the issue of ERISA preemption.
Egelhoff v Egelhoff (532 U.S. 141(2001))
David A. Egelhoff designated his wife, Donna Rae
Egelhoff, as the beneficiary of a life insurance policy and a
pension plan provided by his employer which was governed
by the Employee Retirement Income Security Act of 1974
(ERISA). David Egelhoff died two months after the
Egelhoffs divorced. His children then sued Donna Rae to
recover the insurance proceeds and the pension plan benefits.
The children relied on a Washington state statue that provides that the designation of a spouse as the beneficiary of a
nonprobate asset — defined to include a life insurance policy or employee benefit plan — is revoked automatically
upon divorce. Subsequently, the proceeds would pass to the
children as David’s statutory heirs under state law. Under
ERISA, the state trial courts granted Donna Rae summary
judgment. In reversing, the Washington Court of Appeals
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PENNSYLVANIA FAMILY LAWYER
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ARTICLES AND COMMENTS
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found that the statute was not preempted by ERISA. In
affirming, the Washington Supreme Court held that the
statute does not “refer to” ERISA plans to an extent that
would require preemption.
In a 7-2 opinion, the U.S. Supreme Court held that that
the Washington statute has a “connection with” ERISA plans
and is therefore pre-empted. “Differing state regulations
affecting an ERISA plan’s ‘system for processing claims and
paying benefits’ impose precisely the burden that ERISA preemption was intended to avoid. The statute at issue here
directly conflicts with ERISA’s requirements that plans be
administered, and benefits be paid, in accordance with plan
documents.”
A look at a few state court decisions regarding both
ERISA preemption and the need to be specific when dividing
employer provided benefits
Sweebe v. Sweebe (712 N.W.2d 708. (Mich. 2006))
The Michigan Supreme Court ruled that ERISA’s preemption provision does not preclude a named beneficiary
from waiving the proceeds from a life insurance policy.
In their divorce proceeding, husband and wife agreed to
give up any interest either had in any insurance policy. When
the husband died, the administrator of his employee benefit
plan distributed the proceeds to the widow. But the court said
that the former wife could not retain the benefits.
While a plan administrator must pay benefits to the
named beneficiary as required by ERISA, the court
explained that this does not mean that the named beneficiary
cannot waive her interest in retaining these proceeds. Once
the proceeds are distributed, the consensual terms of a prior
contractual agreement may prevent the named beneficiary
from retaining those proceeds.
Here, the former spouse had signed a provision in her
judgment of divorce in which she extinguished any interest
she had or may have had in any insurance contract or policy
of the decedent. The court found that because she had clearly and unequivocally waived her right to the plan proceeds,
she had no legal right to retain the proceeds under the waiver provision in the judgment of divorce.
In Re: Estate of Paul J. Sauers, III, Deceased (2009 PA
Super 75 (4-17-09))
In this case, as in Sweebe, the proceeds of an employer
provided life insurance plan were paid to a former wife in
accordance with plan documents. The former wife was
ordered by the trial court to surrender the life insurance proceeds to her ex-husband’s nephew, the designated contingent
beneficiary in the plan documents. The former wife appealed
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
the ruling on the basis that the Pennsylvania statute was preempted by ERISA.
The Pennsylvania Superior Court ruled that the preemption provisions of ERISA prohibit a plan administrator from
distributing the proceeds of a life insurance policy to a person other than the named beneficiary in the plan documents.
However, the court went on to say that the Pennsylvania
statute that states the designation of a former spouse as a beneficiary is ineffective unless there is a specific intent that the
designation survive the divorce is not preempted by ERISA.
The statute specifically states that “Any former spouse to
whom payment is made shall be answerable to anyone prejudiced by the payment.” Thus, the former wife was required
to surrender the proceeds of the policy to the nephew.
Martin v. Martin (2009-Ohio-67)
The Judgment of Divorce in this case provided that
“each party shall receive 50 percent of the other parties’
retirement accrued as of Nov. 21, 2003.” Ms. Martin submitted a Qualified Domestic Relations Order (QDRO) to the
trial court that assigned 50 percent of the accounts plus any
interest, dividends, etc. earned between Nov. 21, 2003, and
the actual date of distribution. The court refused to enter the
QDRO stating, “The value of a retirement plan may go up or
down based on the value of the assets in the fund. If the value
of the ‘other’ person’s retirement plan decreased in value, the
value of the grant remains the same. ... Any increases in the
funds do not affect what the plaintiff is to receive …” Ms.
Martin appealed the decision of the trial court.
The Court of Appeals affirmed the decision finding that
under the clear wording of the provision in the judgment of
divorce, Ms. Martin was entitled to a sum certain. The parties could have provided that Ms. Martin share in earnings,
gains and losses but did not do so.
Cook v. Cook (TN No. E2007-COA-R3-CV – February
2008)
Linda Jean Cook (wife) was awarded one-third of her
husband’s First Tennessee National Savings Corporation
Savings Plan and Trust as of Oct. 22, 1993. An acceptable
QDRO was never presented to the plan administrator and 10
years after the divorce, wife requested the court to order her
ex-husband to file a QDRO assigning one-third of the plan in
shares of stock, which had appreciated considerably since the
divorce. Husband maintained that wife was entitled to a specific dollar amount instead. Wife’s expert testified that wife’s
one-third of the shares in the plan at the time of divorce had
appreciated to a value of $171,461. Husband’s expert testified that wife’s portion of the Plan as of Oct. 23, 1993, was
$27,588. The court agreed with husband’s expert, awarding
wife $27,588 plus 6 percent interest for a total of $46,182.
The Court of Appeals affirmed.
(continued on Page 40)
39
ARTICLES AND COMMENTS
(continued from Page 39)
COMMENT: The facts in these cases are hardly
unique. The importance of defining the exact benefits to be
divided is essential. Obviously, the value of the assets in the
accounts had risen between the dates of divorce and the dates
of the appeals. Consider the opposite: If the accounts had
incurred significant market losses, as we have seen recently,
it may have been the participants appealing the rulings.
In Re Marriage of Sawicki v. Sawicki (346 Ill.App. 3d,
1107 (2004))
The Sawickis were divorced on Nov. 3, 2002, after a
lengthy trial. Mr. Sawicki was retired and receiving disability retirement payments. The amount of Mr. Sawicki’s pension was based on approximately 27 years of participation in
the plan, 13 of which predated his marriage to Ms. Sawicki.
Ms Sawicki’s expert testified that the marital portion of the
pension was 87.5 percent by comparing the accrued benefit
at the date of the marriage to the accrued benefit at the date
of divorce. The trial court agreed with the expert, determined
the marital portion of the benefit to be 87.5 percent, and
awarded 50 percent to Ms. Sawicki. Mr. Sawicki appealed,
contending that the marital portion of his disability pension
was actually 38.4 percent.
The Court of Appeals agreed with Mr. Sawicki and
remanded the issue to the trial court to recalculate the marital portion of the pension using a fraction with a numerator
equal to the number of years of marriage during which benefits were accumulated, and the denominator equal to the
total number of years during which benefits were accumulated prior to the divorce.
Kazel v. Kazel (3NY 3d 331 (2004))
Although the facts are different, the holding in this case
is similar to that in Martin above. The Kazels were divorced
in 1991 after a 28-year marriage. A QDRO was entered providing that Ms. Kazel was to receive a percentage of Mr.
Kazel’s monthly pension at such time as he retired or at his
earliest eligible retirement date. Mr. Kazel died in 2001,
before reaching retirement age.
Ms. Kazel’s application for preretirement death benefits
under the pension plan was denied by the plan administrator
on the basis that QDRO made no assignment of the death
benefits. Ms. Kazel then petitioned the court to enter a modified QDRO granting her a share of the death benefits. The
court denied Ms. Kazel’s motion and its decision was
appealed.
The Court of Appeals affirmed the lower court decision stating “A judgment of divorce and qualified domestic relations order awarding an interest in the husband’s
40
pension plan do not automatically include preretirement
death benefits available under the plan. If the intent is to
distribute such benefits, that should be separately, and
explicitly stated.”
In Re the Marriage of: Hendrickson v. Hendrickson
(307Wis.2d, 443 (2007))
Ms. Hendrickson appealed a post divorce order granting
her a share of her ex-husband’s disability pension in lieu of
his retirement pension. Ms. Hendrickson argued that the
court erred by replacing her fixed percentage of Mr.
Hendrickson’s retirement pension with a fixed-dollaramount from his disability pension. Mr. Hendrickson crossappealed on the grounds that his disability was not subject to
division.
The Court of Appeals agreed with Mr. Hendrickson citing Wisconsin precedent. “In Wisconsin, neither future disability benefits, nor the present value of those benefits, are
divisible assets in a divorce.” Further, “a service-connected
disability benefit is compensation for impairment of the
body, and it is not in the nature of an asset acquired or accumulated through the marital relationship.”
Heger v. Heger (184 Md.App, 83 (2009))
At issue in this appeal was wife’s request to be named
beneficiary of the husband’s survivor benefits. At the time
of the divorce, Mr. Heger, a former police officer, was
retired and receiving a disability pension. The trial court
ordered Mr. Heger to pay Ms. Heger a 32 percent share of
his pension payments but made no award of survivor benefits.
The Court of Appeals affirmed the ruling on the basis
that Ms. Heger failed to offer evidence that the pension plan
provided survivor benefits or that she was entitled to them if
they did exist.
Ziobrowski v. Ziobrowski (TN No. M2006-COA-R3-V7 –
December 2007)
The final divorce decree in this case incorporated a
memorandum that valued and divided the parties’ marital
party. The decree provided, in part, that “Wife is awarded
one-half of the $676.60 monthly benefit payable on account
of the old General Motors retirement account.” After an
almost 10-year delay, a QDRO was approved that would
have provided Ms. Ziobrowski a monthly benefit in excess
of $1,000. Mr. Ziobrowski appealed.
Ms. Ziobrowski argued that the $676.60 figure in the
divorce decree was merely an estimate of the future benefit
and that her benefit should not be limited to 50 percent of
this amount. The Court of Appeals ruled that the divorce
decree clearly assigned a monthly benefit of $338.30 to Ms.
Ziobrowski. The case was remanded to the trial court to
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amend the QDRO to limit Ms. Ziobrowski’s monthly benefit to $338.30.
COMMENT: The above cases all illustrate the
importance of being familiar with the terms of the plan to
be divided, knowing the applicable state statutes and
precedent and using specific language in the judgment of
divorce or settlement agreement to clearly define the intent
of the parties.
FINAL THOUGHTS
The facts in the above cases are not unusual, but repeated in one variation or another in many cases across jurisdictions. There are however, a few common themes that have
universal application:
• Know what benefits an employer provides.
• Define exactly which benefits are to be divided.
• Make explicit determinations as to how benefits are to
be divided.
• Be sure the language in the judgment and QDRO is
clear, concise and accomplishes the intent of the parties
or mandate of the court.
• Be diligent in changing beneficiaries after the divorce (if
appropriate).
THE EFFECT OF ISLAMIC FAMILY LAW
ON NORTH AMERICAN FAMILY LAW ISSUES
BY ALEXANDRA LEICHTER, ESQ.
INTRODUCTION
In an age of multi-culturalism, family law attorneys
must become familiar with the impact religious customs and
laws may have on civil family law issues. The areas in which
Islamic law and custom impact civil family law in Western
countries can be categorized as follows:
1.
2.
3.
Enforcement of a deferred Mahr (dowry) amount contracted for an Islamic marriage contract:
a. where the Islamic marriage contract was signed in
an Islamic country;
b. where the Islamic marriage contract was signed in a
Western country;
Civil enforcement of substitute property rights under a
Nikah (marriage) contract in lieu of property rights
granted by Western laws;
Recognition in a Western country of a divorce decree
obtained in an Islamic country under Shari’a law and of
a marriage contracted under Shari’a law in a Western
country;
Alexandra Leichter is a Specialist in Family Law, Certified by
the California Bar Board of Legal Specialization, and she is
a Certified Family Law Arbitrator, Certified by the American
Academy of Matrimonial Lawyers. She is a fellow of both the
American Academy of Matrimonial Lawyers and the
International Academy of Matrimonial Lawyers. Her Beverly
Hills practice emphasizes family law litigation, consultation,
private judging , and arbitration. Alexandra can be reached
at (310)278-3112; fax (310)657-4346; leichter@familylawprivatejudge.com; www.familylaw-privatejudge.com.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
4.
5.
Conflicts between custody laws in Islamic and Western
countries;
Religious court arbitration of Nikah agreements, support
and custody rights.
This article will focus on the manner in which various
states in the U.S. and, in some respects Canadian provinces,
have dealt with the family law conflicts between civil law
and Islamic family laws. Because both the U.S. Constitution
and Canadian Constitution mandate separation of church and
state1, courts walk a very fine line between adjudicating religious issues (which are forbidden), and enforcing rights and
obligations obtained through religiously based contracts
and/or customs.
Before proceeding, however, a basic understanding of
Shari’a — or Islamic — family law and customs, as well as
the vocabulary of such sectarian laws and customs is necessary.
BASIC PRIMER ON ISLAMIC LAW AS IT RELATES
TO FAMILY LAW ISSUES:
Shari’a:
The term Shari’a, which is commonly used to refer to
“Islamic law,” has been defined as “the highway of good
life.”2 Although Shari’a, according to believers, is the product of divine revelation,3 it has also, undoubtedly, been
shaped by hundreds of years of legal theory and interpreta(continued on Page 42)
41
ARTICLES AND COMMENTS
(continued from Page 41)
tion.4 As a result, Shari’a family law schools of thought and
implementation vary among Islamic countries and sometimes even within various parts of the same country.5
Koran (Quran):
The Koran is believed by Muslims everywhere to be the
written form of divine revelations made to the Prophet
Mohammed.6
Sunna & Hadith:
The sunna are the practices of the Prophet Mohammed
and provide the basis for the hadith, which are the traditions
and sayings attributed to the Prophet.7 The Koran, the sunna
and the hadith were not committed to writing until well after
the death of the Prophet.8 Thereafter, over the centuries,
scholars and jurists developed, through a process of analogical deduction, consensus of the jurists, and other juristic
devices, based upon the Koran, the sunna and the hadith, a
body of laws that are now referred to as Shari’a, Islamic
law.9 Four schools of law developed among the Sunnis10 and
two main schools developed among the Shi’as.11 Varying
support for these schools of law among the Muslim world
has led to differences in the substance of Shari’a family law
among Muslim countries.12 (A comprehensive analysis of the
differences in theology and practice among the schools is
beyond the scope of this article.)
MARRIAGE AND DIVORCE RIGHTS
AND RITES UNDER ISLAMIC LAWS
Shari’a family law, as compared to current modern
Western family laws, is not egalitarian. For example, Shari’a
allows a man to divorce a woman unilaterally and without
cause, while a woman may only divorce a man if he is recalcitrant, or under other very limited circumstances. If a
woman cannot show a valid legal right to divorce her husband, she may still be able to divorce him (subject to the
decision of the Shari’a court), but she will most likely forfeit
her contractual dowry rights, which often constitute the sole
means for her post-divorce survival.
As another example, Shari’a almost always grants physical custody of children to the mother until the boy reaches
age 7 (in some countries even as young as 2), and until the
girl reaches age 9 or 11 [or puberty]; thereafter, the father or
the father’s family, if the father is not available, in most jurisdictions, not the mother or the mother’s family, is granted
physical custody of the child — see discussion on hadana
below). Furthermore, a mother may also lose physical custody of her children if she remarries, even if she does so
legally after she obtained a valid religious divorce.
42
With certain limitations, Shari’a allows polygamy, but
never polyandry13. However, many countries utilizing
Shari’a family law allow a woman to offset some — but certainly not all in most circumstances — of these default
inequalities by contractually setting out her rights in the marriage contract (nikah) signed by the parties before the marriage.
Marriage under Islamic law is a contractual relationship
bolstered by certain rights and obligations inherent in
Shari’a. A valid Islamic marriage is a contract (a nikah),
effected by an offer, usually from the woman or her guardian
(often her father or brother), and an acceptance by the man.14
No imam is necessary to conduct the marriage ceremony;
usually two adult witnesses, and in some cases just “publicizing” the marriage, is sufficient to render the marriage
valid if all other provisions of Islamic law are effectuated.
Generally, the man accepts, agrees to, and pays a dowry
(called mahr or saddaq). When a marriage contract is completed, the “woman comes under her husband’s ... authority,
control and protection.”15 “[T]he Shari’a conception of marriage (is) dominated by two presuppositions: Women render
their sexual favors and in return they gain the right to maintenance.”16 Each party to the marriage has certain rights and
obligations under Shari’a.17 However, some of these rights
and obligations are defined differently in various Islamic
countries, and it is these rights and obligations that may be
augmented or abrogated to a certain degree in the marriage
contract itself (depending on the provisions of the law in that
particular country)18. For example, in many of the Islamic
countries, a wife may insert into the marriage contract the
reasons for which she may be entitled to divorce (even without the husband’s consent). In contrast, and most importantly, however, the marriage contract may not alter husband’s
unfettered right to divorce his wife without cause, as that
right is deemed to be unalterably granted to husband by
Shari’a.
Under Shari’a, divorce is accomplished by the husband
pronouncing, the word talaq (I repudiate you) three times.
Authorities and countries differ on how and when this may
be accomplished and procedures differ from country to
country or even from region to region within that country.
Generally, however, under Shari’a a husband must pronounce the word talaq at a time when his wife is not menstruating, and then successively do so twice more during
each of the periods following the cessation of the wife’s
menstrual cycle. In some jurisdictions, husband may pronounce talaq three times in succession on the same occasion,
provided it is done at a time during which wife is not menstruating. Thereafter, wife is in an ’idda, or waiting period,
for three months, during which time she is forbidden to
remarry. This ’idda period is also significant for the wife,
because the husband is required to continue to give mainte(continued on Page 43)
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ARTICLES AND COMMENTS
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nance to wife during the ’idda period, but not thereafter19.
(There is no such thing as long-term or lifetime maintenance, alimony or spousal support under Shari’a. That is one
reason why the amount of mahr the wife receives upon
divorce is such an important part of the marriage contract —
the amount of mahr, in many cases, is all the wife may have
to survive on if the husband divorces her)20.
The important thing to remember about talaq is that husband needs absolutely no reason to divorce his wife. He must
simply accomplish the means by which that is done as is dictated by the specific Islamic jurisdiction or country in which
he seeks to accomplish this.
In contrast, other means by which the parties may dissolve their marriage are usually initiated or requested by
women. Khul (or mubarat) is a divorce accomplished with
the agreement of the husband, wherein the wife may initiate
the divorce, but, the price for such ability to divorce is that
the wife usually gives up her right to all or part of the mahr
provided for in her marriage contract, or she gives some
other compensation to the husband to allow her to be
divorced from him.
Tatliq (or tafriq) is a means by which the courts may
grant a divorce to a woman on specified grounds even if the
husband does not consent to the divorce. In most Islamic
countries, the marriage contract itself may stipulate specific
reasons whereby a woman is entitled to request and be granted an unconditional divorce without giving up her mahr.
These grounds for allowing the wife to obtain an unconditional divorce are set forth in the nikah agreement and may
include a whole host of reasons, such as husband marrying a
second wife, husband prohibiting her from working or some
other specified grounds. However, these grounds must also
be proven in the Shari’a court, and the right to such a divorce
is subject to the decision of the Shari’a judges21. The wife
may specify in her nikah agreement that she can request and
be granted a divorce without grounds, just as a man can,
without forfeiting her mahr22. Under very limited circumstances, even where the nikah agreement doesn’t set forth
grounds for the wife to divorce her husband, wife may still
use tatliq or tafriq where the husband is guilty of acts forbidden by Shari’a, as a means to obtain a judicial divorce from
her husband without his consent and still be entitled to her
mahr rights.
The marriage contract usually provides for a stipulated
amount of dowry (mahr) which is payable by the husband to
the wife. Generally, (although this varies by custom) a small
portion of the mahr is payable upon signing of the agreement
and a much larger, “deferred portion,” is payable upon
divorce or death of the husband. (Parties can also stipulate
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
that the deferred portion is payable at any time upon wife’s
demand, although it is rarely demanded in an intact marriage).
In many of the Islamic marriages taking place in the
U.S., it has become customary to have only a “token” mahr
inserted into the marriage contract. This is especially true in
Islamic marriages where the parties and their families have
become more “Americanized” or “Westernized.” This
“token” mahr may also have been influenced by American
jurisprudence, which appears loathe to enforce nikah agreements that appear to be unjust. Thus, nikah agreements in
North America are often looked upon more as a “religious”
rather than a “contractual” agreement, with the mahr being
characterized as a “token of affection” shown by the groom
toward the bride. This is not necessarily universal even in the
U.S. Nevertheless, family law attorneys faced with nikah
agreements in divorce situations should be willing to explore
the customs of the married couple, their family and their
community to determine whether the minimal amount of
mahr was really intended by the parties to be the sole amount
the wife would be entitled to receive upon divorce or
whether it was to be merely a religious symbol or other token
of the marriage under Islamic law and custom.
In most Islamic countries, the wife’s entitlement to marital property is limited to the mahr that is provided for her in
the marriage contract. (She is also entitled to the assets that
are in her name, and her own earnings during marriage that
still remain upon divorce). All assets acquired in the husband’s name and all earnings of the husband are generally
deemed to belong solely to the husband.23 The nikah not only
specifies the amount of money to be paid to wife in case of
divorce, the agreement, if silent, also presupposes the application of Shari’a to prevent wife from claiming any property acquired during the marriage with husband’s efforts or
property in his name. In many cases, the only asset to which
the wife may lay claim upon divorce is the amount of the
deferred mahr.
In many instances, the amount of the mahr is a source of
pride and bragging rights. For example, many men will stipulate to a much larger amount of mahr than what they can
possibly afford at the time of the marriage (or that they ever
hope to acquire in the future). That is because they simply
want to show off to the bride’s family, to friends and to
neighbors, how much they’re willing to, and by implication,
how much they are able to afford to pay; and they simply
assume they will never have to pay it. In turn, the bride’s
family may also attempt to obtain a commitment of very
high mahr amount so that they can brag to friends how much
money their daughter was valued in the marriage. (It should
be remembered that husbands do not receive any mahr or
other dowry under an Islamic marriage contract).
(continued on Page 44)
43
ARTICLES AND COMMENTS
(continued from Page 43)
Mut’a (Temporary Marriage)
Recognized only in the Shi’a sect of Islam, Mut’a
(which in Arabic means “pleasure”) is a “marriage contract
with a defined duration which can be from some minutes to
99 years. It legitimates the sexual union as well as the children born into it.”24 The temporary marriage contract must
have a definite period and a definite payment of mahr. This
type of contract does not entitle the husband to have the type
of control over the wife that he would be entitled to have
under a regular marriage (i.e., He does not have the right to
prevent her from working or prohibit her from obtaining a
specific type of employment) and by the same token, the
temporary wife is not entitled to maintenance. There is no
divorce of a temporary marriage — it simply expires by its
terms, or the husband can “gift” to the temporary wife the
balance of the time that he has, in effect purchased, but the
wife has no such option. While the man can enter simultaneously into as many mut’a marriages as he wants, a woman
can only do so one at a time and cannot contract another one
until the expiration of the ‘idda of two menstruation periods
following the end of the mut’a period.25 Children of a mut’a
marriage are considered legitimate and are entitled to support. Mut’a marriages are not permitted in any other sect of
Islam, other than Shi’a.
CUSTODY RIGHTS UNDER ISLAMIC LAW
The Doctrine of Hadana governs “physical child custody” rights under Islamic law. The law of the particular
Islamic country varies with respect to the age of the child
where physical custody is automatically granted to the father.
Under Shari’a generally: The child of a father is recognized
only if the parties were married (whether a full legal marriage, or a mut’a, a temporary marriage)26. A child born out of
wedlock or of an incestuous relationship is not deemed to be
the child of the father and the father would thus have no obligation to support, and no legal or custodial rights to the child.
a) With respect to children from a legitimate marriage or
from a temporary marriage, the doctrine of Hadana provides, essentially:
i) The mother is entitled to “physical” custody of her
male child up to the age of 7 (in some countries it is
a lower age, even as low as post-nursing age, or the
age of 2), and of her female child up to the age of
puberty (in some countries it is a specific age of 9
or 11)27. If the father is unfit for physical custody
once the child reaches the requisite age, the child’s
paternal male relatives, and not the mother, are
given custody, although this, too, varies from country to country.
44
ii) The mother’s right to hadana is also subject to the
control of the father who is the child’s natural
guardian — in other words, the father has sole
“legal” custodial rights, known as wilaya, and has
the sole power to determine, for example, whether
the child obtains a passport, the course and place of
his education, etc. If the father is not available or is
incompetent to exercise such legal custodial rights,
it is often the father’s family that will have sole
legal guardianship or sole legal custodianship of the
child, although this, too, varies by country.
The mother can lose custody before the child reaches the
requisite age if she is an “apostate,” i.e. wicked or untrustworthy. The mother can also lose custody before the child
reaches the requisite age if she cannot promote the religious
or secular interests of the child. 28 Most significantly, mother
can also lose custody of the children if she remarries someone other than from father’s family.
ENFORCEMENT OF A NIKAH AGREEMENT
In North American family law cases, the conflicts often
arise regarding entitlement and interpretations of the
deferred mahr in the nikah agreements. When nikah agreements have been enforced in American or Canadian courts,
they were done by analyzing the nikah agreement as a contractual document rather than a “religious” document and
they may also be given validity as a “premarital agreement,”
subject to the same requirements and analyses as civil
prenuptial (premarital) agreements.
In a case involving a lengthy marriage, it is the husband
who is likely to seek enforcement of the nikah when the
amount of the mahr is likely to cost him a lot less than giving the wife her share of assets acquired during the marriage
and to which she would be entitled under the civil law of that
state. In such cases, the husband will seek to invoke the law
of the Islamic country where the agreement was signed or
the Shari’a laws of the particular Islamic school under which
they were married.
In contrast, in a case involving a short marriage,or
where the deferred mahr amount is likely to be far greater
than the assets acquired during marriage, it is the wife who
will seek enforcement of the nikah. Often the wife may even
claim that her rights to the mahr are not exclusive and that
she may, in addition to the mahr, be also entitled to her share
of marital assets under civil law.
In either case, the outcome may often involve huge
sums of money. However, even a “token” mahr that is customarily part of a U.S. nikah agreement can present a problem. While such a token mahr may well be unenforceable in
a U.S. court that may dismiss the agreement as merely “religious” and thus “unenforceable,” that may not be the case if
(continued on Page 45)
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the parties migrate or return to an Islamic country where the
divorce court in that country may well enforce the “token”
mahr and leave the wife without resources or her fair share
of other marital property.
Family law cases in the U.S. and in Canada appeared to
have ruled upon validity and enforceability of nikah agreements and entitlement of the mahr using several legal analyses29.
In cases where the nikah agreement met the requirements
of that particular state’s Prenuptial Agreement laws, the mahr
was enforced.30 For example in Odatalla v. Odatalla31, a mahr
of $10,000 in an Islamic Marital Agreement was sought to be
enforced by the wife; the court upheld the agreement on neutral principles of law, not on religious policy or theories, and
the nikah was held to be an enforceable agreement. Of course,
the fact that the negotiations for the specific amount of Mahr
were videotaped and the agreement was shown to have been
freely and voluntarily executed was a key factor in the court’s
decision, finding that there was no need to resort to religious
interpretations of the contract.
Similarly, in Akileh v. Elchahal32, a sadaq of $50,000 in
an Islamic marriage contract was determined to be a valid
prenuptial agreement based upon neutral principles of law,
without having to resort to interpretations of Shari’a or other
religious law.
And, in the Canadian province of British Columbia, in
the case of Nathoo v. Nathoo33, a mahr of $20,000 was held
enforceable on neutral principles of law. The facts found by
the court showed that the parties discussed the amount and
negotiated with each other in coming to the terms. The court
held: “Our law continues to evolve in a manner which
acknowledges cultural diversity. Attempts are made to be
respectful of traditions which define various groups who live
in a multi-cultural community.”34 Additional factors, interestingly, included the court’s finding that the mahr agreement
did not oust the provisions of applicable civil family law
with respect to the wife’s entitlement to property under the
civil laws of the province.
The Nathoo case provides an insight into the types of
nikah agreements and mahr provisions that are more likely
to be enforced. Those nikah agreements that provide for the
mahr amount to be the sole remedy of the wife upon divorce,
coupled with the apparent inadequacy of the mahr amount
(as compared to the civil property and support rights to
which the wife would ordinarily be entitled in the absence of
such an agreement), have generally fared very poorly. These
types of nikah agreements, which envision mahr to be the
sole remedy upon divorce, will be interpreted under the premarital laws in effect for that state or province.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
For example, Khan v. Khan35 involved a one-year marriage, with a nikah agreement signed in Pakistan, whereby
wife waived her right to support upon divorce. Husband
claimed the arranged marriage was in order to effect a sponsorship of the wife to Canada. The court held that the nikah
was unconscionable, that wife did not understand the terms
and import of the contract, she had had no independent legal
advice, husband took advantage of a significant disparity of
bargaining power, and the consequences were unconscionable because the wife was entirely dependent on husband while she was in Canada. The court found that the
terms of the contract were too vague to be sure that support
was in fact waived. (The court also held that the signing of
the “sponsorship agreement” by the husband had the effect
of undoing any support waiver).36
Neutral principles of law have also been used to invalidate nikah agreements. For example, in Habibi-Fahnrich v.
Fahnrich37, an Islamic marriage agreement providing for “a
ring advanced and half of husband’s possessions postponed”
was deemed unenforceable in New York for failure to adhere
to the Statute of Frauds because a) material terms were not
agreed upon, i.e. what is “one half,” what is “one half interest” and what is the extent of “interest,” b) the contract was
not specific, i.e., “possession” and definition of “one half of
the possessions,” and c) the term “postponed” is left undefined and further clarification is left up to the reader to determine, and d) the agreement was insufficient on its face.
Similarly, in In re Marriage of Dajani38, the California
court refused to enforce a mahr because it contravened public policy of promoting divorce by providing for a set
amount to be awarded to the wife in the event of a divorce.39
In other words, the Dajani court interpreted the nikah agreement under neutral principles of prenuptial agreement law
that was in existence in California at the time the case was
decided.
In cases where the courts would have had to resort to
interpretations of Shari’a to determine the meaning of the
agreement, courts were much less likely to enforce the agreement. For example, in Shaban v. Shaban40, the marital agreement was executed in Egypt and it barred the wife from
obtaining anything upon divorce other than mahr. The agreement provided that “The above legal marriage has been concluded in Accordance with his Almighty God’s Holy Book
and the Rules of his Prophet to whom all God’s prayers and
blessings be, by legal offer and acceptance from the two contracting parties.” The California court held that even if the
language might have indirectly indicated a desire for the
marriage to be governed by the rules of the Islamic religion,
it simply bore too attenuated a relationship to any actual
terms or conditions of a prenuptial agreement to satisfy the
statute of frauds, and was held to be unenforceable as a premarital agreement.
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45
ARTICLES AND COMMENTS
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It is important to note that in many states, if the nikah
agreement is to be analogized and is sought to be enforced as
a “premarital” or a “prenuptial” agreement, particular requirements of that state’s premarital agreement laws must be
adhered to in order to make it enforceable. Such requirements
may include, by statute, full disclosure of all assets and liability, access to legal advice, a specific “waiting period” between
the time the contract is presented and it is signed, etc.41
Although the reading of these cases make it difficult to
generalize, it appears that where the conscience of the court
is not offended by the terms of the agreement (or in contrast,
where the conscience of the court is so shocked by the terms
of the mahr as to make it difficult to enforce), courts have
resorted to using “neutral principles of contract law” to interpret and validate (or invalidate, as the case may be) these
religious marriage contracts. If the agreement met the
requirements of Statute of Frauds, and if parol evidence may
be used to interpret but not to alter the agreement it will generally be deemed irrelevant whether such agreement was
entered into as a “religious contract.” The cases reveal that
courts have paid a lot of attention to the circumstances under
which the agreement was negotiated and signed.
CONFLICTS BETWEEN ISLAMIC AND NORTH
AMERICAN MARRIAGE/DIVORCE LAWS
Numerous other issues arise in family law cases where
the Islamic parties contracted marriages in Islamic countries,
or contracted marriages in Western countries but only in
accordance with Shari’a without civil solemnization.
For example, where the parties enter into a religious
marriage in a Western country but do not solemnize it in
accordance with the laws of the Western country, such marriages will generally be deemed void. To understand the difference between Islamic marriages and Western countries’
civil marriages: Most Western countries deem marriage to be
a creature of statute and thus permission must be obtained
from the state and compliance with the solemnization laws
must be strictly adhered to. In contrast, Islamic marriages are
a product of contractual agreements between the parties (or
their families), and even though certain Shari’a laws and
procedure must be followed, the Islamic marriage is not a
creature of statute, it is a creature of contract. This is true,
even if, as is the case in some Islamic countries, registration
of the marriage is mandatory. Even in those countries where
registration of marriage is mandatory, failure to officially
register does not render the relationship adulterous nor does
it de-legitimize the children, it may only deprive the parties
of benefiting by some of the legal rights the country affords
validly registered marriages.
46
Rights and obligations of marriage are accorded by
Western countries only to those who abide by and conform
to the specific marital ceremonies prescribed by the states or
the countries in which they resided at the time of marriage.42.
Therefore, is the results reached in a case such as Farah v.
Farah43, are not surprising. In Farah, the Pakistani Muslim
couple signed a proxy nikah agreement in London, England,
that provided for a $20,000 mahr, but neither party was present during the proxy ceremony in England. In a divorce case
filed a year later, the Virginia (U.S.) court held that the marriage was invalid because English law requires certain formalities for a marriage to be valid and does not recognize the
type of proxy marriage which these parties entered into.
Therefore, if the marriage was deemed to be void ab initio
under English law where the marriage was celebrated, it is
not recognized as a valid marriage Virginia. This, despite the
fact that under Islamic law in Pakistan, such a proxy nikah
agreement is perfectly valid. (The Virginia court held, in
dicta, that if the proxy marriage had occurred in Pakistan
where proxy marriages are deemed valid, the Virginia court
would have enforced the nikah agreement absent any public
policy against its enforcement).
In the case of Moustafa v. Moustafa44, the tables were
turned and the wife was granted annulment in Maryland on
the grounds of bigamy. The Maryland court was asked to
apply Egyptian law by the husband who claimed that he
divorced his first wife, married the second wife, remarried
the first wife without obtaining a divorce from the second
(without first wife’s knowledge), and then renounced his
marriage to the first wife in Egypt. Thus, husband asserted
that Maryland had no jurisdiction to annul a marriage that no
longer existed. Unfortunately for husband, the Maryland
court held that the renunciation of the marriage in Egypt was
to be given no effect in Maryland as wife had never been
notified nor participated in the proceeding in Egypt, and
since the husband did not properly bring before the court any
Egyptian law that he claimed allowed him to have more than
one wife, wife was granted the annulment.
One of the most recent cases illustrates the strict scrutiny to which courts subject a party who claims divorce or
marriage rights pursuant to laws of other countries (at least
where religious issues intersect with the secular laws of the
state). In Aleem v. Aleem45, wife filed for divorce in Maryland
and while the case was pending, husband rushed to the
Pakistani Embassy and performed talaq. Husband then
claimed in the civil court of Maryland that since he had
already divorced his wife under Pakistani law, wife was entitled solely to her mahr of $2,500 that the Pakistani courts
allow her, and not her half of the jointly acquired assets
which amounted to approximately $2 million. The Maryland
Court found that talaq lacks any significant “due process for
the wife” and the lack and deprivation of due process is con(continued on Page 47)
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ARTICLES AND COMMENTS
(continued from Page 46)
trary to Maryland’s public policy; thus talaq was denied any
comity, and wife was entitled to proceed with her divorce in
accordance with Maryland civil law.
CUSTODY ISSUES IN ISLAMIC MARRIAGE CASES
Custody cases involving Islamic parties prior to the
enactment and the adoption by most of the states in the U.S.
of the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) were generally decided based upon a determination of whether the foreign Islamic court merely rubberstamped the Shari’a law (hadana) and granted father custody of children over a specific age, or whether the Islamic
court also engaged in a “balancing test” of what was in the
best interest of the child.
For example, in Ali v. Ali46, the Shari’a court in Gaza
granted a divorce and custody of the child to father who had
returned to Gaza with the child after having lived in New
Jersey with the mother for two years (mother remained in
New Jersey). The New Jersey court not only held that the
child’s “home state” was New Jersey, but also held that the
Shari’a court’s decision was arbitrary, capricious and not
sanctioned by the court as being in the best interest of the
child. The New Jersey court appeared to be offended by the
fact that under Shari’a law, the father is automatically and
irrebuttably entitled to custody when a boy is 7 years old,
without examining whether such custodial award is in the
best interests of the child.
For a long time, the seminal case of Hosain v. Malik47,
was the leading case cited by many courts in ruling upon the
issue of enforcing a custody order issued by an Islamic court.
In Hosain v. Malik, both parties were citizens of Pakistan.
After the marriage dissolved in Pakistan, father sued for custody of their daughter, and mother fled to the U.S. with the
child (she had a student visa) where she moved in with a man
and conceived another child whom she hid from the father
for two years. Mother was represented by counsel in the
Pakistani custody proceeding but she refused to appear in
person and refused to obey the Pakistani judge’s order that
the child be produced; the father was awarded custody by the
Pakistani court. Thereafter, the father sought enforcement in
Maryland of the Pakistani order granting him custody, while
mother filed a complaint in Maryland requesting custody and
a restraining order against the father. Islamic experts on both
sides testified that the Pakistani court was required to consider the welfare of the child, but the experts disagreed about
whether the court applied the best interests test or if it based
its decision solely on hadana (referred to as hazanit in the
opinion, although it is more accurately called hadana). The
appellate court agreed that the Pakistani custody decree,
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
granting father custody, should be enforced, because it found
that the Pakistani court considered the “child’s best interest”
as well as hazanit (hadana)48 when it made the custody determination. More importantly, the appellate court also held
that the trial court could properly determine the best interest
of the child “by applying relevant Pakistani customs, culture
and mores.”49 The court went on to acknowledge that hadana
was similar to “the traditional maternal preference” once
applicable in Maryland that “are based on very old notions
and assumptions (which are) widely considered outdated,
discriminatory, and outright false in today’s modern society,”
but that, ”We are simply unprepared to hold that this longstanding doctrine of one of the world’s oldest and largest
religions practiced by hundreds of millions of people around
the world and in this country, as applied as one factor in the
best interest of the child test, is repugnant to Maryland public policy.”50
It is important to note in this case that the Pakistani
court’s decision rested on several factors:
a) Mother forcibly removed the child from the father’s
access (under hadana father is always the legal guardian
of the child, regardless of the child’s age, and regardless
of the mother’s physical custodial preferences for children under a certain age)
b) Mother lived with another man in adultery and had a
child with him (her right under hadana to physical custody of children under a certain age was no longer applicable to her)
c) Child was living in a non-Islamic society (this, too, is
one of the factors in which hadana will be forfeited by
the mother)
d) Father was living in an Islamic society (this coupled
with the other three factors above, rendered father eligible to have custodial rights of the children even though
they may be under the age under which hadana grants
custody to the mother)
Although the mother argued that the Pakistani court
penalized her for not appearing at the custody hearing, and
that if she had appeared, she would have been arrested and
severely punished for adultery, the Maryland court held that
there was nothing repugnant or even foreign for a court considering adultery or failure to appear in court as factors in
determining the best interest of the child. The important factor in the court’s decision was that the mother had an opportunity to be heard and that she decided not to take it.
In Amin v. Bakhaty51, the parties married in Egypt. The
father was also a citizen of the United States and spent the
majority of his time in New Jersey tending to his anesthesiology practice. He would visit Egypt at most six times a year,
for a week to 10 days at a time, but he did not stay with his
wife or their child while he was in Egypt. When the mother
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traveled to United States with their son and searched for an
apartment in Louisiana near her family where they (mother,
son, and father) would reside, the father brought criminal
charges against the mother in Egypt for removing the minor
child from the country without his permission, and for fraud
in her procurement of son’s Egyptian passport, which she
obtained without his consent. (Note that, under the doctrine
of wilaya, father has the right to sole legal guardianship of a
child and he has the sole right to determine where the child
is educated, whether and when he obtains a passport, etc.)
Mother was convicted in Egypt, in absentia, and sentenced
to serve three years’ imprisonment, while father received
sole custody of the son after a Talak divorce in Egypt. (Note
that this case was determined under the UCCJA52, before the
UCCJEA53 was enacted). The trial court in Louisiana found
that it had jurisdiction to determine custody and support for
the child, it declined to recognize Egypt as the child’s “home
state” under the UCCJA, and granted interim custody to
mother and ordered father to pay $850 per month in child
support. The appellate court affirmed, finding that the lower
court’s holding that Egypt was not a “state” under the UJJCA
was a discretionary one and not erroneous. It also held that
the Egyptian law that mandates both temporary guardianship
and physical custody of the child to be exclusively with the
father does not abide by the “best interest of the child” standard and thus the Egyptian court’s decision on custody was
not binding on Louisiana. (It is quite possible that a reverse
decision would have been made under the new UCCJEA —
see discussion below).
With the adoption of the new UCCJEA in the latter part
of the 1990s and early 2000s in almost every state54 in the
United States, the picture for enforcement of custody orders
from foreign countries, especially those from Islamic countries changes drastically. It should be noted first and foremost, that almost none of the Islamic countries are signatories to the Child Abduction provision of the Hague
Convention. Thus, Islamic countries are not bound to
enforce a U.S. custody order. Notwithstanding that fact, the
UCCJEA has a provision adopted by most of the states in the
U.S. which provides:
“(a) A court of this state shall treat a foreign country as
if it were a state of the United States for the purpose of
applying this chapter and Chapter 2 (commencing with
Section 3421).
(b) Except as otherwise provided in subdivision (c), a
child custody determination made in a foreign country
under factual circumstances in substantial conformity
with the jurisdictional standards of this part must be
recognized and enforced under Chapter 3 (commencing
48
with Section 3441).
(c) A court of this state need not apply this part if the
child custody law of a foreign country violates fundamental principles of human rights.”55 (Emphasis added)
Thus, this provision of the UCCJEA now mandates that
child custody determinations made in a foreign country
(regardless of whether such foreign country is a signatory to
the Hague Convention) are to be recognized much the same
as those of a sister state, unless the child custody law of a
foreign country violates fundamental principles of human
rights. No case has yet made a determination whether application of hadana violates “fundamental principles of human
rights.”
Nevertheless, the case of Tostado v. Tostado56 is illustrative of the application of this section of the UCCJEA. In
Tostado the court was faced with a request to enforce a
Mexican court order for custody. The court held that the foreign court’s judgment for custody is “presumed to be correct,” and the presumption “shifts to the party contesting the
order, who has the burden of proving by a preponderance of
the evidence that the foreign court judgment violates principles of human rights” (emphasis added). The court went on
to state that with the amendment of the UCCJEA in 2001 in
Washington State, the court could no longer consider the
substantive laws of a foreign country when deciding whether
to enforce a foreign custody decree or whether to assume
jurisdiction to make its own initial determination. The court
held that this re-codification of the UCCJEA in 2001
removed the “best interest of the child” language because it
“tended to create confusion between the jurisdictional issue
and the substantive custody determination.”57
RELIGIOUS COURTS AS ARBITRATORS IN
DIVORCE/CUSTODY CASES
In many of the states in the U.S., arbitrators can make
binding decisions on issues relating to property division and
spousal support. Arbitrators, however, are generally prohibited from making binding decisions on custody and child
support58 issues, as these remain solely within the purview of
the courts and their jurisdiction over these issues cannot be
taken away from them. Arbitrators in most U.S. states do not
have to be attorneys or retired judges — anyone, without any
specific qualifications, can act as an arbitrator. Of course,
religious courts have always been used by religious parties to
arbitrate or rule upon religious divorce issues, to wit, determine whether and under what circumstances a wife may religiously divorce her husband, the proper procedure to be used
by the husband to divorce his wife, etc.
However, it has become customary in the U.S. and in a
number of provinces in Canada59 to also use religious courts
to resolve property disputes, spousal support (alimony) and
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even custody issues, by empowering these religious courts to
act as “binding arbitrators.”
The use of Islamic religious court as the arbitrator in resolution of property, support and custody cases has become a
virtual cottage industry. The difficulty with religious courts
acting as arbitrators with binding authority is that, first, with
rare exceptions, religious court arbitrators are not attorneys,
they are often unfamiliar with the state’s or the province’s
laws on divorce, property, support and custody issues;
Shari’a courts tend to rule in accordance with Islamic law,
which is likely to give deference to the nikah agreement and
to Shari’a family law rather than to civil law; and with the
exception of issues relating to custody and child support,
binding arbitration by the Shari’a court (indeed from all arbitrations except on custody and child support issues) will
mean there is no appeal nor a trial de novo from the Shari’a
court’s decision. This will often mean that women are likely
to lose much of their civil family law rights in an Islamic
court, as Shari’a is disparate in its treatment of women relative to divorce issues. Islamic family courts are also likely to
give great weight to a man’s testimony and much less so to
the woman’s because Shari’a gives a woman’s testimony
half the weight of a man’s (or two women’s testimony equals
that of a man)60.
Additionally, even in states in which no-fault divorce
mandates equal division of marital property, the Islamic court
will indeed give greater weight to “fault” in determining
property and support rights for the woman; this, of course,
inures to the detriment of the woman, as a man has unfettered
power, under Islamic law, to divorce his wife even if she
doesn’t merit it, while a woman must prove serious fault in
the man to enable her to divorce him and still be entitled to
retain her mahr. Finally, if the marriage is of long duration
and the nikah agreement provides for a much lesser mahr
than one half the marital property, the wife is likely to receive
nothing but her mahr; even more importantly, she will not
likely receive any support after her ‘idda of three months following the divorce.
In sum, submitting to an Islamic court for a binding arbitration award of property division and spousal support
(alimony) is, in most cases, very dangerous for the woman
and is likely to subject her attorney to claims of malpractice.
Interestingly, in the Canadian provinces of Ontario and
Quebec, religious court arbitrations of family law matters
have either been entirely forbidden or have been substantially curtailed so as to prohibit application of religious law to
family law matters61. Precisely for the reasons set forth
above, those Canadian provinces have concluded, after much
research and public comment, that Islamic women have been
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
increasingly pressured by imams and by their Islamic communities to submit to religious court arbitration of their family law issues. These women have been warned by their religious leaders that submission to the religion mandates that all
conflicts, including divorce/property/support/custody issues,
must remain within the purview of the Islamic court, not the
civil court.
Nevertheless, it should be remembered that under
Islamic law, a woman is not deemed to be divorced until
either her husband properly pronounces talaq three times in
the manner specifically set forth in the particular tradition of
the Islamic court or jurisdiction that the parties follow, or the
Islamic court issues a religious divorce to the woman,
whether by khula or by tafriq.
Even if a civil divorce has been granted to the parties,
unless there is a religious divorce accomplished as required
under Shari’a, the parties are deemed not to be divorced in
some Muslim jurisdictions62. In those jurisdictions requiring
a Muslim divorce as well, if a woman remarries after having
received only her civil divorce but she has not been religiously divorced, she may be deemed to an adulteress with grave
consequences to her in her native Islamic country or perhaps
another Islamic country she may visit. (As has been widely
publicized, in some Islamic countries an “adulteress” is still
subject to lashes, stoning, loss of custody of her children or
other means of severe punishment. Adultery is not only considered an extremely serious crime under Shari’a but in
many Islamic cultures, it is grounds for honor-killing of the
adulteress to reclaim the family’s honor). This issue, therefore, should not be easily dismissed.
Warning to practicing family law attorneys: Because
Islamic family law varies in interpretation and application of
Shari’a family law from one Islamic country to another (or
even from one region in a country to another), in any case
involving Islamic marriages, divorces, nikah agreements
and/or custody issues, it is imperative that a legal expert from
the particular country whence the parties hail, or to which
either of them wish to return, be retained to explain to the
civil Western courts precisely what family laws operate in
that particular Islamic country, and how the rights of each
party and the children are likely to be affected by those laws.
1
First Amendment to the U.S. Constitution, which provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof …”; Canadian Charter of Rights and Freedoms
states that certain freedom are guaranteed and are subject “only to such reasonable limits that prescribed by
law as can be demonstrably justified in a free and democratic society (among which freedoms are “freedom of
conscience and religion,” but are subject to legislative
(continued on Page 50)
49
ARTICLES AND COMMENTS
(continued from Page 49)
2
3
4
5
6
7
8
9
10
50
amendments of the provinces.
FAZLUR RAHMAN, ISLAM 117 (Anchor Book, 1968).
See, e.g., Javaid Rehman, The Sharia, Islamic Family
Laws And International Human Rights Law: Examining
The Theory And Practice Of Polygamy And Talaq, 21
INT’L J.L. POL’Y & FAM. 108, 110 (2007) (“Islamic family laws derive from two fundamental sources of the
Sharia: the Quran and the Sunna ... According to the
Islamic faith, every word of the Holy Quran is divine
and cannot be challenged.”).
E.g., id. at 109-112 (“[I]t is important to comprehend the
metamorphosis, growth and contextualization of the
Sharia. The labyrinth of religious, ethical and moral raw
materials ... were given shape and direction by Islamic
scholars and jurists ...”).
E.g., id. at 118-19 (discussing divergence of Shari’a
family law in, inter alia, Iran, Pakistan, and Egypt); see
also Kristen Cherry, Marriage And Divorce Law In
Pakistan And Iran: The Problem Of Recognition, 9
TULSA J. COMP. & INT’L L. 319, 320 (Fall 2001)
(“Essential to understanding the marital laws of
Pakistan and Iran is to understand that while both are
Islamic law countries, they each adhere to different sects
of Islam; thus, explaining some key differences in their
laws.”)
E.g., Rehman, supra, note 2, at 110.
E.g., id. at 111.
E.g., id. at 110 (“While meticulously noted down, and
revealed in stages during the lifetime of the Prophet, the
Quran was produced as an authentic text only during the
currency of the third Caliph Hazrat Uthman [internal
citations].”); id. at 111 (“The Sunna of Muhammad
therefore is preserved and communicated to the succeeding generations through the means of hadiths.
While the Quran was recorded within a relatively short
time, the recording of the Sunna took a much longer
period.”) (internal citations omitted).
E.g., id. at 111-12 (“In understanding Islamic family
laws it is important to comprehend the metamorphosis,
growth and contextualization of the Sharia. The
labyrinth of religious, ethical and moral raw materials
derived from the two principal sources, Quran and
Sunna, were given shape and direction by Islamic scholars and jurists during the second and third centuries of
the Muslim calendar.”).
E.g., id. at 112 (“The codification of the Sharia within
Sunni Islam was principally the work of four jurists ...”);
the main Sunni Schools are Hanafi, Maliki, (these two
being the most widespread). Shafi’i schools and the
11
12
13
14
15
16
17
18
19
20
Hanbali school which is limited to the Wahhabi interpretations in Arabia. Islamic Family law in a Changing
World — A global Resource Book, Edited by Abdullahi
A An-Na’im, Zed Books Ltd Publishers, at pg 5-6.
Imami or Ithna’Ahsari school in Iran Iraq & Lebanon,
and the Zaydi in Yemen — Marriage on Trial, Ziba MirHosseini, at pg. 6.
See, e.g. Kristen Cherry, Marriage And Divorce Law In
Pakistan And Iran: The Problem Of Recognition, 9
TULSA J. COMP. & INT’L L. 319, 320 (Fall 2001)note 5,
at 320 (“Essential to understanding the marital laws of
Pakistan and Iran is to understand that while both are
Islamic law countries, they each adhere to different sects
of Islam; thus, explaining some key differences in their
laws.”).
Even the cost of obtaining an Islamic divorce is disparate. For example, the Islamic Shari’a Council in
London charges men £100 for a talaq dissolution, while
it charges women £250 for a khula dissolution. (Of
course, the ostensible large disparity may be explained
by the differing procedures — men can automatically,
without the wife’s consent, pronounce talaq, talaq,
talaq, and they are divorced, while the wife’s seeking a
khula dissolution involves several summonses, mediation requirements, etc. (See attached Exhibit “A” —
Application forms for a talaq dissolution, and a khula
dissolution).
David Pearl, A Textbook On Muslim Personal Law,
§3.1.1 (2d ed., Routledge 1987).
Ziba Mir-Hosseini, The Construction Of Gender In
Islamic Legal Thought And Strategies For Reform,
Prepared for Sisters in Islam Regional Workshop,
‘Islamic Family Law and Justice for Muslim Women,’
Kuala Lumpur, Malaysia (June 8-10, 2001), at page 7.
Ziba Mir-Hosseini, Marriage on Trial: Islamic Family
Law in Iran and Morocco at 36 (I.B.Tauris, 2d ed.
2000).
See, e.g., Marriage on Trial, supra, note 17, at 34-36.
id.
‘idda is a waiting period of three menstrual cycles following a divorce, during which time wife is not permitted to remarry — that was to assure that if she is pregnant, parentage of the child is known to be that of the
man from whom she was divorced, rather than that of
her new husband. Marriage on Trial, id at 37.
In some Islamic countries, such as Jordan, Malaysia,
Syria and Iran, courts may order alimony for a year or
two as compensation to the innocent wife; and Iranian
courts may order compensation to the wife for household work she performed during marriage because under
Shi’a, and even under some Sunni schools, a wife has no
obligation to perform household tasks during marriage,
(continued on Page 51)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ARTICLES AND COMMENTS
(continued from Page 50)
21
22
23
24
25
26
27
28
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30
and thus, having done so voluntarily, she may be compensated for same by the court.
Marriage on Trial id.
In reality, however, few Muslim women have the financial and emotional power to obtain such a concession in
the nikah agreement, and many Muslim women are
unaware that they have the right to demand such a provision in their nikah agreement.
Wife’s right to work during the marriage is limited in
most Islamic countries by Shari’a law that prevents her
from doing so if husband prohibits her or limits the type
of employment she may undertake, at the sole discretion
of the husband.
Marriage on Trial, id. at 164-165.
Marriage On Trial, id. At 165.
Certain exceptions may prevail but are of no significance in terms of this article, and will not be discussed.
However, under the Shafi’I school, once the children
reach puberty, the court may either ask the children to
decide which parent should have physical custody, or
the court may decide under a “best interest of the child”
test. Egypt, for example, codified this Shafi’i opinion in
its 2005 family statutes relating to child custody.
Source: Hosain v. Malik, 108 Md. App. 284 (Md.Ct.
Spec. App. 1996)
Readers of this article outside the U.S. must remember
that there is no such thing as federal marriage/divorce/
custody laws in the U.S. — each of the 50 states has its
own marital laws and its own jurisprudence relating to
family law issues. While there are certain laws that may
have been commonly adopted by almost all of the states,
such as the UCCJEA [Uniform Child Custody
Jurisdiction & Enforcement Act] even the interpretation
of such uniformly adopted laws may differ from state to
state. The Uniform Premarital Agreement Act, for example, has been adopted by some states, but by no means
universally. However, even those states that have adopted it, have amended or deleted certain of its provisions.
Thus, in looking to the courts to determine validity and
enforceability of nikah agreements, only analogies, not
hard and fast rules, may be drawn from one state’s interpretation when using it for another state; thus the identical nikah agreement may be enforced in one state while
it is given no civil validity in another. The same may be
said for Canada. Each of the provinces has its own family laws, and interpretations of identical nikah agreements may vastly differ between them.
Odatalla v. Odatalla 355 N.J. Super. 305 (New Jersey
2002).
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
31
32
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34
35
36
37
38
39
40
41
42
43
44
Akileh v. Elchahal 666 So.2d 246 (Florida 1996).
Nathoo v. Nathoo 1996 A.C.W.S.J. Lexis 97207; 1997
A.C.W.S.J.41320; 68 A.C.W.S.(3d) 487 (British
Columbia 1996).
Id.
Khan v. Khan (Ontario 2005) 2005 A.C.W.S.J. Lexis
3266.
Caution must be advised in interpreting these cases as
they are not only fact specific, but also province or state
specific. Certain Canadian provinces, and certain states
in the U.S., for example, tend to exhibit a more jaundiced view toward toward religious contracts that
deprive one party or the other of rights deemed by civil
law to be important protections. For example, waiver of
spousal support/alimony is an important issue in numerous provinces or states because waiver of a spouse’s
obligations of supporting the other spouse in the event
of divorce will mean a drain on the public coffers.
Because a nikah agreement presupposes imposition of
Shari’a family law wherein the wife is not entitled to
support beyond the time of her idda period (two months)
following the divorce, this may run afoul of support
rights under civil law. Additionally, certain states allow
waivers of support in premarital agreements, while other
states prohibit them. Thus, interpretation of a nikah
agreement as a waiver of support as well as the sole entitlement to property division will also have an impact on
whether the particular state in the U.S. or in the
Canadian province will enforce same. As an example, in
Avitzur v. Avitzur, 446 N.E.2d 136 (1983), N.Y. enforced
the ketubah (a Jewish marriage agreement) in mandating
that the husband give the wife a get (a Jewish divorce),
Habibi-Fahnrich v. Fahnrich (N.Y. 1995 No. 46186/93
1995 WL 507388 (N.Y.Supp., 1995) (New York).
In re Marriage of Dajani, 251 Cal.Rptr. 871 (1988)
(California).
Query whether the Dajani case would meet a different
result today, as the California prenuptial agreement law
has since been changed.
Shaban v. Shaban 88 Cal. App. 4th 398 (2001)
(California).
See for example, California Family Code §1600-1620
Even states such as Texas, that recognize “common law
marriage” [wherein parties living together for a minimum of a prescribed time period and are deemed to have
been married even without undergoing a marriage ceremony] have prescribed requirements for meeting the
standards of “marital status”. See Tex. Fam. Code Ann.
§2.401.
Farah v. Farah 16 Va. App. 329 (Virginia App. 1993).
Moustafa v. Moustafa 888 A.2d 1230 (Maryland, 2005).
Aleem v. Aleem 404 Md. 404, 947 A.2d 489 (Maryland
(continued on Page 52)
51
ARTICLES AND COMMENTS
(continued from Page 51)
55
56
45
46
47
48
49
50
51
52
53
54
2008).
Ali v. Ali 279 N.J. Super.154 (New Jersey 1994).
Hosain v. Malik 108 Md. App. 284 (Maryland 1996).
See supra for definition of hadana.
Hosain v. Malik supra, at 288.
Hosain v. Malik, supra, at 318-319.
Amin v. Bakhaty 798 So. 2d 75 (Supreme Court of
Louisiana, 2001).
Uniform Child Custody Jurisdiction Act.
Uniform Child Custody Jurisdiction and Enforcement
Act.
Missouri, Massachusetts, New Hampshire and Vermont
are the only states in the U.S., and Puerto Rico, a U.S.
territory, that have not adopted the new act.
This is the California statutory adoption of the UCCJEA
— see California Family Code Section 3405. Most other
states which have adopted the UCCJEA have very similar or identical language. Only the New Jersey version
of the UCCJEA has a specific exception providing that
a foreign country’s laws or judgments regarding custody
will not be enforced if does not base custody decisions
on evaluation of the best interests of the child. N.J.S.A.
2A:34-57.
57
58
59
60
61
Tostado v. Tostado 137 Wash. App. 136 (2007
Washington).
Uniform Child Custody Jurisdiction and Enforcement
Act, §201 cmt., 9 U.L.A. 672 (1999).
In re Marriage of Goodarzirad (1986) 185 Cal.App.3d
1020; Armstrong v. Armstrong (1976) 15 Cal.3d 942; In
re Marriage of Bereznak & Heminger (2003) 110
Cal.App.4th 1062.
See exceptions detailed in the discussion in succeeding
paragraphs.
Islamic Shari’a Council, London, England: Surah AlBaqara 2:282.
Ontario Statute: Family Law Statute Amendment Act
2006 S.O. 2006 (Ontario forbids all arbitrations by religious courts); Quebec Statute: Article 394 of Code of
Civil Procedure (Arbitration by Advocates) No arbitrations permitted in family law cases.
The Islamic Shari’a Council in London notes that a civil
divorce may be sufficient to deem the parties divorced
under Islamic law; and in contrast, the Islamic Shari’a
Council advises parties on their application for religious
divorce that their religious divorce does not absolve
them of their obligation to obtain a civil divorce. In contrast, the published Fatwas from Leader’s Office in Qom
(Iran), maintain that secular divorce “does not obviate
the need for an Islamic divorce.”
CHILDREN’S PLAYROOMS IN THE COURTS: NEW DVD AVAILABLE
National Council Of Jewish Women, Pittsburgh Section,
(NCJW) has operated child care centers in the Allegheny
County Courts for nearly 30 years. These rooms, well known
to and supported by the Family Law Division of the
Allegheny Bar Association, provide a stress-free and safe
environment for children whose families are involved in
court proceedings. Most recently, the program has expanded
to provide for jurors’ children with advance registration.
Now a DVD is available that depicts all three of these
bright, cheerful children’s playrooms — Family, Municipal
and Criminal Courts. Produced through the auspices of the
Allegheny County Bar Association’s videography department, the purpose of this DVD is threefold:
First, it will be played in the courts and on various organizational Web sites so that caregivers will feel comfortable
in leaving their charges in the care of the volunteers and staff.
52
Second, it will be utilized to inform lawyers and lay people
that this service exists. Lastly, the DVD will be used to
recruit volunteers.
NCJW urges members of the Family Law Division to
assist in distribution of this information by showing the DVD
to constituents, clients, organizations and associations, or
anyone who might benefit from the services provided in the
rooms.
The DVD is available by calling National Council of
Jewish Women, Pittsburgh Section, 1620 Murray Avenue,
Pittsburgh, PA 15217, (412) 421-6118, or e-mailing adminasst
@ncjwpgh.org.
To defray the cost of production and distribution a donation is requested of at least five dollars ($5.00). Anyone who
orders a copy of the DVD is welcome to retain it and distribute it to any interested parties.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Technology Corner: Joel B. Bernbaum, Esq.
bernbaum@kanepugh.com
Alicia A. Slade
slade@plummerslade.com
BITS AND BYTES 2000
BY JOEL B. BERNBAUM
The end of the year 2000 is fast approaching
and I am determined to avoid a column on Y2K or
the millennium. Too much has been written on these
topics. But I can’t deny the urge to look to the past
and future use of technology in the law.
The year is 1985; the Chicago Bears are the
most feared team in the NFL and go on to win the
Super Bowl. My secretary is transcribing my tape
on her IBM Selectronic II — the new electric typewriter with built-in correction tape, interchangeable metal balls (each with different type face),
automatic return and other features — which
replaces the old manual typewriter. Why there is not
even a carriage return. What will they think of next?
I go down the hall to word processing where one of
the secretaries transcribes my property settlement
agreement. The 35-page document will take several
hours to prepare on the huge machines. The documents are stored on large disks, no permanent memory in these word processors. While I wait for the
draft to proofread, I go to the library to research my
brief that is due in a week. The new Lexis service
has just been installed and since I completed my
two hours of training, another partner expects me
to teach him how to use it. This technology did not
exist when we graduated law school in the early
‘70s. The one terminal is being used so I turn to the
microfilm archive of law review articles to start.
Joel B. Bernbaum is Counsel to the Norristown law firm of
Kane, Pugh, Knoell & Driscoll, Technology Corner CoEditor of the Pennsylvania Family Lawyer and a member of
Council of the PBA Family Law Section. Alicia A. Slade is a
Technology Consultant and the President of Plummer Slade,
Inc., a computer networking firm that has been specializing
in providing computer networking and business solutions to
law offices since 1988 and Technology Corner Co-Editor of
the Pennsylvania Family Lawyer.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
When I get back to my office, I proof my correspondence, make corrections by hand and give
them back to my secretary who will try to “white
out” some mistakes, but will have to retype most of
them before mailing. I tell my secretary to have one
of the letters hand-delivered by our messenger. The
office manager has delivered the monthly billing
printout. Our firm has 65 lawyers and we have five
secretaries in the billing department to input the
billing data on the large mainframe computers. I
make the corrections and return the three-inch thick
stack of paper (continuous perforated sheets) to
billing. I’ll get the corrected bills in a couple of
days. On my way back to my office, I pick up the
stack of pick message slips and begin to return
phone calls.
The personal computer did not exist 20 years ago. Today,
new technology has improved our productivity. Now, lawyers
and secretaries all have computers that are more powerful
than a room full of mainframes and they are networked and
share resources. I can dictate to my digital transcription system and make corrections directly on my computer before
any documents are printed. A finished document looks as if
came from a printing press (remember those little dots?). The
turnaround time is minutes not hours. Each attorney in our
firm has direct access to the Internet for research. E-mail has
replaced pink message slips. Faxes can be sent from computers or through stand-alone machines. Documents can be sent
instantly by e-mail or fax. The era of a paperless office is on
the horizon. Cell phones, digital cameras, palm size computers and scanners are wonders that did not exist 10 years ago.
Today they are becoming inexpensive necessities. Time and
billing software, combined with the power of today’s computers generate bills in hours not days. Look around your office
and you will find some form of technology that didn’t exist
10 years ago and you wonder how you got along without it.
(continued on Page 54)
53
TECHNOLOGY CORNER
(continued from Page 53)
Ten years from now, technology will continue to change
the practice of law. Wireless networking will do away with
the tangle of wires around every desk. Your computer will be
the center of your universe. The telephone and dictation
machine will be built into the small palm-sized computer that
you plug into your network each morning and take home
with you at night. Flat, 21-inch monitors will take up very little room on your desk and video conferencing from tiny
Legislative Update:
This article updates the legislative history of the bills
summarized in the March, May, October and December 2009
Legislative Updates. In addition, this article summarizes several other domestic relations bills introduced in the 2009-10
legislative session of the Pennsylvania General Assembly
since the previous Legislative Update. Status of each bill is
provided as of Feb. 12, 2010. The full text of the bills, as well
as their legislative history, may be found by following the
link “Session Info” at www.legis.state.pa.us.
attached cameras will be the norm. Digital storage devices
will replace paper. High-speed printers will generate documents as necessary. Your digital files will be read online
rather than stored in file cabinets. Most face-to-face business
will be replaced by online conferences conducted over the
Internet. Pleadings will be digitally filed and accessed from
your office. Documentary evidence will be in digital form
and our future courtrooms will use computers for exhibits,
dockets and witness testimony. Distance will no longer be a
barrier to legal representation. Twenty-five years from now,
trials will be conducted online not in person. Change is
inevitable; technology is only limited by our imaginations.
Steve Rehrer, Esq.
srehrer@legis.state.pa.us
As previously noted in the October 2009 Legislative
Update, House Bill 270 (marriage), which became Act 18 of
2009, was approved by the governor on July 14, 2009, and
took effect immediately.
tody), 541 (Domestic Relations Court Judges Commission),
564 (custody), 690 (support), 768 (adoption), 887 (custody;
paternity), 909 (adoption), 967 (adoption), 1140 (paternity),
1347 (custody), 1372 (liability for the tortious acts of children), 1525 (adoption), 1586 (funds for the Children’s Trust
Fund), 1588 (funds for victims of domestic violence), 1639
(custody), 1719 (adoption), 1814 (forfeiture under intestate
succession), 1861 (funds for victims of domestic violence),
1968 (adoption), 1978 (adoption), 2046 (family law adjudication system) and 2082 (adoption).
Senate Bills 49 (alimony), 230 (paternity), 397 (support), 410 (sibling visitation), 434 (liability for the tortious
acts of children), 571 (support), 625 (adoption), 854 (custody), 919 (funds for the Children’s Trust Fund), 920 (funds
for victims of domestic violence), 935 (marriage) and 943
(alimony).
Updates
ADOPTION
The following bills, summarized in the March, May,
October and December 2009 Legislative Updates, have not
advanced further in the legislative process:
House Bills 90 (child abduction prevention), 120 (death
during a divorce proceeding), 295 (sibling visitation), 305
(support), 433 (adoption), 434 (adoption), 435 (adoption),
437 (adoption), 438 (adoption), 463 (custody), 537 (cus-
House Bill 1907 (Printer’s No. 2860; Prior Printer’s No.
2552) was approved by the House on Nov. 17, 2009 by a vote
of 189-0 and referred to the Senate Judiciary Committee on
Nov. 25, 2009. The bill adds a new section 2911 to the
Adoption Act, specifying that an adoption agency intending
to cease its operations shall notify the Department of Public
Welfare at least 30 days prior to its closure date, or sooner if
possible, and submit a plan to the department, subject to the
department’s approval, for the closure and transfer of case
records to another agency. The agency shall label its case
Enactments
Stephen F. Rehrer is Counsel with the Joint State
Government Commission in Harrisburg and the Legislative
Editor of the Pennsylvania Family Lawyer.
54
(continued on Page 55)
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
LEGISLATIVE UPDATE
(continued from Page 54)
records to identify each court (1) that finalized an adoption,
(2) where a petition to terminate parental rights was filed or
(3) where a petition to adopt was filed. Within 30 days following approval of the plan, the department shall then notify each court regarding the agency that ceased operations
and the new agency to which the case records have been
transferred.
DEATH DURING A DIVORCE PROCEEDING
Senate Bill 53 (Printer’s No. 1663; Prior Printer’s Nos.
38, 190 and 195), which was reported as amended from the
Senate Judiciary Committee and received first consideration
on Feb. 10, 2009, was re-referred to the Senate
Appropriations Committee. On Feb. 1, 2010, the bill was rereported as amended. Among other things, Senate Bill 53
amends sections 2106, 2507, 6111.1 and 6111.2 of the
Probate, Estates and Fiduciaries Code to account for a situation where a party dies during the course of divorce proceedings, no decree of divorce has been entered, and grounds
have been established as provided in section 3323(g) of the
Domestic Relations Code. The bill conforms these four sections with Act 175 of 2004, which added 23 Pa.C.S. section
3323(d.1) and 20 Pa.C.S. section 2203(c). Senate Bill 53 is
based on the recommendations of the Joint State
Government Commission’s Advisory Committee on
Decedents’ Estates Laws.
LIABILITY FOR THE TORTIOUS ACTS OF
CHILDREN
House Bill 1797 (Printer’s No. 2928; Prior Printer’s No.
2333) was reported as amended from the House Judiciary
Committee and received first consideration on Nov. 17,
2009. The bill as amended adds a new section 5503(c) to the
Domestic Relations Code and specifies that any order for
restitution entered against a parent for the tortious act of a
child shall terminate when the child reaches the age of 21.
Newly Introduced Legislation
CUSTODY
during military deployment. Under the bill, if an eligible servicemember has received notice of deployment in support of
a contingency operation, the servicemember may petition the
court for a modification of a custody or visitation order. The
modification may include a temporary assignment of the servicemember’s custody or visitation rights to one or more
legal or biological relatives. The petition must include a proposed custody or visitation schedule with the relatives, and
the schedule may not exceed the time granted to the servicemember prior to the time of filing the petition. The court may
grant the request if it finds that custody or visitation, on
terms deemed appropriate by the court, would be in the best
interest of the child. The order granting the assignment of
custody or visitation rights would terminate immediately
upon the termination of the servicemember’s deployment.
MARRIAGE
Senate Bill 1208 (Printer’s No. 1646), in the Senate
Judiciary Committee, amends section 1503 of the Domestic
Relations Code by repealing the last half of subsection (b):
“Every religious society, religious institution or religious
organization in this Commonwealth may join persons
together in marriage [when at least one of the persons is a
member of the society, institution or organization, according
to the rules and customs of the society, institution or organization].”
SUPPORT OF THE INDIGENT
House Bill 2206 (Printer’s No. 3092), in the House
Insurance Committee, repeals section 4603 of the Domestic
Relations Code (relatives’ liability; procedure), which was
enacted as part of Act 43 of 2005. Under section 4603, a
spouse, child or parent of an indigent person generally has
the responsibility to care for and maintain or financially
assist the indigent person. This obligation does not apply if
(1) the spouse, child or parent does not have sufficient financial ability to support the indigent person or (2) the indigent
parent abandoned the child and “persisted in the abandonment for a period of 10 years during the child’s minority.”
Senate Bill 1195 (Printer’s No. 1642), in the Senate
Judiciary Committee, amends section 4603(a) of the
Domestic Relations Code to add that a child is not liable for
the support of a parent if the child has taken no overt action
to either voluntarily accept responsibility or reasonably lead
a provider to believe that he or she has voluntarily accepted
responsibility for the costs of care of the parent.
Senate Bill 1221 (Printer’s No. 1684), in the Senate
Judiciary Committee, adds a new section 4110 to Title 51 of
the Pennsylvania Consolidated Statutes (Military Affairs)
regarding the assignment of child custody or visitation rights
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
55
Section News:
Jay A. Blechman, Esq.
blechman@steinerblechman.com
William L. Steiner, Esq.
steiner@steinerblechman.com
The Winter Meeting of the PBA Family Law Section
took place Friday, Jan. 15, through Sunday, Jan. 17, 2010, at
the Hotel Hershey.
On Friday, the Section’s Governing Council met at 3:30
p.m. After the Council Meeting, there was a welcome cocktail party for the meeting attendees and guests. For those who
decided to continue the socialization until later into the
evening, a hospitality suite was available.
On Saturday, a plenary session titled “Advanced Legal
Writing & Editing: Beyond Logic to Coherence and
Strength” was presented by Professor Timothy Terrell.
During the break, the Eric Turner Award was presented
by Mark Dischell to Leonard Dubin, who addressed the
attendees.
After the break, another plenary session, “Protecting
Expert and Attorney Communications,” took place, moderated by Joanne Ross Wilder and featuring Judge Jeannine
Turgeon; Ann M. Funge; David Kaplan, CPA, JD; and
Arnold Shienvold, PhD.
After lunch, two workshops were offered. One, titled
“The Ultimate Support Notebook,” was moderated by
Gerald L. Shoemaker Jr. and featured Judge David N.
Wecht, Mark R. Ashton and Margaret Joy. Another workshop, “Death During Divorce: Issues You Haven’t Thought
Of,” was moderated by Julie E. Ganz and featured Judge
Katherine B.L. Platt, Michael E. Fingerman, David S.
Pollock and Cheryl L. Young.
Later in the afternoon, two more workshops were presented. “Contract Issues with Drafting and Enforcing
Agreements” was moderated by Natalie L. Famous and featured Amy P. DeShong, Mary Cushing Doherty and J.
Paul Helvy. Contemporaneously, “Dissecting a Custody
Case from the Psychologists Perspective” was moderated by
David N. Hofstein and featured Steve Cohen, Ph.D, David
Laporte, Marolyn Morford and Eve Orlow.
After the workshops, another reception took place and
for those who decided to continue the socialization until later
into the evening, a hospitality suite was again available.
On Sunday, a Section Business Meeting was conducted
during breakfast by Section Chair Jeffrey M. Williams.
Following breakfast, Case Law and Rule Updates were presented. They were moderated by Christina A. DeMatteo
and presented by Heather A. Trostle, Robert J. Brasko,
Jessica A. Pritchard, Catherine M. McFadden and Gail
C. Calderwood.
Reservations for the 2010 Summer Meeting, which will
be held July 8-11, should be made directly with the Hyatt
Regency Coconut Point Resort and Spa by calling Central
Reservations at 1-888-421-1442 and referring to
Pennsylvania Bar Association Family Law Section Group
Code GPBA. Reserve rooms as soon as possible. The hotel is
located at 5001 Coconut Road, Bonita Springs, Fla., 34134.
Jay A. Blechman is a Partner with the Pittsburgh law firm of
Steiner & Blechman, Section News Co-editor of the
Pennsylvania Family Lawyer, Past Chair of the PBA Family
Law Section and Past President and Treasurer of the
Allegheny County Bar Association. William L. Steiner is a
Partner with the Pittsburgh law firm of Steiner & Blechman,
Section News Co-editor of the Pennsylvania Family Lawyer,
a past member of Council of the PBA Family Law Section
and past Chair of the Allegheny County Bar Association
Family Law Section.
Hyatt Regency Coconut Point Resort and Spa
The Hotel Hershey
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
56
2010 FAMILY LAW SECTION
ANNUAL WINTER MEETING SPONSORS
Williams & Hand, P.C.
43 N. Pine Street
Doylestown, PA 18901
Mr. Dennis Bieler
Pritchard Bieler Gruver & Wilson
590 Bethlehem Pike
PO Box 485
Colmar, PA 18915
Mr. Anthony DeLorenzo
Allstate Investigations Inc
PO Box 7589
Freehold, NJ 07728
Mr. Stuart Drobny
Stumar Investigations
PO Box 1180
Norristown, PA 19404
Wine Tasting Co-Sponsors - $1,500
$500 Bronze Sponsors
$1,000 Silver Sponsors
Mr. David N. Kaplan
Alpern Rosenthal & Company
Heinz 57 Center
339 6th Ave Ste 800
Pittsburgh, PA 15222-2518
Mr. Tim Adams
President
Bucks County Collaborative Law Group
668 Stony Hill Rd
PO Box 47
Yardley, PA 19068
Mr. Daniel B. Caine
President
Family Law Software
831 Beacon St Ste 2900
Newton Centre, MA 02459
Mr. Mark Caltagirone
ParenteBeard LLC
2609 Keifer Blvd
Reading, PA 19602
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Mr. Bruce Brown
Brown Schultz Sheridan & Fritz
210 Grandview Ave
Camp Hill, PA 17011
Mr. Creig K. Jackson
Easy Soft LLC
212 N Center Dr
North Brunswick, NJ 08902
Mr. & Mrs. Mark K. Altschuler
Pension Analysis Consultants
8215 Forest Avenue
PO Box 7107
Elkins Park, PA 19027-0127
Mr. Bryan Altman, COO
The OurFamilyWizard Website
1301 2nd St NE Ste 200
Minneapolis, MN 55413
Mr. Joseph Egler CFA
Value Management Incorporated
758 Durham Rd
Newtown, PA 18940-9676
57
PBA Family Law Section
2010 Winter Meeting Photos
Photography by David Pollock
58
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ERIC DAVID TURNER AWARD SPEECH FOR LEONARD DUBIN
BY MARK B. DISCHELL
It’s my honor to present the Eric Turner Award for 2010.
Eric was an excellent lawyer, good person and friend to
many of us. It’s hard to believe it’s 10 years since he died. I
miss his knowledge and great sense of humor. Nothing was
sacred to Eric except his dedication to family, clients and the
profession. Therefore, the award is given to an attorney or
judge for mentoring, teaching and, in general, excellence in
the field of family law.
The recipient of the award designates a $500 donation to
the organization or charity of his or her choice.
Past honorees are Robert Raphael, William Goldman,
Judge Lawrence Kaplan, Albert Momjian, the late Bonnie
Menaker, Chris Gillotti, Justice Sandra Newman, the late
Fred Cohen, and last year’s choice, Jack Rounick.
This year’s recipient (the 10th) is Leonard Dubin.
I was nervous in presenting the award to Len, because
over the years he has been correcting my grammar, crossexamination, views on family law issues, and even my
choice of shirt and tie. Maybe he has a right to based upon
the following qualifications:
• First in his class at Temple Law School, as well as being
editor of The Law Review.
• Law clerk to Judge Sloan
• 27th attorney at his law firm, Blank Rome. There are
presently over 500 lawyers in that organization. Len not
only headed the family law department, but chaired the
litigation department, as well.
• President of the Pennsylvania Chapter of the American
Academy of Matrimonial Lawyers.
• Chair of the Pennsylvania Bar Association Family Law
Section and president of the PBA. No one else has
chaired the Section and been president of the Bar
Association.
• Member of the Supreme Court Domestic Relations
Procedural Rules Committee, Joint State Government
Advisory Committee, American College of Trial
Lawyers, and CLE Board of the PBA.
Anyone who knows Len is aware of his greatest accomplishment — meeting, marrying and keeping his illustrious
wife, Marlene. Len and Marlene have been a fixture at
Section meetings for over 30 years. Marlene is the one who
is extremely gracious, speaks with you as if you are the only
person in the room, and remembers you and your children for
time immemorial. When I confirmed Len’s great accomplishments, he corrected me only slightly by including his
three children: Michael (a lawyer), Lisa (a civilian) and
David (a lawyer and member of our Section).
Len has mentored many lawyers by means of his firm,
friendship and teaching. Those of us who were practicing in
1980 remember him and many of the other award recipients
teaching us the “new law” in these same hallowed halls of
Hershey. Who then knew about equitable distribution, alimony, pensions or any of the other topics we routinely deal with
now? For the past 30 years, Len has been teaching us very
many family law topics and has been in the forefront of new
developments.
Even before Len allegedly retired, he was a formidable
adversary and hardly “a day at the beach.” He knew the law
and more often than not, politely and sometimes quite vigorously questioned your theory and reasoning. He was a hard
sell, but would respect legal logic and practicality. His practice was one of courtesy and probity.
If litigation was necessary, Len was relentless and committed to the task. He was also a devastating cross-examiner.
Even now, when asked about the decision of Simeone, he still
gets rankled and condemns the Supreme Court for its decision.
Len’s charity is Philadelphia Futures. This is quite
appropriate as that organization mentors the education of
underprivileged children.
Let’s hope he doesn’t correct me, but Len Dubin is
indeed a worthy recipient of the Eric Turner Award.
Mark B. Dischell is a Shareholder in the Lansdale firm of
Dischell, Bartle, Yanoff & Dooley, P.C., past Chair of the PBA
Family Law Section, past Member of PBA House of Delegates,
member Montgomery County Bar Association, Family Law
Section, Fellow American Academy of Matrimonial Lawyers,
Fellow and past President of its Pa. Chapter, member Joint
State Government Commission Advisory Committee, member
Supreme Court of Pennsylvania, Domestic Relations
Procedural Rules Committee.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
59
Sidebar:
Gerald L. Shoemaker, Esq.
gls@hangley.com
Mark J. Goldberg has retired from the Pittsburgh firm
of Goldberg, Gruener, Gentile, Horoho & Avalli P.C. and
has now established a divorce mediation and arbitration firm
(412-999-4201; divorceadr@gmail.com). Mark’s venerable
firm continues with the new name of Gentile Horoho &
Avalli P.C.
Emma Bennington Korinski has blessed her parents,
Elizabeth (“Lisa”) Bennington (Partner in Pollock Begg
Komar Glasser LLC in Pittsburgh) and Brad Korinski
(Law Clerk to Allegheny County Civil Division Judge Chris
Ward). Emma, who was born on Jan. 12, and her parents are
doing well.
Also, Mark Momjian and Stephen Anderer have
formed the Philadelphia firm of Momjian Anderer L.L.C.,
www.momjiananderer.com. Lauren Sorrentino will be joining Stephen and Mark at the new place! Congrats to everyone!
Welcome to the newly elected judges of Montgomery
County who will serve in Family Court: Carolyn Tornetta
Carluccio, Patricia Coonahan and Kelly C. Wall.
Welcome to the newly elected judges of Westmoreland
County who serve in the Family Court: Chris Scherer (formerly the Sheriff) and and Michele Bononi (formerly
Support Hearing Officer). Hope Aston has become the
Westmoreland County Support Hearing Officer. And, welcome to the newly elected judges of Allegheny County who
will serve in the Family Division: Susan Evashavik
DiLucente, Phil Ignelzi, Arnie Klein and Don Walko.
Stewart Barmen has returned from retirement and has
joined Pittsburgh’s Frank, Bails, Murcko, Gubinsky &
Gale P.C. as Of Counsel. He was formerly a Shareholder and
Chair of the Family Law Department at Buchanan Ingersoll
P.C. prior to his retirement.
Heidi Sherman is now with the Pittsburgh firm of Steiner
and Blechman, whose principals are both Co-Editors of the
Pa Family Lawyer Section News.
Melissa LaFata Pagliari recently joined The Family
Law Group L.L.C. in Erie.
Mazel Tov to Charlie Meyer of Blue Bell’s Elliott
Greenleaf. Charlie recently celebrated his son Brian’s Bar
Mitzvah. His step-daughter Mel Vizak’s Bat Mitzvah is
scheduled in April.
Brian Salsbury has joined Family Matters in
Uniontown. He joins Sheryl Heid who is pleased to welcome him.
Congratulations to Mary Cushing Doherty of
Norristown’s High Swartz on being named a 2009 Woman
of Distinction by the Philadelphia Business Journal.
Phyllis Bookspan has joined Wayne’s Bennett &
Associates as Of Counsel to the firm.
Congratulations to James H. Richardson Jr. of Erie’s
Elderkin, Martin, Kelly & Messina on being installed as a
Potentate for the Zem Zem Shriners.
Our condolences go to Superior Court Judge Jacqueline
Shogan on the recent passing of her husband, Dr. Jeffrey
Shogan.
Pitttsburgh’s Jeffrey Gabriel recently passed away after
an extended illness and a valiant fight. He will be missed by
so many of his friends in Pittsburgh and his many lifelong
and more recent friends on the “South Side.” Our condolences go to his family.
Carol and Barry McCarthy’s son Jack McCarthy
died suddenly. This incomprehensible loss is mourned all
throughout the state. Our hearts are extended to Carol and
Barry, who are heartbroken.
Gerald Shoemaker is Sidebar Editor of the Pennsylvania
Family Lawyer, and an Associate in the Norristown office of
Hangley Aronchick Segal & Pudlin, a past member of the
Councils of the PBA and ACBA Family Law Sections and
active in the Montgomery County Bar Association Family
Law Section.
60
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
Hey, gang!
You have kids, christenings, bar/bat mitzvahs ... and your significant others ... and your law
practices. Let me know what is going on!!! The “Sidebar” may be at the end of the
Pennsylvania Family Lawyer, but many read it first.
So let me know what is going on by mail, fax or e-mail: Gerald L. Shoemaker, Esq.,
2 West Lafayette Street, Suite 275, Norristown, PA 19401.
Telephone: (610) 313-1674/Fax:(610) 313-1689/E-mail: gls@hangley.com
PBA FAMILY LAW SECTION MEMBERSHIP INCENTIVE PROGRAM
BY DANIEL J. CLIFFORD, ESQ.
In July 2008, then-Section Chair Carol Behers appointed a Subcommittee consisting of Section Secretary Christine
Gale, Treasurer Dan Clifford and Council Member Sandra
Davis to review the possibility of creating a scholarship program to assist qualified Section Members by defraying some
of the costs of attending Section Conferences.
At the January 2009 Council Meeting in Pittsburgh,
Council voted in favor of establishing a Membership
Incentive Program that designates the sum of $2,000 annualDaniel J. Clifford is a partner in the Philadelphia law firm of
Weber Gallagher Simpson Stapleton Fires & Newby and
managing partner of the firm’s Norristown office; Secretary
of PBA Family Law Section; Zone 9 Delegate to PBA House
of Delegates; Past Chair of Montgomery Bar Association
Family Law Section; past Board of Directors of Montgomery
Bar Association; Co-Chair of its Diversity Committee; member of Montgomery County Board of Commissioners’
Advisory Committee to the Montgomery County Office of
Children & Youth; Chairman, Zoning Hearing Board,
Springfield Township, Montgomery County; and member,
Board of Directors, Adoptions From The Heart.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
ly for scholarships.
The scholarships will cover the payment of registration
fees for attendance at one of the annual Conferences.
Eligible recipients are Section Members who are:
(a)
young/new to the practice;
(b)
from solo practice or small firm; and/or
(c)
from counties that have been under-represented at Section Conferences.
The Resolution passed Council unanimously and the
first set of scholarships were available for the Winter 2010
meeting in Hershey.
Interested applicants should forward their CV and a
brief statement as to why they believe they are eligible for
the scholarship to the attention of Michael Shatto, PBA, P. O.
Box 186, Harrisburg, PA 17108-0186.
For the July Annual Summer Meeting in Bonita Springs,
Fla., the Membership Incentive Program will be administered by Chair-Elect Cheryl Young and First Vice Chair
Joseph Martone who will make a recommendation to Chair
Jeff Williams for Executive Committee approval.
Applications should be submitted no later than June 15,
2010.
61
“Legal Eagle” Column Compilation Now Available
A long time ago in a galaxy far, far away, there was born
one of the clearest legal minds to grace the world of matrimonial law in Pennsylvania. Patricia G. Miller was not
always a lawyer. She actually graduated from the University
of Colorado with a degree in chemistry and was a medical
technologist. She was a longtime abortion rights activist in
Colorado and Pennsylvania, where she was on the forefront
of the passage of America’s first liberal abortion law in 1967.
While raising three children she graduated from the
University of Pittsburgh School of Law, remade herself as a
civil rights lawyer, then a partner with the prominent matrimonial firm of Wilder & Miller until she established the matrimonial law group at Reed Smith L.L.P. She left the world
of advocacy to become the first Equitable Distribution
Master in the Court of Common Pleas of the Allegheny
County Family Division having been appointed by Justice
Max Baer (then Administrative Judge). She has served as the
Equitable Distribution Master and a Complex Support
Hearing Officer for nearly 15 years, winning accolades from
the Pennsylvania Supreme and Superior Courts, the
Allegheny County Common Pleas Court Judges and the Bar.
More significantly, she was a co-author of the first edition of
Pennsylvania’s Family Law: Practice and Procedure
Handbook, the author of The Worst of Times, published in
1993 by Harper Collins, an oral history of the impact of illegal abortions (which she wrote while taking a sabbatical at
Reed Smith), a monthly column for the Pittsburgh PostGazette titled “Legal Eagle,” numerous Pennsylvania Bar
Association, Pennsylvania Bar Institute and Pennsylvania
Family Lawyer articles and comments and a decade and a
half of equitable distribution and support decisions. Master
Miller is not afraid to speak her mind in Court and outside of
Court. She has strong convictions and wise thoughts, many
of which were incorporated into her monthly “Legal Eagle”
column. Joel H. Fishman, Ph.D., Allegheny County Law
Librarian and Professor at Duquesne University School of
Law was inspired one night to preserve this wonderful collection. He wanted distribution because these articles are not
only important to us as lawyers, but to our clients and the
general public. This book is great reading and something that
all of us will be giving to our clients to consider. There are
words of wisdom for each one of them — and us, too. Enjoy
the reading, as I did each month.
— David S. Pollock
PATRICIA G. MILLER’S ARTICLES FROM THE “LEGAL EAGLE”
COLUMN FROM THE PITTSBURGH POST-GAZETTE (1993-2001)
Compiled and edited by Joel Fishman, Ph.D., with a Forward by David S. Pollock, Esq., Pollock
Begg Komar Glasser LLC, Pittsburgh, PLRI, 2008. xvii, 176p. ISBN: 978-1881751-17-7
$25 per paperback volume; $35 per bound volume (cash or check only)
Name ________________________ Firm __________________________________________
Address ______________________________________________________________________
City ________________________________ State ____________ ZIP code ______________
Phone Number ________________________________________________________________
■ Paperback
■ Hardcover
No. of Copies ______________________________________
For more information, e-mail joelfishman1@yahoo.com
62
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
These BENEFITS are INCLUDED
in your PBA Family Law Section membership:
• FREE Pennsylvania Family Lawyer newsletter —
Still mailed in hard copy to all Section members AND available online anytime for
reference
• FREE online FAMILY LAW SECTION Member Directory —
see screen shot below
Search fellow Section members by name, county or zip code
Visit the PBA Web site at www.pabar.org and log in as a member in the
upper-right corner. Then click on “Sections” along the left side and navigate
to the Family Law Section, then click on “Membership.”
You must log-in as a PBA member in order to access these benefits
exclusive to Section members.
PENNSYLVANIA FAMILY LAWYER
MARCH 2010
63
PENNSYLVANIA BAR ASSOCIATION
Pennsylvania Family Lawyer
P.O. Box 186
HARRISBURG, PA. 17108-0186
NON-PROFIT ORG.
U.S. POSTAGE
PAID
HARRISBURG, PA
PERMIT NO. 472
Mark Your Calendar!
UPCOMING PBA FAMILY LAW SECTION MEETINGS
2010 SUMMER MEETING ● JULY 8-11, 2010
Hyatt Regency Coconut Point, Bonita Springs, Florida
2011 WINTER MEETING ● JAN. 13 – 15, 2011
Marriott Lancaster at Penn Square, Lancaster
2011 SUMMER MEETING ● JULY 7-10, 2011
The Sagamore, Bolton Landing, New York