FAMILY LAW

Somerset Legal Journal headnotes from approximately 1991 through the present. 

For earlier cases, please visit the Somerset County Law Library.

 

ABUSE – CHILD PROTECTIVE SERVICES LAW (23 Pa.C.S. § 6301, et seq.)

 

The relevant portion of the CPSL dealing with confidentiality of reports is section 6339, which provides the following:  Except as otherwise provided in this subchapter, reports made pursuant to this chapter, including but not limited to, reports summaries of child abuse and written reports made pursuant to section 6313(b) and (c) (relating to reporting procedure) as well as any other information obtained, reports, written or photographs or x-rays taken concerning alleged instances of child abuse in the possession of the department or a county agency shall be confidential.  23 Pa. C.S.A § 6339.  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.)

 

The general rule of confidentiality is modified, however, by section 6340, which provides for a release of information and confidential reports to a host of individuals involved in the child abuse case as either an involved official or as a party "subject of the report".  23 Pa. C.S.A. § 6640.  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.) 

 

Accordingly, a fair reading of section (b) and (c) together would indicate that the Defendant in this matter is entitled to receive a copy of all information contained in the Statewide Central Register (SCR) or in all reports filed pursuant to section 6313.  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.) 

 

Construing the prior CPSL, 11 Pa. C.S.A. § 2201, et seq., (now repealed and reenacted as 23 Pa. C.S.A. § 6301, et seq.) the court in Commonwealth v. Michael Kennedy, 604 A.2d 1036 (Pa. Super. 1992) broadly construed the predecessor to section 6340 to require that the agency supply its entire file, exclusive of the identity of the person responsible for filing the report.  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.) 

 

Based on its analysis of section 6340 of the CPSL, the court noted the distinct difference in the exception to the general rule of confidentiality in release to individuals under sections 6340(a) and 6340(b).  Section 6340(a) provides a broad grant of release of information to the 15 specified officials; however, the information permitted to be given under section 6340(b) to a "subject of the report" only refers to a copy of all information contained in the SCR or in any report filed pursuant to section 6313 (relating to reporting procedure).  Dauphin County Social Services for Children and Youth v Department of Public Welfare, 855 A.2d 159 (Pa. Commw. 2004).  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.) 

 

Section 6340(a) enumerates types of persons who may receive information that is confidential under the general rule of section 6339.  The "subject of a report" is not included in that enumeration.  Dauphin County Social Services for Children and Youth v Department of Public Welfare, 855 A.2d 159 (Pa. Commw. 2004).  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.) 

 

Accordingly, based on the analysis conducted by the Commonwealth Court in the Dauphin County Social Services case above, we find that the agency is only required to supply the "subject of the report" with the CY-47, the CY-48, and the Report of Suspected Child Abuse to Law Enforcement Officials form.  These forms may be redacted to exclude the identity of the reporting individual.  Clites v. Clites, 62 Som. L.J. 448 (2006) (Klementik, J.)

 

ADOPTION – GENERALLY

 

For Petitioner to succeed in revoking an adoption because of fraud, he must show, by clear and convincing evidence, that he was fraudulently induced to adopt.  McDaniels v. McDaniels & McWilliams, 50 Som.L.J. 111

 

The failure to report marital difficulties that had been resolved prior to the filing of petitions for adoption is neither active nor constructive fraud upon the court.  McDaniels v. McDaniels & McWilliams, 50 Som.L.J. 111

 

There does exist a duty to report to a court deciding an adoption petition any serious marital problems and, an adoption decree may only be revoked for fraud if such action is in the best interests of the child.  McDaniels v. McDaniels & McWilliams, 50 Som.L.J. 111 

 

ADOPTION – TERMINATION OF PARENTAL RIGHTS

 

Proceedings for involuntary termination of parental rights are governed by Section 2511 of the Adoption Act, 23 Pa.C.S.A. 2511.  In Re: B.K.P., 52 Som.L.J. 1

 

Failure to perform parental duties for a period in excess of six months does not in and of itself, support an order terminating parental rights; rather the trial court must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parent’s rights.  In. Re: B.K.P., 52 Som.L.J. 1 

 

In Pennsylvania, the court first determines the statutory requirements for termination in Section 2511(a)(1) have been satisfied.  If they have, the court assesses any explanation of extenuating circumstances made by the parent.  Next, the court evaluates any post-abandonment contact between the parent and child, and lastly and most importantly the court assesses the effect of termination on the needs and welfare of the child; the analysis is a progressive process, by which the court reaches the next succeeding steps, only if analysis under the preceding step has indicated that termination is warranted.  In Re: B.K.P., 52 Som.L.J. 1 

 

The burden of proof is a heavy one; to justify termination, the petitioning party must present evidence that is clear and convincing.  In Re: B.K.P., 52 Som.L.J. 1

 

The fact that a parent is advised by counsel to avoid contact is not sufficient justification for failure to visit a child.  In Re: B.K.P., 52 Som.L.J. 1

 

A parent does not preserve parental rights by waiting for some more suitable financial circumstances or convenient time for the performance of parental duties and responsibilities.  In Re: B.K.P., 52 Som.L.J. 1

 

CHILD SUPPORT – CALCULATION OF INCOME

 

In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors such as the parties assets, as warrant special attention.  23 Pa.C.S.A. 4322.  Sample v. King, 52 Som.L.J. 347 

 

In evaluating a spouses support obligation, the factors to consider are the spouses income, potential earning power and the nature and extent of his or her property and financial resources.  Sample v. King, 52 Som.L.J. 347 

 

While expectancy interests are generally not considered as assets available to offset a support obligation shares of an estate actually received or in the process of being distributed are so treated.  Sample v. King, 52 Som.L.J. 347 

 

The general rule is that a parent’s ability to pay child support is to be determined as of the time when the support payments are sought.  Sample v. King, 52 Som.L.J. 347 

 

Where the defendants support obligations extend to multiple family units, Pa.R.C.P. 1910.16-5(n) requires the court to calculate the appropriate guideline support amount for each family unit based on the net incomes of the parents in each unit, and then to reduce the support obligations for each unit proportionally if the aggregate exceeds one-half of defendants income. Dividing the available resources into equal shares for each child is not permitted under the Rule.  Botteicher v. Alwine, 52 Som.L.J. 343

 

Under Pa.R.C.P. 1910.16-5(n), where the defendants support obligations extend to multiple family units, the initial guideline support computation for each of the family units is to be determined independently, based on the net incomes of each, without reduction for other support obligations. Adjustment, if any, is to occur after the basic guideline amounts are determined.  Botteicher v. Alwine, 52 Som.L.J. 343

 

Any unusual obligations or expenses must be considered when attempting to determine the appropriate amount of support. Pa.R.C.P. 1910.16-4.  Botteicher v. Alwine, 52 Som.L.J. 343

 

A voluntary election to increase the amount of income tax withheld in order to avoid a shortfall in the amount of federal income taxes withheld is analogous to a voluntary reduction in income and cannot be used to reduce a child support obligation.  Richard v. Richard, 54 Som.L.J. 96

 

In order to justify a deviation from the support obligation guidelines, the Court is required to find that the application of the guidelines would amount in an award that is unjust or inappropriate.  Pa.R.C.P. 1910.16-1(b).  Richard v. Richard, 54 Som.L.J. 96

 

Income for support services includes compensation for services, including, but not limited to, wages, salaries, bonuses, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workers' compensation; unemployment compensation; other entitlements to money or lump sum award, without regard to source, including lottery winnings; income tax refunds; insurance compensation or settlements; awards or verdicts; and any form of payment due to and collectible by an individual regardless of source.  23 Pa.C.S.A. § 4302.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

The amount of support to be awarded is based in large part upon the parties' monthly net income.  Pa.R.C.P. 1910.16-2.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

Monthly gross income is ordinarily based upon at least a six-month average of all of a party's income as defined by 23 Pa.C.S.A. § 4302 (a).  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

The trial court has discretion to determine the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the party's support obligation. 23 Pa.C.S.A. § 4302 (a).         Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

Income tax refunds are not included as income to the extent they were already factored into the party's actual tax obligation for purposes of arriving at his or her net income. 23 Pa.C.S.A. § 4302 (a).  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

The court shall deduct only the following items from monthly gross income to arrive at net income: federal, state and local income taxes; F.I.C.A. payments and non-voluntary retirement payments; union dues; and alimony paid to the other party. 23 Pa.C.S.A. §4302 (c).  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

    A parent may not "voluntarily decrease" the ability to provide support by sheltering income through "unreasonable or unnecessarily large expenditures for his or her own benefit.             Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

Deductions allowed under the federal tax laws, that do not represent actual reductions in a support obligor's personal income, will not be allowed in the disposable income calculation.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

         Deductions and losses on corporate records or personal income tax returns are irrelevant to calculating available income for child support purposes unless such deductions and losses cause an actual reduction in available cash.                 Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

     Owner of closely-held corporation cannot avoid a support obligation by sheltering income that should be available for support by manipulating salary, perquisites, corporate expenditures, and/or corporate distribution amounts while funds not actually available to or received by the party will not be attributed to owner.   Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

Individuals with support obligations who control the retention and disbursement of funds by the corporation bear the burden of proving such actions were necessary to maintain or preserve the business.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

Retained earnings are a corporation's accumulated profits, namely the net amount of the corporation's yearly profits and losses.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

      Pass through income refers to an S corporation's ability to allocate income of the corporation to the stockholders based upon the proportion of stock held in the corporation for the purpose of eliminating double taxation of that income.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

      When payor of support obligation owns his own business, the court shall consider "cash flow" and not "federally taxed income."      Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

The purposes for the Internal Revenue Code is concerned with calculating taxable income; child support law of Pennsylvania is concerned with reaching the amount of income of both parents in order to determine the amount each parent can pay for the support of their child.  Pa.R.C.P. 1910.16-1.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

   Taxable income is not the same as net income used to determine support obligations.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

         Where all or part of a support obligor's income domes from ownership and/or operation of a business the choice of an accounting method may significantly impact the income calculation.  Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

       In determining income for support purposes, a court cannot merely rely upon ax returns and use taxable income as the equivalent of income for support purposes; a court must consider "cash flow" rather than "federally taxed income."          Lavanier v. Beeghly, 60 Som.L.J. 354 (2002) (Gibson, J.). 

 

   Although Plaintiff filed an exception that simply stated "Robert Working," this court has a duty to properly assess the actual and potential income of both parties in reaching a decision on support.  Bambling v. Ankeny, 61 Som.L.J. 135 (2003) (Cascio, J.) 

 

  Master properly considered Defendant's investment, royalty and rental income and an imputed minimum wage earning capacity for Plaintiff to determine Defendant's child support obligation.  Bambling v. Ankeny, 61 Som.L.J. 135 (2003) (Cascio, J.) 

 

     Defendant's earning capacity should have been considered when determining child support payment obligation.  Bambling v. Ankeny, 61 Som.L.J. 135 (2003) (Cascio, J.) 

 

    When the obligor historically is employed at two jobs, the Hearing Officer properly considered the total actual income from both jobs, even if more than 40 hours per week, when calculating the appropriate amount of support.  Mort v. Mort, 61 Som.L.J. 234 (2003) (Fike, P.J.) 

 

       The total income a parent derives, whether from one or more sources, should be considered in determining the available net monthly income for support calculation purposes.  Mort v. Mort, 61 Som.L.J. 234 (2003) (Fike, P.J.) 

 

        Statutory provisions, as well as the support guidelines, require all income to be included.  See 23 Pa.C.S.A. 4302; Pa.R.C.P. No. 1910.16-2.  Mort v. Mort, 61 Som.L.J. 234 (2003) (Fike, P.J.) 

 

       Income for support purposes includes other entitlements to money or lump sum awards, without regard to source.  Strong v. Stapleton, 60 Som.L.J. 66 (2000) (Gibson, J.). 

 

      Pa.R.C.P.1910.16-2(a)(8) sets forth that income in support actions includes gains derived from dealings in property and entitlements to money without regard to source.                             Strong v. Stapleton, 60 Som.L.J. 66 (2000) (Gibson, J.). 

 

     Trial courts have discretion to determine the appropriate method of imputing lump sum awards as income for purposes of establishing or modifying the party's support obligation.         Strong v. Stapleton, 60 Som.L.J. 66 (2000) (Gibson, J.). 

 

    The ultimate purpose of a child support order is to provide for the best interests and welfare of the child.  However, the support order may not be punitive or confiscatory.  Strong v. Stapleton, 60 Som.L.J. 66 (2000) (Gibson, J.). 

 

       In determining the appropriate period of time over which to allocate a lump sum award, the court must consider all of the circumstances of the case.                  Strong v. Stapleton, 60 Som.L.J. 66 (2000) (Gibson, J.).  

 

Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity.  Murray v. McKenzie, 55 Som. L.J. 19 (October 23, 1996) (Cascio, J.) 

 

  Aside from providing for basic needs, one of the principal aims of social welfare is to provide the means to effect a return to self-sufficiency.  A requirement that support obligors demand unemployment compensation in every case, despite the availability of a job, and the desire and ability to return to the work force, would be bad policy.                              Benton v. Benton, 58 Som.L.J. 267 (1999) (P.J. Fike). 

 

   Rule 1910.16-4 (c) (1) offers relief to a support obligor with whom the children spent 40% or more of their time during the year.  In this circumstance, the rule establishes a rebuttable presumption that the obligor is entitled to a reduction in the basic support obligation to reflect this additional time.  Addair v. Beggs, 58 Som.L.J. 1 (2001) (J. Cascio). 

 

   Rule 1910.16-4 (c) (2) addresses a situation where the children spend equal time with both parents.  In that situation, the support obligation is to be adjusted so that the combined income of both parents is allocated equally between the two households.  Addair v. Beggs, 58 Som.L.J. 1 (2001) (J. Cascio). 

 

Where the Hearing Officer heard witnesses and evaluated the evidence we cannot attribute error to the Hearing Officer's conclusions without a transcript of the hearing.  Hegadus v. Fulton, 61 Som.L.J. 265 (2004) (Fike, II, P.J.). 

 

     The plaintiff's receipt of payment from the sale of a tract of land received from the equitable distribution proceedings in the parties' divorce action cannot be considered as income to the plaintiff.  Gary v. Judy, 61 Som.L.J. 267 (2004) (Fike, II, P.J.). 

 

Inasmuch as equitable distribution involves distribution of assets to both parties in accordance with equitable principals, and to achieve economic justice between the parties; the parties not having presented, or argued, the details or comparative values of the parties' shares or the equitable distribution; and having concluded, in any event, that support litigation is not to be viewed as a means of reviewing the equitable distribution scheme, we find insufficient evidence to warrant a deviation from the guidelines.  Gary v. Judy, 61 Som.L.J. 267 (2004) (Fike, II, P.J.). 

 

Proceeds or royalty from the sale of timber should be considered as gain from the capital real estate asset, and should be included as income.    Gary v. Judy, 61 Som.L.J. 267 (2004) (Fike, II, P.J.). 

 

CHILD SUPPORT – CONFLICT OF LAWS

 

Where obligor to a support action was present in Pennsylvania during the period for which support is sought, the law of Pennsylvania as the responding forum is applicable.  Thomas v. Thomas, 51 Som.L.J. 314

 

The court will look to the law in effect at the time of the initial URESA proceedings to determine the effect of a reduction order entered by the court at the initial proceeding.  Thomas v. Thomas, 51 Som.L.J. 314

 

Where the statutory language clearly states that the responding state’s order shall not supersede any other order, the reduction order had no effect on the existing support order and thus, arrearages continued to accumulate under the original order.  Thomas v. Thomas, 51 Som.L.J. 314

 

Under our present version of RURESA, the support obligor remains liable under the initiating states support obligation, unless the responding states modification order otherwise specifically provides that the modification is to nullify or supersede the foreign order.  Thomas v. Thomas, 51 Som.L.J. 314

 

A court, however, should not remit arrearages where the effect would be to render the foreign support order superseded in direct contradiction to the antinullification provisions of RURESA.  Thomas v. Thomas, 51 Som.L.J. 314

 

Under the Uniform Interstate Family Support Act, which repealed the Revised Uniform Reciprocal Enforcement of Support Act, in a proceeding to establish, enforce or modify a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individuals guardian or conservator if any of the following apply:  (1) The individual is personally served with a writ of summons, complaint or other appropriate pleading within this State. (2) The individual submits to the jurisdiction of this State by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.  (3) The individual resided with the child in this State.  (4) The individual resided in this State and provided prenatal expenses or support for the child. (5) The child resides in this State as a result of the acts or directives of the individual. (6) The individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse. (7) The individual acknowledged parentage of the child on a form filed with the department under 5103 (relating to acknowledgment and claim of paternity).  (8) There is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.  23 Pa.C.S.A. '7201.  Beam v. Reed, 54 Som.L.J. 31

 

A tribunal of this State exercising personal jurisdiction over a nonresident obligor under 7201 shall apply the procedural and substantive law of this State, including the rules on choice of law, as opposed to applying the law of the state in which the obligor resides.  Beam v. Reed, 54 Som.L.J. 31

 

Under Pennsylvania’s choice of law rules, the challenge to the exercise of personal jurisdiction is based upon the necessity of a defendant's maintenance of minimum contact with a forum state before a court of that state may subject that defendant to its jurisdiction.  There must be a sufficient connection between the defendant and the forum state as to make it fair to require defense of all the action in the forum; an essential criterion in all cases is whether the quality and nature of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in the forum state.   Beam v. Reed, 54 Som.L.J. 31

 

Section 7205 provides that the state issuing the order has continuing, exclusive jurisdiction over that order, so long as (1) that state remains the state of residence of the obligor, the obligee, or the child for whose benefit the support order is issued or (2) until each party consents, in writing, to the assumption of jurisdiction by another state.  Beam v. Reed, 54 Som.L.J. 31 

 

CHILD SUPPORT – DUTY TO PAY

 

Where child earnestly intends to complete high school education upon reaching the age of eighteen, defendant’s support obligation shall continue.  Mishler v. Mishler, 50 Som.L.J. 66

 

Discussion of support for college-age child:  when estrangement defense is asserted; estrangement must be weighed in the equitable balance; when estrangement affects a parent’s duty to pay; pre-majority attitudes and behavior of child is excluded from consideration; ability of parent to contribute to educational expenses without undue hardship; treatment of potential cash flow from depreciation considered; basic needs of minority children take precedence over parent’s obligation to contribute to educational expenses.  Richter v. Richter, 50 Som 145

 

Under 23 Pa. Cons. Stat. § 4321(2), parents are “liable for the support of their children who are unemancipated and 18 years of age or younger.”  Case law holds that parents are generally under a duty of support until the child turns eighteen or graduates from high school, whichever occurs later.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

Moreover, when a child reaches the age of majority, a presumption arises that the duty to support the child ends, and the burden shifts to the child to rebut the presumption, i.e., to demonstrate a need for support.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

When the child has reached eighteen and/or graduated high school, and the presumption arises that the parent is no longer under a duty of support, the child may rebut that presumption by showing that the child suffers from some mental or physical condition which prevents self-support or emancipation, thereby establishing that the parental obligation continues.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

Outside of the type of circumstances discussed above, a parent has no duty to provide college educational support because no such legal duty has been imposed by the General Assembly or developed by the Pennsylvania Supreme Court’s case law.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

Thus, a parent has no duty in Pennsylvania to provide support to a college-age child who has graduated high school and who suffers from no infirmities which would prevent that child from earning income to help support himself.  Accordingly, if CYS seeks to recoup from Defendant funds CYS has spent on the dependent child, the Support Law does not appear to be the vehicle, unless the child can demonstrate some mental or physical disability which would make the child unemployable. Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

However, the right of government to seek reimbursement for services provided differs substantially from the child’s individual right to receive support from a parent.  In the former situation we choose not to engage in ascertaining whether the child has attained majority and whether he can overcome the presumption that he is no longer entitled to support.  In the latter situation, we must engage in that analysis.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

Where the issue is the government’s right to receive reimbursement for services provided to a dependent child, the relevant inquiry is not whether the child possesses a right to receive support from a parent, but whether a parent is statutorily obligated to reimburse the government; therefore, § 704.1(e) of the Public Welfare Code controls the outcome.  The question becomes whether a parent is obligated under § 704.1(e) to reimburse the government.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

It is now well settled that the Children and Youth Services is permitted, pursuant to § 704.1(e), to seek reimbursement for placement costs.  Moreover, in determining the amount of support, it is appropriate for the trial court to consult the support guidelines, and if the amount of support awarded deviates from the guidelines, the trial court must specify in writing the reasons for the deviation.  Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

The dependent child is entitled to services and, because he is receiving services, CYS is necessarily spending money on those services. CYS’s right to reimbursement from the parent arises from the statutory law discussed above (i.e., 62 Pa. Cons. Stat. § 704.1(e)) which makes it independent of the child’s right to support. CYS therefore has a right to seek reimbursement. Somerset County Children and Youth Services v. H.B.R., 66 Som.L.J. 88 (2016) (Cascio, J.)

 

CHILD SUPPORT - EXCEPTIONS

 

Any party may file exceptions to the hearing officer's report or any part thereof, to rulings on objections to evidence, to statements or findings of facts, to conclusions of law, or to any other matters occurring during the hearing.  Pa.R.Civ.P. 1910.12(f). Betker v. Deem, 63 Som.L.J. 306 (2007)(Geary, J.)

 

In order to properly file exceptions in Somerset County, the excepting party must not only submit the specific exceptions in writing, but also pay a filing fee of $30.00 and a transcript fee of $25.00.  Somerset Rule of Civil Procedure 1910.12(I)(1)-(2).  Betker v. Deem, 63 Som.L.J. 306 (2007)(Geary, J.)

 

There are only two instances in which the transcript fee may be excused: (i) if a Motion To Proceed In Forma Pauperis is presented to, and approved by, the Court or (ii) a certification is filed certifying that the record is not necessary for disposition of the exceptions.  Somerset Rule of Civil Procedure 1910.12(I)(4). Betker v. Deem, 63 Som.L.J. 306 (2007)(Geary, J.)

 

We can conceive of only one situation in which the transcript would be unnecessary in ruling on exceptions: when all of the essential facts are stipulated to or are otherwise undisputed, and the excepting party presents a pure question of law for our consideration. Betker v. Deem, 63 Som.L.J. 306 (2007)(Geary, J.)

 

CHILD SUPPORT – INCARCERATION OF OBLIGOR

 

Incarceration of a support obligor does not by itself establish a material and substantial change in circumstances; rather, incarceration is but one of several factors to be considered by a court.  Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.). 

 

When reviewing a request for modification of a support order where the support obligor is incarcerated, the focus of the court should be upon the issue of the support obligor's ability to pay support during his incarceration.                Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.).

 

Additionally, a court should focus on the reason for the support obligor's imprisonment.  Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.). 

 

CHILD SUPPORT – MEDICAL EXPENSES

 

Where the amount spent on medical insurance coverage only negligibly affects the guideline calculation, the amount awarded will not be disturbed.  Rullo v. Rullo, 51 Som.L.J. 188

 

Where a marriage settlement agreement is silent on the issue of payment of unreimbursed medical expenses, any action by this Court in ordering the parties to share the burden of unreimbursed medical expenses does not affect or impact any of the provisions of the existing marriage settlement agreement.  Rullo v. Rullo, 51 Som.L.J. 188

 

The obligation to provide medical insurance coverage for dependent children is set forth in 23 Pa.C.S.A. §4326  Sleppy v. Hay, 58 Som.L.J. 19 (2000). (J. Cascio).

 

If insurance coverage is available to defendant at essentially no cost through his employer, plaintiff is not required to reimburse defendant for any portion of the cost, and defendant is not entitled to any credit toward his support obligation.         Sleppy v. Hay, 58 Som.L.J. 19 (2000). (J. Cascio).

 

A party will not ordinarily be relieved of a support obligation by voluntarily quitting work.  Sleppy v. Hay, 58 Som.L.J. 19 (2000). (J. Cascio).

 

Although the term "support obligation" is not defined in the Rules, it is clear that the term includes health insurance premiums.  Sleppy v. Hay, 58 Som.L.J. 19 (2000). (J. Cascio). 

 

CHILD SUPPORT – MODIFICATION

 

In an action for support, the domestic relations findings will not be altered where Defendant has not shown the custody situation to be so unusual as to require consideration.  Rullo v. Rullo, 51 Som.L.J. 188 

 

A support order will be retroactive to the date of the filing of the Demand by Plaintiff, not to the date that the case was remanded to domestic relations.  Rullo v. Rullo, 51 Som.L.J. 188

 

The right to request modification is not absolute.  Under both the common law and the subsequent statutory law, modification of an existing support order may occur only when the relevant circumstances which existed at the time the order was entered had materially and substantially changed.  Murray v. McKenzie, 55 Som.L.J. 19 (October 23, 1996) (Cascio, J.)

 

There is no inconsistency between the theories of modification and res judicata.  Since the principles of res judicata are applicable to support orders as of the date of adjudication, they do not embrace subsequent events which may justify modification or termination of the adjudication, unless and until an order of modification or termination is made, which is then a new judgment, itself res judicata.  Murray v. McKenzie, 55 Som.L.J. 19 (October 23, 1996) (Cascio, J.) 

 

To modify a support order based upon reduced income, a petitioner must first establish that the voluntary change in employment which resulted in a reduction of income was not made for the purpose of avoiding a child support obligation and secondly, that a reduction in support is warranted based on petitioners efforts to mitigate any income loss.  In effect, petitioner must present evidence as to why he or she voluntarily left the prior employment and also as to why the acceptance of a lower paying job will be considered to have an income equal.  Otherwise, for calculation of a support obligation, the petitioner will be considered to have an income equal to his or her earning capacity as defined in the support order.  Murray v. McKenzie, 55 Som. L.J. 19 (October 23, 1996) (Cascio, J.) 

 

Matter pertaining to child support are always subject to court supervision.         Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

The language of § 3105 (b) does not contain any specific, or implied, restriction upon the authority of a court to modify a provision of an agreement regarding child support except that there must be a showing of changed circumstances.            Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

Pursuant to 23 Pa.C.S.A. § 3105 (b), a court has the authority to modify any aspect of a child support provision contained in an agreement between the parties upon a showing of changed circumstances.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

In order to justify a modification under §3105 (b), the Court concludes that the changed circumstances asserted as the basis for the modification should either:  1.    Be significant to an extent that the requesting party is affected in a material manner, thereby creating an inequitable situation which can best be resolved by Court intervention in the nature of a judicial modification; and additionally, the modification will not adversely affect the best interest of the child or children to a degree which outweighs the inequitable impact upon the party; or 2.      Affect the best interest of the child or children to a degree which justifies intervention by the Court.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

        Although the language of §3105 (b) permits a judicial modification based upon changed circumstances which primarily affect the parties rather than the child or children, it appears that the required severity of the adverse effect should be significantly higher where the adverse effect is on a party, rather than upon the best interest of the child or children.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

Section 3105 (b) is primarily intended to permit a court to intervene where changed circumstances cause a provision of an agreement to adversely impact the best interests of the child or children; and in many cases, the parties could have reasonably anticipated the changed circumstances and, therefore could have addressed the situation in the agreement.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

Modification of an existing support award can only be granted if a material and substantial change in circumstances has occurred since the entry of the original support order.  Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.). 

 

The Petitioner has the burden of proving such change in circumstances.          Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.). 

 

Under Leasure v. Leasure, 378 Pa. Super. 613, 618, 549 A.2d 225, 228 (1988), and Kelley v. Kelley, 444 Pa. Super. 286, 288, 663 A.2d 785, 786 (1995),  a court which is reviewing a request for modification from an incarcerated support obligor should examine the following factors: (1) Defendant's income; (2) Defendant's assets; (3) reason for Defendant's incarceration with particular regard to whether the incarceration is directly related to the support obligation, and/or whether Defendant's criminal actions were carried out in order to avoid the support obligation; and (4) other relevant factors which may arise on a case by case basis.     Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.). 

 

     Another factor to consider when reviewing a request for modification of a support order is the length of the support obligor's incarceration.               Wiland v. Wiland, 59 Som.L.J. 364 (2002) (Gibson, J.).  

 

When the total of obligor's basic support obligations exceeds fifty percent of his or her monthly net income, the court may consider a proportional reduction of these obligations. Since, however, the goal of the guidelines is to treat each child equitably, in no event should either a first or later family receive preference. Nor shall the court divide the guideline amount for all of obligor's children among the households in which those children live.  Valiton v. Jarvis, 60 Som.L.J. 57 (2001) (Fike, P.J.).

 

In a multiple family situation, if the defendant is the subject of multiple child support obligations, and a child support complaint or a child support modification petition is filed in any one of the cases, the Domestic Relations Section will schedule a review of all cases in which the defendant is the child support obligor, if a proportionate reduction is indicated and if a review in all of the cases is requested by the defendant.                                Valiton v. Jarvis, 60 Som.L.J. 57 (2001) (Fike, P.J.). 

 

When a child support complaint or a child support modification petition is filed the Domestic Relations section will first schedule a conference in the case in which the complaint or modification petition has been filed. At the initial conference the conference officer will compute the defendant's support obligation and effect a proportionate reduction, if warranted, based on the actual amounts of the active orders. If the defendant agrees to the amount of support so calculated, no further review will be required. However, if the defendant does not agree with the amount of the order so calculated , and if the defendant requests a review of all cases to determine and effect proportionate reduction, the conference officer will then schedule reviews in all of the defendant's active cases.  Valiton v. Jarvis, 60 Som.L.J. 57 (2001) (Fike, P.J.). 

 

If an obligee in a child support complaint or a child support modification petition persists in agreeing to an order at less than the guideline recommended amount, the conference officer will use the agreed upon amount in computing the proportionate reduction.  Valiton v. Jarvis, 60 Som.L.J. 57 (2001) (Fike, P.J.).

 

A conference officer will be required to wait until reviews are completed in all of the cases before entering an order in any one case. However, if based on existing active orders a proportionate reduction is not suggested, or if, in any event, the defendant does not request reviews in other active cases, the conference officer will proceed with a recommended order in the case at issue.  Valiton v. Jarvis, 60 Som.L.J. 57 (2001) (Fike, P.J.).                                                    

 

CHILD SUPPORT – REDUCTION OF INOME

 

Pa.R.C.P. 1910.16-2 (d) (1) sets forth the support obligation requirements of a party who voluntarily assumes a lower paying job.     Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson)’

 

Pa.R.C.P. 1910-16-2 (d) (1) is applicable to a voluntary reduction of income whether or not a prior support order has been issued.      Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson).

 

Pa.R.C.P. 1910.16-2 (d) (1) applies to the establishment and modification of support obligations.  Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson). 

 

The necessary inquiry is whether the defendant's change of employment was a deliberate attempt to reduce income for purposes of anticipated support proceedings.                                Miller v. Miller, 58 Som.L.J. 24 (2000) (J. Gibson). 

 

When a party voluntarily assumes a lower paying job, there generally will be no recomputation of the support payment.  A party ordinarily will not be relieved of a support obligation by voluntarily quitting work or being fired for misconduct.  Pa. R.C.P. 1910.16-5(c)(1).  Murray v. McKenzie, 55 Som. L.J. 19 (October 23, 1996) (Cascio, J.) 

 

CHILD SUPPORT – RES JUDICATA

 

There is no inconsistency between the theories of modification and res judicata.  Since the principles of res judicata are applicable to support orders as of the date of adjudication, they do not embrace subsequent events which may justify modification or termination of the adjudication, unless and until an order of modification or termination is made, which is then a new judgment, itself res judicata.  Murray v. McKenzie, 55 Som.L.J. 19 (October 23, 1996) (Cascio, J.)

 

The principles of res judicata are applicable to support orders.  A support order once made, in both the criminal and civil courts, and not appealed, is res judicata of the rights and obligations of the parties.  It is conclusive not only as to the judgment or decree itself, but also as to every fact directly or necessarily adjudicated or which was necessarily involved or was material to the adjudication.  Consequently, the order is res judicata of the support rights and the amount payable, and of all defenses which might have been raised in the proceedings in which the order was made.  Murray v. McKenzie, 55 Som. L.J. 19 (October 23, 1996) (Cascio, J.) 

 

COHABITATION AGREEMENTS

 

CUSTODY & VISITATION – CUSTODY GENERALLY

 

In child custody cases, the rights of the parents must be deemed subordinate to the childs physical, intellectual, emotional, moral and spiritual well-being.  Volchko v. Volchko, 50 Som. 120 

 

A child’s need for an established parental figure, a known physical environment, and continued residence with one parent are important factors in determining custody issues.  Volchko v. Volchko, 50 Som. 120 

 

The strong policy of the law is that, unless compelling reasons indicate otherwise, siblings should be raised together.  Volchko v. Volchko, 50 Som. 120 

 

Under the Uniform Child Custody Jurisdiction Act (UCCJA), the home county is the preferred jurisdiction.  Holt v. Holt, 50 Som. 191 

 

Although Mother and Father might at one point agree on a forum to hear their custody disputes, such an agreement should not govern forever, especially where both parties and the child have moved away from the agreed upon forum for a significant period of time and where essentially all significant contact with the original forum has ceased; in such a case, the interest of the child and the purposes stated by the prefatory provisions of the UCCJA must override the parties agreement.  Holt v. Holt, 50 Som. 191 

 

It is well established that the best interests and welfare of the child are the paramount considerations in all child custody cases; all other considerations, including the rights of the parents, must be deemed subordinate to the childs physical, intellectual, emotional, moral, and spiritual well-being.  Gramann v. Cole, 51 Som. 213 

 

The best interests standard is an indefinite one, an we must avoid mechanical determinations by analyzing the particular facts and circumstances of each case.  Gramann v. Cole, 51 Som. 213 

 

The child’s need for an established parental figure, a known physical environment, and continued residence with one parent are important factors in determining custody issues.  Gramann v. Cole, 51 Som. 213 

 

A child’s preference, although not controlling, is a factor to be considered so long as it is based upon good reasons; in assessing the weight to be accorded the child’s preference, the child’s maturity and intelligence are to be considered with increased weight being accorded the preference as the child grows older; where no reason, or a very inadequate reason for the preference is given for the child’s choice, we have given no weight thereto.  Gramann v. Cole, 51 Som.L.J. 213 

 

It is an established axiom that the best interests of the child govern custody and visitation determinations; factors to be considered in determining the child’s best interests include the child’s physical, intellectual, emotional and spiritual well-being.  Peterman v. Wellington, 52 Som.L.J. 62

 

Generally, resort to litigation of custody disputes is not the most satisfactory method for resolution of custody issues.  Szewcyk v. Szewczyk, 53 Som.L.J. 5 

 

When judicial help is requested to resolve a custody dispute, the hope, of course, is that after decision, the parties will try diligently to live with the courts order and work together to facilitate the child’s adjustment.  Szewcyk v. Szewczyk, 53 Som.L.J. 5 

 

In a custody dispute, the court is concerned with the children’s best interests, not with parental rights.  A correlative of this principle is that even if some aspects of the parties behavior do not comport with what most would consider model parenting, the courts job is not to punish the parent, but to try to establish the custodial arrangement which will best serve the children, despite the parents conduct.  Szewcyk v. Szewczyk, 53 Som.L.J. 5 

 

In a custody dispute, the court must decide, based on the evidence, the custodial arrangement which will provide the strongest and most stable base for the childrens development.  In some cases, the evidence will indicate that, to accomplish that objective, custody should be awarded to a parent who has exhibited less than exemplary behavior.  Such a placement might be indicated if the evidence shows that the proposed non-custodial parent will be better able to provide the consistent love, compassion, concern, encouragement and support, even if primary custody is awarded to the other parent.  Szewcyk v. Szewczyk, 53 Som.L.J. 5 

 

Except in exceptional circumstances, siblings should remain together.  Szewcyk v. Szewczyk, 53 Som.L.J. 5 

 

It is desirable for a child to be able to return and live in the marital residence with his or her siblings, but only if conflict between the parents can be avoided.  Usnik v. Usnik, 53 Som.L.J. 83 (1994). 

 

Although it is desirable for siblings to live together, the desirability of attaining that objective was outweighed in this case by the constant friction and tension which necessarily would have resulted if both parents had been granted permission to live in the marital home.  Usnik v. Usnik, 53 Som.L.J. 83 (1994). 

 

Although children may have been born in Somerset County and their father has lived in Somerset County for a short period of time, Somerset County is not the home county pursuant to the Uniform Child Custody Jurisdiction Act, 23 Pa. C.S.A. 5348(c) if the children presently live, and intend to permanently remain, with one parent in another county.  Landy v. Landy, 54 Som.L.J. 197 (Aug. 18, 1995) (Fike, P.J.) 

 

Venue is not proper in Somerset County pursuant to Pa. R.C.P. 1915.2 when Somerset County has never been the children=s home county, the children are not present in Somerset County, a forum in Somerset County is not in the best interests of the children, the parents do not have a significant connection with Somerset County, and substantial evidence concerning the children=s present or future care, protection, training and personal relationships is not available in Somerset County.  Landy v. Landy, 54 Som.L.J. 197 (Aug. 18, 1995) (Fike, P.J.) 

 

When the parties and the children have not lived in, and have had no connection with Somerset County for over three years, it is proper to transfer the custody aspect of the case to the county where the father and children reside.  Walker v. Walker, 54 Som.L.J. 204 (Sep. 11, 1995) (Fike, P.J.) 

 

The county which is the home county of the children, that has a closer connection with the children and custodial parent, and that has readily available evidence concerning the present or future care, protection, training and personal relationships of the children should exercise venue/jurisdiction over the custody action.  The exercise of venue/jurisdiction by any other county would contravene the purposes of the Uniform Child Custody Jurisdiction Act.  Walker v. Walker, 54 Som.L.J. 204 (Sep. 11, 1995) (Fike, P.J.) 

 

Generally, a third party can raise child custody issues only through a dependency proceeding and not by a custody complaint.  McKelvey v. Henry, 54 Som. L.J. 223 (Jan. 18, 1996) (Fike, P.J.) 

 

A third party who stands in loco parentis with respect to a child can raise child custody issues by a custody complaint.  McKelvey v. Henry, 54 Som. L.J. 223 (Jan. 18, 1996) (Fike, P.J.) 

 

A third party stands in loco parentis when he or she assumes the obligations incident to the parental relationship without going through formal adoption procedures.  McKelvey v. Henry, 54 Som. L.J. 223 (Jan. 18, 1996) (Fike, P.J.) 

 

The rights and obligations arising out of the in loco parentis relationship are the same as between parent and child.  McKelvey v. Henry, 54 Som. L.J. 223 (Jan. 18, 1996) (Fike, P.J.) 

 

Even though paternal grandparents had partial custody of their grandchild and the child spent a significant period of time with the grandparents with the mother=s permission, the grandparents did not assume the role of parent and did not discharge parental duties to the exclusion of the mother, and do not have standing to pursue a custody claim regarding their grandson where mother retained primary custody, has been a caretaker of the child throughout the child=s life, and grandparents were not the sole decision makers in rearing the child.  McKelvey v. Henry, 54 Som. L.J. 223 (Jan. 18, 1996) (Fike, P.J.)

 

In order to decide whether a custodial parent and children shall be permitted to relocate at a geographical distance from a non-custodial parent, a trial court must consider the following factors: 1) the prospective advantages of the move; 2) the integrity of the motives of both parents in either seeking the move or seeking to prevent it; 3) the availability of realistic, substitute visitation arrangements.  Hechler v. Hechler, 58 Som.L.J. 97 (2000) (J. Gibson). 

 

The ultimate inquiry remains what is in the best interests of the child.  Hechler v. Hechler, 58 Som.L.J. 97 (2000) (J. Gibson). 

 

A court need not consider only economic benefits when determining whether relocation substantially improves the quality of life of the parent.  Hechler v. Hechler, 58 Som.L.J. 97 (2000) (J. Gibson). 

 

When the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside.  Hechler v. Hechler, 58 Som.L.J. 97 (2000) (J. Gibson). 

 

A Gruber analysis is necessary when a parent with shared custody seeks to relocate.  Hechler v. Hechler, 58 Som.L.J. 97 (2000) (J. Gibson). 

 

Where significant financial benefit to the relocating parent is demonstrated, there is no need to demonstrate a separate non-economic benefit to the child or children.  Hechler v. Hechler, 58 Som.L.J. 97 (2000) (J. Gibson). 

 

In Pennsylvania, there are three basic types of custody disputes: parent versus parent; parent(s) versus state; and parent(s) versus third party.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

Physical custody is physical possession and control of the child.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The person who has physical custody is the person with whom the child actually resides. JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

It is common for one party to be granted physical custody and the other party to be granted partial physical custody.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Physical custody can also be shared between parties.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Legal custody is the right ot make major decisions affecting the child.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Some of the major decisions are elective medical treatment, religious training, and education.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Ordinary day-to-day decisions in the child's life are made by the party having physical custody.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

In most cases, parents share legal custody of the child unless the court determines that one parent is severely deficient in his or her ability to make major decisions concerning the child.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

In reaching a determination of custody, the court should conduct a thorough child-centered analysis.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The paramount consideration in custody determinations is the best interest of the child.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

In order to ascertain the child's best interest, the court must consider all factors which legitimately impact upon the child's physical, intellectual, moral, and spiritual well-being on a case-by-case basis.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Factors which legitimately impact upon the child's well-being can include the following:  child's preference; custody arrangements of siblings; location of the parents; who is the primary caregiver; parent's past conduct; parent's new relationships; stability; religion; parents' work schedules; sex and age of child; parties' finances; who is the accommodating parent; and abusive conduct.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Which factors will be most determinative of the child's best interest vary on a case-by-case basis as the court conducts its child-centered analysis.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

A child custody order is temporary in nature and is subject to modification.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Child custody orders have significant, important and immediate impact upon the welfare of children.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Modifications of custody are permitted whenever it is in the child's best interest.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Substantial change is not required in order for a court to order a modification of custody.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The Pennsylvania Superior Court announced three factors for trial judges to use when considering a custody issue which involves one parent relocating.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The factors outlined in Gruber, if deemed relevant and likely to affect the child's physical, intellectual, moral and spiritual well-being, should also be applied and considered in any custody case involving the relocation of either the custodial or non-custodial parent.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The three factors enumerated in Gruber are as follows: (1) The potential advantage of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children, and whether the proposed move is the result of a momentary whim on the part of the custodial parent; (2) the integrity of the motive of both the custodial and non-custodial parent in either seeking to prevent it; and (3) the availability of realistic, substitute arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Parents begin custody actions on even footing.  JDN v. MRN, 60 Som.L.J. 171 (2001)  (Gibson, J.). 

 

The parents' relative abilities and situations are to be judged as of the time of the hearing and not an earlier time.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The importance of a child's preference as to which parent he or she wishes to live with depends upon the age of the child.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

As the child becomes older and more mature, his or her preference becomes a more important factor in custody decisions.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

A child's preference is not a controlling factor in a court's custody determination, but the child's expressed preference can be an important factor which must be considered carefully in a court's determination of the child's best interest.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The Pennsylvania Supreme Court has determined that the preference expressed by the child must be based on good reasons, and the child's maturity and intelligence must be considered.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

If there are good reasons for the preference and the child is intelligent and mature, then the child's expressed preference becomes an important factor to be considered in determining the child's best interest.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Absent compelling reasons to the contrary, siblings should be raised together.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Keeping siblings together is only one custody factor; siblings can be separated if necessary for the children's best interest.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The parents' past conduct is not important in a custody determination unless such conduct will have a harmful current or future effect on the children.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The parents' new relationships are also a factor to be considered in a custody determination.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Stability is a factor which impacts significantly upon a child's best itnerest.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Stability is a valid factor to consider in a custody determination.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Stability involves the nature of the parent-child relationship as well as the degree of maturity of a parent's lifestyle.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

Which parent has been the primary caregiver is a factor to be used in custody determinations.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The primary caregiver is the person who meets a child's day-to-day physical and emotional needs and provides supervision.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

The primary caregiver factor increases in importance when the child is young.  JDN v. MRN, 60 Som.L.J. 171 (2001) (Gibson, J.). 

 

In determining primary custody of a child the court will: (1) assess the potential advantages and likelihood that the move will substantially improve the quality of life for the custodial parent and the children and that it is not the result of a momentary whim on the part of the custodial parent; (2) establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and (3) consider the availability of realistic, substitute visitation arrangements, which will adequately foster an ongoing relationship between the child and the non-custodial parent.  Where there is an existing shared custody arrangement the court need not focus on the primary physical custody family and assume that what is advantageous to the primary unit is in the child's best interest.  Newcomer, Jaime L. v. Glessner, Bryan R., 61 Som.L.J. 57 (2002) (Fike, II, P.J.) 

 

Where there are two primary family units, both must be scrutinized similarly in the examination of competing custodial environments.   Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

In shared custody cases it is necessary for the court to analyze the non-economic benefits of the proposed move to determine if the children's lives will be substantially improved as a result of the move.  Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

After all of the appropriate considerations have been made the court must then ultimately determine what is in the best interest of the child.  Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

The proposed custodial parent carries the burden of showing that the move to primary custody is likely to improve significantly the quality of life for that parent and the children.  Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

Each parent has the burden of establishing the integrity of their motives in either desiring to move or seeking to prevent the move. Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

The court must be convinced by the custodial parent that the move is not sought for whimsical or vindictive reasons.  Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

The non-custodial parent must show that the resistance to the move stems from concern for the children and his or her relationship with them.  Newcomer, Jaime L. v. Glessner, Bryan R., Som.L.J. 57 (2002)(Fike, II, P.J.) 

 

Pursuant to the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S.A. § 5341 et seq. and specifically § 5344 thereof the Court has jurisdiction to make a custody determination if, inter alia, this Commonwealth had been the home state of the child within six months before commencement of the proceeding and the child is absent from the Commonwealth because of his removal by a person claiming custody, and a parent continues to live in this Commonwealth.  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

A Commonwealth Court is not to exercise jurisdiction if, at the time of filing the petition, a custody proceeding was pending in a court of another state exercising jurisdiction substantially in conformity with the Act, unless, however, the proceedings in the other state are stayed because the Commonwealth is a more appropriate forum or for other reasons.  23 Pa.C.S.A. § 5347(a).  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

Pursuant to 23 Pa.C.S.A. § 5347(c), if it is determined that a custody proceeding is pending in another state, this Court is to communicate with the other state's court "to the end that the issue may be litigated in the more appropriate forum...".  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

23 Pa.C.S.A. § 5348(d) provides that the Court is to communicate with the court in which the extraterritorial proceedings are pending, before determining whether to decline or retain jurisdiction; the communication is to be effected for the purpose of "assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties."  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

The Court will take into account the fact that the defendant absconded with the child without permission or knowledge of plaintiff, and engaged in conduct intending to benefit his position in a custody hearing, which the Act does not condone.  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

While the home state may be preferred it is not the exclusive basis for jurisdiction.  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

Jurisdiction was properly asserted by the Pennsylvania court where Pennsylvania was the home state of the child, the contesting parent had taken the child without permission to California, the contacts with Pennsylvania appear to be as significant as contacts with California, and the California court agrees that jurisdiction should be assumed by the Pennsylvania court.  Jensen, Mandy Marie v. Reinholtz, Casey Jordan, 61 Som.L.J. 363 (2004)(Fike, II, P.J.) 

 

CUSTODY & VISITATION – IN LOCO PARENTIS

 

The exception to this third-party-lack-of-standing-preclusion is proof that such a party stands in loco parentis, that is, where he or she has assumed obligations incident to the parental relationship.             Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

The rights and obligations arising out of that in loco parentis relationship are exactly the same as between parent and child.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

The phrase "in loco parentis" refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of legal adoption.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

The status of "in loco parentis" embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.             Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

In order to have standing in this custody action, Plaintiff must be either a parent or a third party who "stands in loco parentis" to the child.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

CUSTODY & VISITATION – INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

 

The process for involuntary termination of parental rights is a bifurcated one.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

The party seeking to involuntarily terminate parental rights must prove by clear and convincing evidence the statutory elements of termination.            In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

Parties seeking to terminate rights under §2511(a)(1) must prove by clear and convincing evidence that there was 1) a six month period of estrangement; and 2) either a settled purpose or intent to relinquish a parental claim or a failure to perform parental duties.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

However, one's failure to perform parental obligations does not automatically forfeit parental rights.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

Rather the court must examine the individual circumstances and any explanations offered by the parent to determine if, in light of the totality of the circumstances, the evidence clearly warrants the involuntary termination of parental rights.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

It is not enough to contribute to the support of a child as required by court order.  A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise "reasonable firmness" in resisting obstacles placed in the path of maintaining the parent-child relationship.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

When proceeding to the analysis of § 2511(b), the matter must be analyzed according to the needs and welfare of the child and not the best interests of the child as the two concepts are not interchangeable.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

Before granting a petition to terminate parental rights, it is imperative that at trial court carefully consider the intangible dimension of the needs and welfare of a child—the love, comfort, security, and closeness—entailed in a parent–child relationship, as well as the tangible dimension.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

Continuity of relationships is also important to the child, for whom severance of close parental ties is usually extremely painful.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

The trial court, in considering what situation would best serve the children's needs and welfare, must examine the status of the natural parent bond to consider whether terminating the natural parents' rights would destroy something in existence that is necessary and beneficial.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

Finally, the trial court in evaluating the evidence can believe all, part or none of the evidence and makes credibility determinations and resolves conflicts in evidence.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.). 

 

CUSTODY & VISITATION – STANDING

 

In order to have standing in this custody action, Plaintiff must be either a parent or a third party who "stands in loco parentis" to the child.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.).

 

To permit a putative father to utilize the custody action itself as the legal proceeding within which to litigate the issue of paternity would be inappropriate and unwise judicial policy.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

Persons other than parents are deemed to be "third parties" for purposes of custody disputes.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

Absent a prima facie right to custody, however, a third party lacks standing to even seek custody as against the natural parents.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

The exception to this third-party-lack-of-standing-preclusion is proof that such a party stands in loco parentis, that is, where he or she has assumed obligations incident to the parental relationship.             Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.).

 

Standing is a jurisdictional prerequisite to every action, and may be raised by either party or by the court sua sponte. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

Parents enjoy automatic standing in custody disputes while third parties face a more stringent standard.  “[C]ourts generally find standing in third-party…cases only where the legislature specifically authorizes the cause of action…”  The lone exception to this rule is when a third party gains standing under the common law doctrine of in loco parentis. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

To have standing under 23 Pa.C.S.A. §5312 a person must show that he or she is the great-grandparent or grandparent of a child whose parents are divorced, involved in dissolution proceedings or have been separated for six months or more. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

In custody disputes, biological parents enjoy automatic standing, while third parties, i.e., anyone other than biological or natural parents, face a more stringent standard. Holland v. Hollada, 65 Som.L.J. 185 (2012) (Klementik, J.).

 

Section 5325 of the Custody and Grandparent Visitation Act states that grandparents and great-grandparents may file an action for partial physical custody in the following situations: (1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under [§ 5325]; (2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or (3) when the child has for a period of at least 12 consecutive months resided with the grandparent or great-grandparent. Holland v. Hollada, 65 Som.L.J. 185 (2012) (Klementik, J.).

 

Where third parties seek partial visitation following the death of a parent, the third party must meet the statutory requirements: (1) he/she is the biological grandparent or great-grandparent and (2) the biological parent is deceased.  Additionally, the trial court is required to perform a detailed, child-centered analysis, while the burden is on the grandparent(s) to demonstrate that an award of partial custody would be in the best interests of the child. Holland v. Hollada, 65 Som.L.J. 185 (2012) (Klementik, J.).

 

For purposes of establishing whether a third party is a child’s biological grandparent, a “parent’s parent” constitutes a “grandparent.” Holland v. Hollada, 65 Som.L.J. 185 (2012) (Klementik, J.).

 

Where an unmarried, putatitive father dies prior to the birth of the child, is deprived of the critical “paternity decision,” i.e., acknowledging or denying paternity, and the putative father’s parents are seeking visitation with the child, the putative father’s parents are may bring about a paternity determination to establish of the standing requirements of the Custody and Grandparent Visitation Act, 23 Pa.C.S.A. § 5325, are met. Holland v. Hollada, 65 Som.L.J. 185 (2012) (Klementik, J.).

 

Where a child’s paternity is relevant to the custody determination and is in dispute, under 23 Pa.C.S.A. § 5104, the court of common pleas has subject matter jurisdiction to order blood testing of the mother, child and alleged father. Holland v. Hollada, 65 Som.L.J. 185 (2012) (Klementik, J.).

 

CUSTODY & VISITATION – VISITATION GENERALLY

 

Pennsylvania law favors visitation with the non-custodial parent; a parent will not be denied the right to see his or her child unless the parent manifests severe mental or moral deficiency which constitutes a real and grave threat to the child’s welfare.  Peterman v. Wellington, 52 Som. 62 

 

Severe deficiencies must be shown by clear and convincing evidence before visitation with a non-custodial parent can be denied.  Peterman v. Wellington, 52 Som. 62 

 

In appropriate circumstances, visitation with an incarcerated parent may properly be denied if the interest of the child so dictates.  Peterman v. Wellington, 52 Som. 62 

 

A general claim of the impropriety of prison visitation without any evidence of a specific adverse effect on the child’s physical, intellectual, emotional and spiritual well-being is not enough to deny visitation to the non-custodial parent.  Peterman v. Wellington, 52 Som. 62


DIVORCE – AFFIDAVITS

 

An affidavit is a "voluntary declaration of facts written down and sworn to the by the declarant before an officer authorized to administer oaths."  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005).

 

Section 201 (d) (1) treats the "affidavit" as a document separate and distinct from the "complaint," and not merely as the usual verification affidavit to the complaint is clear from several provisions of the Code and Rules of Civil Procedure, ... .  The purpose of the foregoing special pleading system, existing solely for Section 201 (d)(1) purposes, is to provide a means of establishing with finality the nondenial of the three year separation which is the essential element of a Section 201 (d)(1)(I) cause for divorce, without impinging upon the general proscription against the default judgements on pleadings in divorce actions on other grounds and without requiring a hearing before court or master in other cases.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

Thus both the Divorce Code and the Pennsylvania Rules of Civil Procedure emphasize the importance and necessity of the filing of an affidavit.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

"The affidavit is one of consent and not one that the marriage is irretrievably broken."  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

DIVORCE – ALIMONY

 

No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of sanguinity.  23 Pa. C.S.A. § 3706.  Ream v. Ream, 54 Som. L.J. 207 (Sep. 5, 1997) (Cascio, J.)

 

Section 3796 applies only to alimony paid as a result of a court ordered award, and does not apply to alimony paid as a result of an agreement between the parties.    Ream v. Ream, 54 Som. L.J. 207 (Sep. 5, 1997) (Cascio, J.) 

 

DIVORCE – ALIMONY PENDENT LITE

 

The goal of alimony pendente lite is to prevent a dependent spouse from relinquishing valuable property rights in exchange for a quick settlement.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995).

 

Alimony pendente lite is payable throughout resolution of collateral economic issues, but is subject to termination if the dependent spouse engages in obstructionist tactics or deliberately delays the proceedings solely to prolong payment.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

Alimony pendente lite should continue so long as need can be demonstrated.  Moore v. Moore, 54 Som. L.J. 94 (Jan. 8, 1997) (Cascio, J.) and Moore v. Moore, 54 Som. L.J. 229 (Aug. 21, 1997) (Cascio, J.) 

 

If an appeal is pending on the equitable distribution of the marital assets, alimony pendente lite will continue throughout the appeal process and any remand until a final order is entered.  Moore v. Moore, 54 Som. L.J. 94 (Jan. 8, 1997) (Cascio, J.) and             Moore v. Moore, 54 Som. L.J. 229 (Aug. 21, 1997) (Cascio, J.)

 

Should circumstances should change to the point that the plaintiff can no longer demonstrate the need for alimony pendente lite, the defendant may be entitled to relief, even though the appeal may be pending.  Moore v. Moore, 54 Som. L.J. 94 (Jan. 8, 1997) (Cascio, J.)

 

An appeal from an order of alimony pendente lite shall operate as a supersedeas only upon application to and order of the trial court and the filing of security as required by subdivision (a).  The amount and terms of security shall be within the sound discretion of the trial court.  Pa.R.A.P. 1731(b).  Moore v. Moore, 54 Som. L.J. 94 (Jan. 8, 1997) (Cascio, J.) 

 

Alimony pendente lite means alimony or maintenance "pending litigation" and is payable during the pendency of a divorce proceeding so as to enable a dependent spouse to proceed with or defend against the action. Moore v. Moore, 54 Som. L.J. 229 (Aug. 21, 1997) (Cascio, J.) 

 

The obligation to pay alimony pendente lite continues following the entry of the bifurcated divorce decree until all economic issues have been resolved.  This obligation continues even after the entry of a final decree in equitable distribution when an appeal remains pending and terminate only after all litigation has ended.  Moore v. Moore, 54 Som. L.J. 229 (Aug. 21, 1997) (Cascio, J.)

 

Spousal support and alimony pendente lite are two distinct concepts, and, therefore, dismissal of a spousal support claim does not bar a claim for alimony pendente lite.  Krepelka v. Krepelka, 54 Som. L.J. 241 (May 31, 1996) (Fike, P.J.) 

 

A spouse may be entitled to receive both alimony pendente lite and attorneys fees in order to maintain or defend divorce proceedings, and, therefore, consideration of a counsel fee claim in equitable distribution proceedings does not automatically bar an award of alimony pendente lite.  Krepelka v. Krepelka, 54 Som. L.J. 241 (May 31, 1996) (Fike, P.J.) 

 

Alimony pendente lite is designed to enable the dependent spouse to maintain or defend the divorce litigation.  APL is dependent upon the status of the litigation rather than the status of the parties.  It is intended to cover only that period during which the litigation is being pressed with diligence.  Sterner v. Sterner, 54 Som. L.J. 362 (February 12, 1998) (Cascio, J.)  Moore v. Moore, 56 Som. 110 

 

The purpose of alimony pendente lite is to provide a party to a divorce action with an income during the pendency of the divorce action in order that the party will not be placed at a disadvantage financially by reason of the commencement of the proceeding.  Alimony pendente lite is awarded to equalize the parties' ability to maintain or defend a divorce action.  Meyer v. Meyer 58 Som.L.J. 60 (1999) (J. Gibson). 

 

A need for alimony pendente lite must be demonstrated by the requesting party.  Meyer v. Meyer 58 Som.L.J. 60 (1999) (J. Gibson).

 

The court considers the ability of the requesting party to maintain or defend the divorce action as well as the other party's ability to pay and the general situations of the parties in making its decision concerning an award of alimony pendente lite.  Meyer v. Meyer 58 Som.L.J. 60 (1999) (J. Gibson). 

 

Alimony pendente lite and spousal support have not merged into one entity.  Case law determines what circumstances the trier of fact must look to in order to determine whether to award alimony pendente lite.  These factors include the general situation of the parties, the needs of the dependent spouse for alimony pendente lite and the ability of the independent spouse to pay alimony pendente lite.  If the dependent spouse establishes that alimony pendente lite should be awarded, then the amount of the alimony pendente lite shall be determined pursuant to Pa.R.C.P. 1910.16-1 in accordance with the support guidelines.  Meyer v. Meyer 58 Som.L.J. 60 (1999) (J. Gibson). 

 

Deviation from the amount of the alimony pendente lite award, determined by use of the support guidelines, is permitted under Pa.C.R.P. 1910.16-5.  Meyer v. Meyer 58 Som.L.J. 60 (1999) (J. Gibson). 

 

The deviation consideration in Pa.R.C.P. 1910.16-5 (b) (9) of "other relevant and appropriate factors" includes the following factors: the extent of the need established by the plaintiff; income tax consequences to each party; and the extent of the defendant's ability to pay.  Meyer v. Meyer 58 Som.L.J. 60 (1999) (J. Gibson). 

 

Typically, credit is considered in terms of reimbursement for alimony pendente lite, which is defined as "temporary support granted to a spouse during the pendency of a divorce or annulment proceeding", 23 Pa.C.S.A. §3101, but not in terms of reimbursement of spousal support, which is defined as "care, maintenance and financial assistance."  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.). 

 

In view of the fact that the Court has jurisdiction to enforce private support agreements, notwithstanding the existence of a separate Domestic Relations Order, the existence of an alimony pendente lite order does not vitiate the parties' private agreement, and does not preclude either party from enforcing the terms of the agreement in an action in assumpsit or equity.  Nightingale v. Nightingale, 61 Som.L.J. 375 (2005) (Fike, II, P.J.) 

 

We find that consideration of the application of a mortgage deviation should occur regardless of whether child support, spousal support or APL  is at issue.  If considering APL, the mortgage deviation, if any, will be a factor in deciding whether APL should be paid, and if so, the amount.  Consequently, if so analyzed, application of a mortgage deviation will not be duplicative of an APL obligation.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.). 

 

We note the apparent trend toward a convergence of the concepts of spousal support and alimony pendente lite.   However, the distinction between the two concepts remains.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.).

 

Nothing in this Rule [Pa. R.C.P. 1910.1] should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.  Explanatory Comment to the 1994 amendments to Pa.R.C.P.1910.1.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.). 

 

As stated in Pa. R.C.P.1910.16(c), orders for spousal support and alimony pendente lite shall not be in effect simultaneously, and Pa.R.C.P.1910.16 (b) directs that "the amount of support (child support, spousal support, or alimony pendente lite) to be awarded pursuant to the procedures under Rules 1910.11 and 1910.121 shall be determined in accordance with the support guidelines..."  Pa.R.C.P.1910.16.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.). 

 

Given the direction and the status of appellate authority, we must remain guided by the proposition that the two concepts retain their separate identities, although determination of both is to be governed, at least initially, by the guidelines.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.).

 

In accordance with the direction that APL and spousal support remain distinct concepts, and recognizing appellate opinion confirming that need is a principal factor in determining whether APL is warranted, we agree with the defendant that payment of APL in the instant case is not indicated.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.). 

 

We note that in Litmans v. Litmans, the Superior Court reviewed principles governing determination of APL, but without reference to the guidelines.  ‘APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare.'  ‘APL focuses on the ability of the individual who recieves the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse.'"   Litmans v. Litmans, 449 Pa. Super. 209, 222-223, 673 A.2d 382, 388 (1996) (citations omitted).  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.).

 

"It is also designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse.  In ruling on a claim for alimony pendente lite, the court should consider the following factors: the ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties." Litmans v. Litmans, 449 Pa. Super. 209, 224, 673 A.2d 382, 389 (1996) (citations omitted)  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.). 

 

We recognize that the support guidelines are to be used in determining the amount of APL.  However, just as when determining support, the guideline recommended amount is merely a presumptive recommendation.  Given the existing state of appellate authority on the subject, we deem evaluation of need to be a factor which compels deviation, or, as in the instant case, a refusal to award any amount of APL.  Zellem v. Zellem, 62 Som.L.J. 139 (2005) (Fike, P.J.).

 

Alimony Pendente Lite (APL) is defined as “[a]n order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.”  23 Pa.C.S.A. §3103.  The purpose of APL is to “level the divorce playing field” by providing the economically dependent spouse with the financial resources necessary to litigate the divorce action on equal footing with the independent spouse, while still allowing the dependent spouse to maintain a standard of living similar to what was enjoyed by the parties prior to separation. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

Need for APL is determined by comparing the requesting spouse’s monthly net income and other financial resources to his/her reasonable living and litigation expenses; A party demonstrates a need for APL when there are insufficient financial resources available to meet his/her reasonable living expenses and still provide him/her with the finances necessary to litigate the divorce action. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

In deciding whether to award APL, we must also consider the ability of the defending spouse to pay APL and “the general situation of the parties”. “Ability to pay” is determined by comparing the defending spouse’s monthly net income and other financial resources to his/her reasonable living and litigation expenses. A defending spouse whose financial resources exceed his/her reasonable living and litigation expenses is deemed to have the ability to pay APL. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

Assuming that the threshold “need” and “ability to pay” requirements have been met, the amount of APL to be awarded is calculated according to the formula set forth in the support guidelines. However, the guideline amount is merely a presumptive recommendation. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

When the guideline amount exceeds the amount of need that has been demonstrated by the requesting spouse, the guideline amount must be adjusted downward to bring it more in line with the need demonstrated by the requesting spouse. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

The purpose of APL is not to equalize the incomes of the parties, but to provide the requesting spouse with the financial resources necessary to litigate the divorce action on equal footing with the other spouse. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

Pa.R.C.P. 1910.16-4(e) prescribes a four-step formula for calculating child support when a custodial parent owes spousal support or APL.  The ultimate objective of the Rule is to offset the child support obligation and spousal support/APL obligation against each other, with the difference being awarded to the party who is owed the greater of the two amounts. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J.).

 

DIVORCE – BIFURCATION OF TRIAL

 

The Divorce Code, the Pennsylvania Rules of Civil Procedure and appellate authority accord no absolute right to decisions on the economic claims prior to entry of divorce decree.  Becker v. Becker, 51 Som. 130

 

One of the objectives of the Divorce Code is to make the law effective for dealing with the realities of the matrimonial experience, to give primary consideration to the welfare of the family rather than the vindication of private rights and to mitigate the harm to spouses caused by dissolution of the marriage; bifurcation allows for termination of the marriage so that the parties' personal lives will not be held hostage to economic demands.  Becker v. Becker, 51 Som. 130 

 

Where objective is to delay the divorce to gain economic advantage, denial of bifurcation would only serve to further this improper purpose and is an inadequate reason for denying a bifurcated decree.  Becker v. Becker, 51 Som. 130 

 

The law allows granting of divorce without first concluding economic issues, but it is not mandatory that the court grant bifurcation.  McHugh v. McHugh, 54 Som. L.J. 338 (July 8, 1996) (Shaulis, S.J.) 

 

The decision to bifurcate should not be made pro forma.  Rather, such determination should be made only after the disadvantages and advantages have been carefully explored and analyzed.  Each case must be reviewed on its own facts and only following the court’s  determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.  McHugh v. McHugh, 54 Som. L.J. 338 (July 8, 1996) (Shaulis, S.J.)

 

It is well settled law in Pennsylvania that a court may sever economic claims from divorce claims.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

Pennsylvania Rule of Civil Procedure 1920(c) provides that the court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.).

 

Bifurcation separates the termination of the marriage from the economic aspects of the divorce.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

The decision of a court concerning whether to grant bifurcation is discretionary, not mandatory or obligatory.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

The court must consider the advantages and disadvantages in determining whether to grant a request for bifurcation.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

The court should remain cognizant that many of the disadvantages of bifurcation may be avoided in advance by the practice of allowing bifurcation only upon the condition that potentially applicable disadvantages first be addressed and resolved by order or agreement.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

In order to grant a request for bifurcation, a court must determine that the consequence of bifurcating the case will be of greater benefit than not bifurcating.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

Compelling reasons to bifurcate are not required, rather the court should render a decision which is fair to both parties.  Ljungman v. Ljungman, 59 Som.L.J. 205 (2001) (Gibson, J.). 

 

The decision to bifurcate, though permissible, should not be made pro forma . . . rather, such a determination should be made only after the disadvantages and advantages have been carefully explored and analyzed; each case must be reviewed on its own facts and only following the court's determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.  Strope v. Strope, 61 Som.L.J. 270 (2004) (Fike, II, P.J.). 

 

The disadvantages to bifurcation will outweigh the advantages where the defendant demonstrates several concrete disadvantages which will accrue if the divorce decree is entered before the collateral economic issues are resolved and the plaintiff's basic purpose for bifurcation is the desire to be free of the bond of marriage.  Strope v. Strope, 61 Som.L.J. 270 (2004) (Fike, II, P.J.). 

 

DIVORCE – THE COMPLAINT

 

Averments in the complaint as to the divorce or annulment are deemed denied unless admitted by an answer.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

Averments in pleadings constitute binding judicial admissions, conclusive in their nature insofar as their effect is confined to the case in which they are filed.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

Amendment of pleadings is permitted under our rules of civil procedure and the rules regarding amendment of pleadings are typically applied liberally.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

It is well settled that amendment to pleadings is a matter of judicial discretion. It is also settled that such amendments should be allowed at any stage of the adversary process to secure a decision of the case on its merits, unless surprise or prejudice to the other party would result or the proposed amendment is against a positive rule of law.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The type of prejudice which must be alleged by the responding party must be significant.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The possible prejudice must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The mere fact that the adverse party has expended time and effort in preparing to try a case against the amending party is not such a prejudice as to justify denying the amending party leave to amend to raise an affirmative defense which had a substantial likelihood of success.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The prejudice inquiry is limited to an evaluation of whether undue prejudice exists.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

Pa. R.C.P. 1033 allows amendments at any time, and specifically permits amendments to conform the pleading to the evidence offered or admitted.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The right to amend should be granted liberally, unless the adverse party is prejudiced. Prejudice must be something more than a detriment to the other party, since any amendment almost certainly will be designed to strengthen the legal position of the amending party.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

When the amendment seeks to raise the bar of the statute of limitations, no substantial rights of the plaintiff are affected by the late filing inasmuch as timely notice could not have altered the plaintiff's position since the statute of limitations ran prior to commencement of the action.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either (I) does not deny the allegations set forth in the affidavit.  (II) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005).

 

DIVORCE – EQUITABLE DISTRIBUTION (MARITAL PROPERTY)

 

Since part of the purchase price for marital real property was advanced by defendant's relatives, that part of the property is considered to be acquired by gift and therefore, is excludable from equitable distribution.  Faher v. Faher, 50 Som. 61

 

Although the findings of fact and the recommendations of the master are usually considered as only advisory, an exception is made where the issue is one of credibility and the master is the one who heard and observed the witnesses. In that situation, the findings of the master should be given the fullest consideration.  Winck v. Winck, 50 Som. 228

 

Where the master obtains an independent appraisal of property, the value of which is disputed by the parties, and defendant is not given an opportunity to cross-examine or present evidence in response, the defense will be granted the option of requesting further hearing on this issue.  Winck v. Winck, 50 Som. 228 

 

It was not improper or negligent maintenance of marital residence when spouse, after separation, permitted children, although young adults, to live in marital residence without monetary or in-kind contribution toward its maintenance.  Winck v. Winck, 50 Som. 228

 

Where it is disputed whether property is acquired before or after separation, the crucial time is when the right to receive the asset actually accrues; not when the asset is actually received.  Winck v. Winck, 50 Som. 228 

 

Where, before separation, defendant leases a trailer with intent to purchase; trailer is subsequently repossessed as stolen property; and, after separation, defendant acquires title to trailer through its purchase, defendant acquired no right to the trailer before separation and thus, it cannot be considered marital property.  Winck v. Winck, 50 Som. 228 

 

Where possession of items of personal property is disputed, but little evidence is produced on the value of these times, they may remain with the party in possession.  Winck v. Winck, 50 Som. 228 

 

Missing items of sentimental value- in this case, a birth certificate, diploma, military discharge, and movies and pictures taken in Korea- need not be assigned a monetary value by the master, nor a particular value charged for them against either party's allocation in distribution.  Winck v. Winck, 50 Som. 228 

 

Where master exerted the effort and time to visit the marital property and verify the existence of certain items now missing, and plaintiff had possession and control of the residence in which the items were located, it is fair to apportion some greater part of the Master's fee and consists to plaintiff.  Winck v. Winck, 50 Som. 228 

 

Defendant is not entitled to receive rental credit for plaintiff's occupation of the marital residence where housing expense for plaintiff was not considered as a factor when establishing support and alimony; plaintiff received no support payments from defendant during her occupation of home despite an existing support order; and master had recommended allocation of the mortgage, taxes and insurance expenses equally between the parties.  There is no abuse in the master's exercise of his discretion in such a finding.  Winck v. Winck, 50 Som. 228 

 

A survivor's benefit plan of a military pension is not marital property because the payments are never divisible and are assigned to only one spouse, similar to a life insurance policy.  Ruha v. Ruha, 51 Som. 98 

 

An armed forces employee elects to name his spouse or dependent child as beneficiary to the plan.  Once a spouse is named, the designation is irrevocable and, if the couple divorces, the employee may elect to retain his former spouse as beneficiary.  10 U.S.C. ' 1448 et seq.  Ruha v. Ruha, 51 Som. 98 

 

The court may require the military employee to designate his former spouse as beneficiary to the survivor's benefit plan and the court may change that name if the employee decides to remarry at a latter date.  10 U.S.C. section 1448(a)(6), 1450(f)(4)  Ruha v. Ruha, 51 Som. 98

 

Any monies paid into a survivor's benefit plan will revert back to the government if a beneficiary is removed.  Ruha v. Ruha, 51 Som. 98 

 

Where one spouse remains in the home before distribution, the party in possession must pay the party out of possession a fair rental value to compensate her for her interests in the land.  Ruha v. Ruha, 51 Som. 98 

 

Improvements and advertising expenses that are undertaken to promote the sale of the parties' home are the equal responsibility of both parties.  Ruha v. Ruha, 51 Som. 98

 

It is within the court's discretion to order the sale of a home, with the proceeds to be shared by the parties as part of the equitable distribution of their property.  23 Pa.C.S.A. ? 3502(e)(4).  Ruha v. Ruha, 51 Som. 98 

 

The 1988 amendment to Divorce Code ?3501 did not change the law with respect to treatment of wage replacement disability benefits, but merely made it clear that if an unliquidated claim or cause of action is otherwise includable as marital property, the critical date is the date of accrual, not date of payment; in other words, the amendment is concerned with establishing the date for determining the status of a claim otherwise includable as marital property, not with the types of claims that are to be included.  Summers v. Summers, 51 Som. 151 

 

Lump sum received as a result of commutation of worker's compensation wage loss benefits was not marital property when applied for and received after final separation even though work related injury occurred when parties were married and living together.  Summers v. Summers, 51 Som. 151 

 

By federal statute, Social Security benefits are not subject to equitable distribution.  Wright v. Wright, 52 Som. 29 

 

A party who attempts to exclude property from equitable distribution has the burden of proving that the property in question falls within one of the exceptions set forth in 23 Pa.C.S.A. ?3501.  Wright v. Wright, 52 Som. 29 

 

The pension coverture factor must be considered when calculating a distributive share of pension funds.  Wright v. Wright, 52 Som. 29 

 

A spouse is entitled to a distributive share during the period of time from the date of separation until the date of distribution.  Wright v. Wright, 52 Som. 29 

 

A spouse will not be entitled to interest on the judgment where a decree of equitable distribution has not yet been entered.  Wright v. Wright, 52 Som. 29 

 

Pa.R.C.P. 1920.53 does set time limits within which the Master must file the record, transcript of testimony, and a report and reccomendation.  Rugg v. Rugg, 52 Som. 297

 

Where a Special Master unreasonably delays in filing a report, the Master may be subject to sanctions in the nature of denying compensation.  Rugg v. Rugg, 52 Som. 297 

 

Absent exceptional circumstances, neither party should be given the option of engaging in the financing of debt, or the benefit of "leverage" which would ensue if interest on marital debt were to be applied as a direct debit or credit.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

Credibility of witnesses is initially for the Master, who can observe their demeanor and attitude.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

The award of fair rental value to the spouse out of possession is normally made subject to credit for that spouse=s share of the insurance, taxes and upkeep paid by the spouse in possession.  Harbaugh v. Harbaugh, 53 Som. 345 

 

A spouse may be entitled to receive both alimony pendente lite and attorneys fees in order to maintain or defend divorce proceedings, and, therefore, consideration of a counsel fee claim in equitable distribution proceedings does not automatically bar an award of alimony pendente lite.  Krepelka v. Krepelka, 54 Som. L.J. 241 (May 31, 1996) (Fike, P.J.)  and Conn v. Conn, 56 Som. 85

 

Marital property means all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any nonmarital property, except: property acquired prior to the marriage or property acquired in exchange for property acquired prior to the marriage and property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

In an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

Assets that are acquired before the marriage are not marital property, and therefore are not subject to equitable distribution under the Divorce Code.  Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385 (2001) (J. Cascio). 

 

The increase in value of stock acquired by a spouse prior to the marriage qualifies as marital property, subject to equitable distribution. The same is true with the increase in value of a business owned by one of the parties, including a corporation in which that party is the sole shareholder.      Kauffman v. Kauffman; Stein & Golden v. Kaufman v. Kaufman. 58 Som.L.J. 385  (2001) (J. Cascio).

 

The general rule is that the dispossessed party is entitled to a credit for the fair rental value of jointly held marital property against the party in possession of that property, provided there are no equitable defenses to the credit.  The award of rental value, however, is within the sound discretion of the trial court.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.).  

 

If a credit for rental is to be awarded, the party in possession is entitled to a credit for payments made to maintain the property on behalf of the dispossessed spouse.  If such credit is due to the party in possession, the credit for payments made on behalf of the dispossessed spouse will generally be one-half of the expenses, including debt service on the property.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

Some compensation should be paid when one spouse benefits from the use of the marital property to the exclusion of the other.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

When a separation is long, and there has been long continuous use of the premises by one party to the exclusion of the other, some fair return should be placed on the investment value of the dispossessed spouse's capital.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

When the defendant is the owner of a pension plan and will be eligible for social security benefits, imputed social security should also be deducted from the gross value of the plaintiff's pension, even though the plaintiff was afforded the opportunity to, and in fact, did, opt out of social security benefits.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

When the marital present value, after deduction of imputed social security, is less than the amount of the plaintiff's contribution, the final marital present value of the plaintiff's pension should be the amount of the contributions.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

Equity would not be served by rewarding the defendant for choosing to leave the work force, at the expense of the plaintiff who continued productive activity until age 70.  Nibert v. Nibert, 60 Som.L.J. 87 (2000) (Fike, P.J.). 

 

Where a Plaintiff elected the maximum single life annuity under the PSERS pension plan prior to her retirement and separation and withdrew the lump sum representing her voluntary contributions to roll into a purchased IRA account, the result of these actions is that the pre-retirement pension plan has been split into an “income stream” and a fixed IRA account, both of which were substantially acquired during the term of the marriage and represent “marital property” for distribution pursuant to 23 Pa.C.S.A. §3502(a).  Barkley v. Barkley, 63 Som. L.J. 402 (2007)(Klementik, J.)

 

Where Defendant had an income stream available for consideration of support and Defendant failed to claim support or APL, Defendant did not waive his right to claim the same as now an asset for equitable distribution. Plaintiff knew, or should have known, that there would have been a day of reckoning when a portion of the value of the marital property taken by her in the nature of an income stream would have to be tendered to Defendant in equitable distribution. Barkley v. Barkley, 63 Som. L.J. 402 (2007)(Klementik, J.)

 

A party may attempt to “double-dip” in the context of claiming an asset as both income for support and an asset for equitable distribution.  “Double-dipping” is not to be countenanced, and that once chosen by a party as an income item for support, they were precluded from demanding the same asset be made available for equitable distribution.  Barkley v. Barkley, 63 Som. L.J. 402 (2007)(Klementik, J.)

 

The basis of the award of rental value is that the party out of possession of jointly owned property is entitled to compensation for her/his interest in the property. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

The dispossessed party is entitled to a credit for the fair rental value of the jointly held marital property against a party in possession of that property, provided there are no equitable defenses to the credit. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

Generally, all property acquired by either party during the marriage is “marital property.” Such property is presumed marital regardless of how it is titled. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

Exceptions to the general rule exist for property that is: (1) excluded by valid agreement of the parties entered into before, during or after the marriage, (2) acquired after final separation, and (3) disposed of in good faith and for value prior to the date of final separation. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

Debt incurred jointly prior to the date of final separation is marital debt subject to equitable distribution. Debt incurred after the date of separation is characterized as non-marital debt and is not subject to equitable distribution. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

Property disposed of in good faith and for value prior to the date of final separation is not marital property. The presumption that funds are marital will control funds that are removed after the date of separation. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

DIVORCE – GENERALLY

 

Pa.R.C.P. 1920.43 is intended to provide relief in matters involving property issues raised by the parties in a divorce action.  Reese v Reese, 53 Som. 128 (1995).

 

Pa.R.C.P. 1920.41 provides that in divorce proceedings "[n]o judgment may be entered by default or on the pleadings."  Reese v Reese, 53 Som. 128 (1995). 

 

Pa.R.C.P. 1920.14 states that the averments in the complaint as to the divorce or annulment and all other claims which may be joined under the Divorce Code shall be deemed denied unless admitted by an answer.  Reese v Reese, 53 Som. 128 (1995).   

 

If a Defendant is not required to file an answer in order to deny the averments of the complaint, a default judgment or judgment on the pleadings would never be proper, however, there is no prohibition against filing an answer.  Reese v Reese, 53 Som. 128 (1995). 

 

The only circumstances which would allow the termination of a divorce action for failure to file a pleading are where a Plaintiff fails to file a Bill of Particulars under Rule 1020.21(b) which allows the entry of a judgment of non pros based upon such a default, or where a moving party fails to file an affidavit of consent and is dilatory in prosecuting the action.  Reese v Reese, 53 Som. 128 (1995). 

 

It is possible to pursue a motion for summary judgment in a divorce proceeding.  Reese v Reese, 53 Som. 128 (1995). 

 

The goal of alimony pendente lite is to prevent a dependent spouse from relinquishing valuable property rights in exchange for a quick settlement.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

Alimony pendente lite is payable throughout resolution of collateral economic issues, but is subject to termination if the dependent spouse engages in obstructionist tactics or deliberately delays the proceedings solely to prolong payment.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

Absent exceptional circumstances, neither party should be given the option of engaging in the financing of debt, or the benefit of "leverage" which would ensue if interest on marital debt were to be applied as a direct debit or credit.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

Credibility of witnesses is initially for the Master, who can observe their demeanor and attitude.  (Pizer) Kiraly v. Kiraly, 53 Som. 165 (1995). 

 

The basic policy underlying consent divorce is that it should be just that --- by consent.  Lowery v. Lowery, 53 Som. 200 

 

Even though plaintiff candidly states that the Petition to Withdraw Affidavit of Consent is based not on a change of heart, but on economic factors, the basic policy underlying consent divorce favors withdrawal.  Lowery v. Lowery, 53 Som. 200

 

Pennsylvania Rule of Civil Procedure 1920.43 permits a party in a divorce action to seek special relief.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The burden on the part seeking special relief is to set forth facts entitling the party to relief.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The relief requested in this case can be considered, and if appropriate, can be granted pursuant to exceptions filed by Plaintiff subsequent to the filing of the Special Master's Report and Recommendation, rather than pursuant to special relief.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The special relief encompassed with in the purview of Rule 1920.43 is relief which, if not granted at the time requested, may result in harm which cannot be reasonably remedied at a later date.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson). 

 

The situation for special relief of Rule 1920.43 is intended is analogous to a preliminary injunction situation.  Welker v. Welker 58 Som.L.J. 401 (2001) (J. Gibson).  

 

Rule 1920.42 provides (a) If a complaint has been filed requesting a decree on the grounds of irretrievable breakdown and (1) both parties have filed an affidavit under § 3301 (c) of the Divorce Code substantially in the form prescribed by Rule 1920.72 (b), or (2) either party has filed a 3301 (d) affidavit under 3301 (d) of the Divorce Code substantially in the form prescribed by Rule 1920.72 (d) the averments of which the other party has admitted or failed to deny, the prothonotary on praecipe in the form prescribed by Rule 1920.73 (b) shall transmit the record to the court which shall review the record and enter the appropriate decree.  No master shall be appointed.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

When reviewing exceptions to a Divorce Mater’s report, the scope of the Trial Court’s review is plenary and in divorce cases, the evidence must be considered de novo at every stage of the review. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

The report of the Master is entitled to great consideration and should not lightly be disregarded. It is advisory only, however, and the reviewing court is not bound by it and it does not come to the court with any preponderance weight or authority which must be overcome. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

Pa.R.C.P. 1920.43(a) gives the court discretion to grant other appropriate relief concerning marital property upon a petition for Special Relief. Cecil Maust v. Linda K. Maust, 65 Som.L.J. 160 (2012) (Geary, J.).

 

The Divorce Code does not govern the distribution of nonmarital property, therefore Husband was not entitled to special relief under Pa.R.C.P. 1920.43(a) relating to nonmarital property acquired prior to the marriage. Cecil Maust v. Linda K. Maust, 65 Som.L.J. 160 (2012) (Geary, J.).

 

DIVORCE – GROUNDS FOR DIVORCE

 

No general rule can be formulated as to the precise nature of the conduct that will constitute indignities to the person in a given case, as such conclusion will depend upon the circumstances of that particular case.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

Indignities may consist of vulgarity, unmerited reproach, habitual continually, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.  Several of these factors may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.). 

 

To make out a charge of indignities, three elements must be proved: (1) a course of conduct that, although varying according to the circumstances of each case, must in every case (2) be inconsistent with the marital relationship, and (3) render the condition of the innocent party intolerable, and his or her life burdensome.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.). 

 

Continuous and false accusations of infidelity accompanied by other humiliating or degrading behavior will sustain a claim of indignities.  Accusations of infidelity will not constitute indignities, even though the accusations are false, if they were made with reasonable grounds for believing them to be true.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.). 

 

The moving party must also prove that he or she is the injured and innocent spouse.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

Conduct which assaults a person's dignity, self-esteem and sense of individual worth, and which is carried out in an attempt to achieve excessive control over the other person constitutes indignities.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

A court cannot grant a divorce simply because a marriage is irretrievably broken.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

DIVORCE – HEARING OFFICER – STANDARD OF REVIEW

 

When reviewing a hearing officer’s or master’s report made under the provisions of the Divorce Code, the reviewing court must consider the evidence, its weight and the credibility of the witnesses, de novo. Huston v. Huston, 64 Som.L.J. 310 (2009) (Geary, J).

 

DIVORCE – PRENUPTIAL & POSTNUPTIAL SETTLEMENT AGREEMENTS

 

Discussion of pre- and postnuptial agreements:  Post-Simeone considerations; to be evaluated as contracts; terms by which parties are to be bound; full and fair disclosure of financial positions; rebuttal of presumption of full disclosure through assertion of fraud or misrepresentation; duress.  Sieling v. Sieling [No. 2], 50 Som. 86

 

Where both parties to a postnuptial agreement have been previously married, have adult children as a result of these marriages, testimony indicates that both entered the agreement for protection of their individual assets, and wife entered the agreement contrary to the advice of independent counsel, wife has failed to produce the clear and convincing evidence required to rebut the presumption of full disclosure.  Sieling v. Sieling [No. 2], 50 Som. 86 

 

The Heart Balm Act does not abolish causes of action which seek recovery of antenuptial gifts when the marriage does not occur.  The Act only eliminated actions for breach of contract to marry.  Stiles v. Hogue, 54 Som. L.J. 162 (Sep. 20, 1996) (Fike, P.J.)

 

Where the complaint alleges that plaintiff expended time, effort, and money for the improvement of a residence as a gift, upon condition that she and defendant would be married, and further alleges that defendant breached the marriage engagement entitling plaintiff to recover her property, plaintiff has stated a cause of action of conditional gift to withstand demurrer.  Stiles v. Hogue, 54 Som. L.J. 162 (Sep. 20, 1996) (Fike, P.J.)

 

In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.  23 Pa. C.S.A. § 3105(c).  Ream v. Ream, 54 Som. L.J. 207 (Sep. 5, 1997) (Cascio, J.)

 

Although there is a presumption that insurance contracts are made with reference to substantive law and statutes presently in force and that those statutes are part of the contract as if actually incorporated into the contract, there is no support for similar conclusions regarding the Divorce Code.  Ream v. Ream, 54 Som. L.J. 207 (Sep. 5, 1997) (Cascio, J.). 

 

A court will not enforce an agreement to waive one's rights under the Protection From Abuse Act (PFAA), 23 P.S.A. § 6101, et seq., in light of public policy and in furtherance of the purpose of the Act.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

Contract principles of law apply to ante-nuptial and post-nuptial agreements.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

Absent fraud, misrepresentation or duress, spouses should be bound by the terms of their agreements.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

The law is well settled that an agreement as to support, alimony or an adjustment of property rights between husband and wife is perfectly proper, valid and legal even though made in contemplation of divorce.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

A contract is illegal if it has for its object the procurement of a divorce, as where one spouse agrees to institute a divorce action. The types of agreements which have been deemed invalid because they facilitate divorce include: agreements which provide that one of the spouses will not present a defense to an action for divorce by the other; that no appeal will be taken or exceptions filed, or that one spouse will furnish evidence or aid the initiator of the divorce.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

Domestic agreements that have been generally upheld by courts are those that pertain to support, alimony, or property rights between husband and wife, but not those agreements that pertain to the right to defend oneself during a divorce action.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.).

 

The amounts of child support set forth in the Support Guidelines are based upon the idea that the child of separated or divorced parents should receive the same proportion of parental income that she or he would have received if the parents lived together.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.) 

 

The guidelines shall be based upon the reasonable needs of the child and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.)

 

Each parent is required to contribute a share of the chidl's reasonable needs proportional to that parent's share of the combined net income.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.) 

 

When dealing with child support orders, advisory effect will be given to an agreement between the parties but without binding effect on the court when it is not in the best interests of the child.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.)

 

Agreements between the parties which pertain to child support are always subject to court intervention.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.) 

 

A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.  23 Pa.C.S.A. §3105(b).  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.)

 

Contracts between husband and wife, if fairly made, are generally considered binding as to them, although legally ineffective to oust the jurisdiction of the court in a support action.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.)

 

A mother cannot, by contract, bargain away the right of her minor children to adequate support from the father, regardless of the validity of the agreement as between the parents themselves.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.) 

 

In each case it is for the court to determine whether or not the terms of the agreement are reasonable, made without fraud or coercion, and have been carried out in good faith.  Kusch v. Kusch, 60 Som.L.J. 446 (2003) (Gibson.J.) 

 

In view of the fact that the Court has jurisdiction to enforce private support agreements, notwithstanding the existence of a separate Domestic Relations Order, the existence of an alimony pendente lite order does not vitiate the parties' private agreement, and does not preclude either party from enforcing the terms of the agreement in an action in assumpsit or equity.  Nightingale v. Nightingale, 61 Som.L.J. 375 (2005) (Fike, II, P.J.)

 

We find the contention that a Master cannot base his recommendation on the parties' agreement to be meritless.  It is well established that courts have authority to enter consent decrees, which are agreements between parties in an equity action that are binding with the same force and effect as if a final decree had been rendered after a full hearing on the merits.  See Osial v. Cook, 2002 PA Super. 214, 803 A.2d 209 (2002); Lower Frederick Twp. Twp., v. Clemmer, 518 Pa. 313, 543 A.2d 502 (1988).  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.).

 

Given that a Master's hearing resembles a court proceeding, in that both are record hearings, a Master also is authorized to place a settlement agreement on the record and to base his recommendation on the same.  Adams v. Adams, 848 A.2d 991 (2004).  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.).            

 

Settlement not only expedites the transfer of money into the hands of a complainant, but, also, relieves courts of numerous burdens and expenses.  Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943 (2004) citing Rothman v. Fillette, 469 A.2d 543 (1983).  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.). 

 

We note that although Pa.R.C.P. 1920.53 does not specifically reference private agreements, case law exists whereby a Divorce Master placed the parties' divorce agreement on record after permitting several hours for negotiation, but without conducting any sort of formal hearing.  See Luber v. Luber, 614 A.2d 771 (1992).  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.).

 

We will not set aside the Master's findings simply because the Master recommended that the Court accept the parties' private agreement.  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.). 

 

Although agreements can be set aside on the basis of duress, appellant did not prove duress in the legal sense by merely asserting that she had suffered anxiety as a result of the stressful nature of the divorce proceedings.  Adams v. Adams, 848 A.2d 991 (2004).  Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.).

 

We find that plaintiff has not set forth sufficient grounds to set aside the Final Master's Report.  We are of the opinion that if plaintiff did not fully agree with the terms that were dictated into the record, he should have immediately voiced his contentions.  Further, if plaintiff was dissatisfied with the efforts of his attorney and felt that he had not been afforded ample time to fully review the terms of the agreement with her, he should have stated to the contrary during the Master's colloquy.  Similarly, if plaintiff felt he was being coerced into executing the agreement, he should not have indicated that he was entering the agreement of his own free will.              Klink v. Klink, 62 Som.L.J. 140 (2005) (Fike, P.J.).

 

DIVORCE – SPOUSAL SUPPORT

 

In general the Uniformed Services Former Spouses Protection Act preempts the application of state equitable distribution and community property laws to that portion of military retirement pay which is waived by the retiree in favor of military disability retirement pay.  Schnatterly v. Schnatterly, 53 Som. 147 (1995)

 

Nothing in 10 U.S.C.A. 1408(e)(6) shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired or retainer pay under this section have been made in the maximum amount permitted under the direct payment mechanism.  Schnatterly v. Schnatterly, 53 Som. 147 (1995)

 

The Uniformed Services Former Spouses Protection Act does not preempt a state court from considering a veteran's monthly disability compensation received in lieu of military retirement pay as monthly income for determining child and spousal support.  Schnatterly v. Schnatterly, 53 Som. 147 (1995)

 

Because the definition of a "court order" in the Uniformed Services Former Spouses Protection Act is a "final decree of divorce, dissolution, annulment, or legal separation," when parties are still married, the Act does not apply.  Schnatterly v. Schnatterly, 53 Som. 147 (1995)

 

While the Uniformed Services Former Spouses Protection Act precludes consideration of disability pensions for purposes of equitable distribution and alimony, the trial court properly found that there is no such preclusion as to spousal and child support.  Schnatterly v. Schnatterly, 53 Som. 147 (1995) 

 

Parties may contract away their statutory rights to support and alimony.  Lambert v. Lambert, 53 Som. 304

 

The formula to be applied when calculating spousal support or alimony pendente lite requires the application of a 40% adjustment to the difference between the monthly net incomes of the parties when there are no dependent children.  Pa.R.C.P. 1910.16-3(a).  Harbaugh v. Harbaugh, 53 Som. 345

 

Alimony has in common with support and alimony pendente lite that it is a duty arising out of marriage but is distinguished in that it continues after divorce when fixed in conjunction with a divorce or annulment decree; its purpose is not to reward one party and to punish the other, but rather to ensure that reasonable needs, of the person who is unable to support himself through appropriate employment, are met.  Harbaugh v. Harbaugh, 53 Som. 345

 

All three are species of support and, as such, the relevant considerations in arriving at the amount are those elemental to any support order: duty of the obligor, need of the obligee, and the ability to pay on the part of the obligor.  Harbaugh v. Harbaugh, 53 Som. 345 

 

In certain circumstances, the support guidelines and formula may be appropriate measures of the amount of alimony to be awarded.  Harbaugh v. Harbaugh, 53 Som. 345

 

Spousal support and alimony pendente lite are two distinct concepts, and, therefore, dismissal of a spousal support claim does not bar a claim for alimony pendente lite.  Krepelka v. Krepelka, 54 Som. L.J. 241 (May 31, 1996) (Fike, P.J.) 

 

Where the wife has withdrawn from the marital residence, in order to qualify for spousal support, she need only demonstrate, by sufficient evidence, that she had a reasonable cause for leaving.  Sterner v. Sterner, 54 Som. L.J. 362 (February 12, 1998) (Cascio, J.)

 

A husband may avoid the obligation to support his wife only if his refusal to pay is based upon conduct by her which would be a valid ground for a decree in divorce, and he can demonstrate that he is the innocent and injured spouse.  Sterner v. Sterner, 54 Som. L.J. 362 (February 12, 1998) (Cascio, J.)

 

Spousal support depends on the status of the marriage.  Its purpose is to provide a reasonable standard of living to the dependent spouse.  Unlike alimony pendente lite, which may continue until the completion of the litigation, spousal support ends upon the termination of the marriage.  Sterner v. Sterner, 54 Som. L.J. 362 (February 12, 1998) (Cascio, J.)

 

The Pennsylvania Rules of Evidence shall be followed in all record hearings conducted in an action for support.  Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).

 

Aside from providing for basic needs, one of the principal aims of social welfare is to provide the means to effect a return to self-sufficiency.  A requirement that support obligors demand unemployment compensation in every case, despite the availability of a job, and the desire and ability to return to the work force, would be bad policy.  Benton v. Benton, 58 Som.L.J. 267 (1999) (P.J. Fike). 

 

The obligation of spousal support continues until it is shown that the conduct of the dependent spouse provides grounds for divorce.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

The conduct claimed to nullify the obligation to pay spousal support must be proven with clear and convincing evidence.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

The only cause that will legally excuse a spouse's refusal to support a dependent spouse is conduct upon the part of the dependent spouse which would in a divorce proceeding rise to the level of constituting valid grounds for a fault divorce.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

No general rule can be formulated as to the precise nature of the conduct that will constitute indignities to the person in a given case, as such conclusion will depend upon the circumstances of that particular case.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

Indignities may consist of vulgarity, unmerited reproach, habitual continually, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.  Several of these factors may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

To make out a charge of indignities, three elements must be proved: (1) a course of conduct that, although varying according to the circumstances of each case, must in every case (2) be inconsistent with the marital relationship, and (3) render the condition of the innocent party intolerable, and his or her life burdensome.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

Continuous and false accusations of infidelity accompanied by other humiliating or degrading behavior will sustain a claim of indignities.  Accusations of infidelity will not constitute indignities, even though the accusations are false, if they were made with reasonable grounds for believing them to be true.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.).

 

The moving party must also prove that he or she is the injured and innocent spouse.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.). 

 

Conduct which assaults a person's dignity, self-esteem and sense of individual worth, and which is carried out in an attempt to achieve excessive control over the other person constitutes indignities.  Mazey v. Mazey, 59 Som.L.J. 134 (2001) (Gibson, J.). 

 

Typically, credit is considered in terms of reimbursement for alimony pendente lite, which is defined as "temporary support granted to a spouse during the pendency of a divorce or annulment proceeding", 23 Pa.C.S.A. §3101, but not in terms of reimbursement of spousal support, which is defined as "care, maintenance and financial assistance.  Somma v. Somma, 60 Som.L.J. 164 (2002) (Cascio, J.).

 

When a reimbursement for past due benefits is stated for a discrete period (i.e. a lump sum SSDIB payment), we find that the amortization should be applied for the same period.  Moore v. Moore, 61 Som.L.J. 138 (2003) (Cascio, J.) 

 

The issue of Plaintiff's entitlement turns on the question of credibility of the witnesses, and as such we defer to the Master's conclusion that Plaintiff established an adequate reason to leave the marital residence.  Moore v. Moore, 61 Som.L.J. 138 (2003) (Cascio, J.) 

 

Whether credit disability payments, made pursuant to certain insurance policies on behalf of plaintiff, are income attributable to plaintiff.  Croyle v. Croyle, 61 Som.L.J. 219 (2004) (Cascio, J.)

 

The SSI payments made on plaintiff's behalf are not income for purposes of support; however, we see no reason why some deviation in the guideline amount of support may not be considered based upon the fact that plaintiff does not have these direct expenses to pay on a monthly basis.  Croyle v. Croyle, 61 Som.L.J. 219 (2004) (Cascio, J.)

 

The concept of freeing up "income available for support" is appropriate where the benefit received by the parting in question does not fit the statutory definition of "income."  Croyle v. Croyle, 61 Som.L.J. 219 (2004) (Cascio, J.)

 

In a deferred distribution of a defined benefit pension, the spouse not participating may not be awarded any portion of the participant's spouse retirement benefits which are based on post-separation salary increases, incentive awards or years of service.  King v. King, 61 Som. L.J. 320, 324-325 (2005) (Cascio, J.)

 

When the defendant support obligor voluntarily leaves the marital residence, and the evidence does not show a "lock out" or constructive desertion, it is not the plaintiff support obligee's burden to provide reasons for the separation, but the defendant's to prove conduct on the part of the plaintiff constituting grounds for a fault divorce.              Rose v. Rose, 61 Som.L.J. 370 (2005) (Fike, II, P.J)

 

In view of the fact that the Court has jurisdiction to enforce private support agreements, notwithstanding the existence of a separate Domestic Relations Order, the existence of an alimony pendente lite order does not vitiate the parties' private agreement, and does not preclude either party from enforcing the terms of the agreement in an action in assumpsit or equity.  Nightingale v. Nightingale, 61 Som.L.J. 375 (2005) (Fike, II, P.J.)

 

Pa.R.C.P. 1910.16‑5(b) provides that the Court should consider nine individual factors in determining whether to deviate from the amount of spousal support.  Pa.R.C.P. 1910.16‑5(c) directs the Court to consider "the period of time which the parties lived together from date of marriage to the date of final separation.”  Kostick v. Kostick, 63 Som.L.J. 271 (2007) (Klementik, J.)

 

Rule 1910.16‑5 sets forth the factors for deviation from the presumptive amount of support.  Subdivision (c) and subsection (b)(8) permit the court to consider the length of the marriage in determining the amount and duration of a spousal support or alimony pendente lite award.  The primary purpose of these provisions 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 credit for these payments at the time of equitable distribution.  Kostick v. Kostick, 63 Som.L.J. 271 (2007) (Klementik, J.)

 

The parties were married for approximately six weeks.  It would be a substantial injustice to require the Defendant to amass ongoing spousal support premised on a marriage of such short duration as found in this case.  Kostick v. Kostick, 63 Som.L.J. 271 (2007) (Klementik, J.)

 

A spouse may forfeit entitlement to support if he or she (1) voluntarily leaves the marital residence without adequate legal reason, or (2) engages in conduct that constitutes grounds for a fault divorce. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

Cohabitation with a person of the opposite sex who is not a family member within the degrees of consanguinity bars entitlement to alimony. Mere cohabitation does not constitute grounds for fault divorce; a party must prove more in order to successfully bar entitlement to spousal support. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

The “inclination and opportunity rule” permits the court to presume adulterous conduct has taken place where it has been proven that both parties to the alleged conduct had the inclination to engage in adulterous conduct and they also had the opportunity to act on their mutual inclination. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

Though the general rule is modification orders are to be made effective as of the date the petition for modification was filed, an exception exists for cases where the petitioner was precluded from filing on an earlier date due to a significant physical or mental disability, misrepresentation of another party or other compelling reason, and the petitioner promptly filed a petition after the precluding reason was removed or remedied. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

In general, spousal support should be retroactively terminated as of the date of filing of the complaint for support when it is proven that the complaining party engaged in adulterous conduct prior to the time of filing of the complaint. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

Alimony is forfeited if a person cohabits with a person of the opposite sex who is not a family member within the degrees of consanguinity. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

Cohabitation, in its strict legal sense, “requires that two persons of the opposite sex reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship.” Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

Cohabitation involves more than merely engaging in sexual intercourse or merely spending a night or weekends at another person’s residence. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.).    

 

Cohabitation must be proven by a preponderance of the evidence. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

Spousal support is forfeited when a spouse (1) voluntarily leaves the marital residence without adequate legal reason, or (2) engages in conduct that constitutes grounds for a fault divorce. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

Grounds for a fault divorce include desertion, adultery, cruel and barbarous treatment, bigamy, imprisonment and indignities. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

To successfully bar entitlement to spousal support, the fault grounds must be proven by clear and convincing evidence. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

Post-separation adultery has been, and continues to be, a valid reason to bar entitlement to spousal support. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

Pennsylvania has adopted the “inclination and opportunity rule” which permits the court to presume that adultery has taken place where it has been proven that both parties to the alleged conduct possessed an inclination to engage in sexual intercourse with the other and they had the opportunity to act on their mutual inclination. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

In most instances, “mutual inclination” is established by bringing forth clear and convincing evidence that the parties to the alleged adultery have shared a mutual romantic interest in each other. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

“Opportunity” is established by bringing forth clear and convincing evidence that the parties have spent more than a brief time alone together. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

The fact that a husband’s own conduct may preclude a divorce from a wife who has committed adultery does not necessarily preserve the legal duty to support her. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

An order of support may be refused, or vacated, where the wife is guilty of infidelity, notwithstanding the fact that the husband is likewise guilty of misconduct which precludes him from obtaining a divorce. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

A spouse need not prove that he or she is the innocent and injured spouse in order to defeat the support claim of the other spouse on the ground of adultery.  Rather, the proper practice is for the court to take the adulterous acts of both parties into consideration, and then reach a decision after weighing the equities of the case. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

When the circumstances demonstrate that there is no significant difference in the adulterous conduct of the parties and both spouses have resolved to move on from the marriage, it is most just to cease entitlement to support. Zeglin v. Zeglin, 65 Som. L.J. 106 (2012) (Geary, J.). 

 

DIVORCE – TAX CONSEQUENCES

 

The revisions to the Divorce Code in 2004 expanded the role of the court in its ability to consider the impact of tax consequences even when the impact is not immediate and certain.  23 Pa.C.S.A. §3502(a)(10.1).  Barkley v. Barkley, 63 Som. L.J. 402 (2007)(Klementik, J.)

 

In deciding whether the Master erred in failing to take into account the tax considerations suffered by Plaintiff in her receipt of the pension income stream from the date of separation to the date of distribution in the amount of reimbursement of marital property to Defendant, and where there is no development in testimony of the nature of the $100 health care reimbursement as being tax-exempt or subject to tax, it is unnecessary to further consider Plaintiff’s argument regarding the treatment of taxes during the period of separation to date in view of the fact that the pension income of $2,323.00 per month paid to Plaintiff is net of taxes. Barkley v. Barkley, 63 Som. L.J. 402 (2007)(Klementik, J.)

 

Per Pa.R.C.P. No. 1910.16-4(f)(1), an order awarding both spousal and child support may be unallocated or state the amount of support allocable to the spouse and the amount allocable to each child…No consideration of federal income tax consequences shall be applied if the order is unallocated or the order [is] for the spousal support or alimony pendente lite only.  Irwin v. Irwin, 66 Som.L.J. 1 (2015)(Geary, J.)

 

The 2005 amendment to Pa.R.C.P. 1910.16-4(f)(1) supersedes Diament v. Diament, 816 A.2d 256 (Pa. Super. Ct. 2003), to the extent that it held that the tax savings from payments for the benefit of a spouse alone or from an unallocated order for the benefit of a spouse and child must be considered in determining the obligor's available net income for support purposes. Irwin v. Irwin, 66 Som.L.J. 1 (2015)(Geary, J.)

 

Rule 1910.16-4(f)(1) states that the guidelines formula assumes that the order will be unallocated. The tax consequences of an order for a spouse alone or an unallocated order for the benefit of a spouse and child have already been built into the formula.  Irwin v. Irwin, 66 Som.L.J. 1 (2015)(Geary, J.)

 

The plaintiff…ended up owing [more] on her 2013 federal income taxes as a result of having to claim her spousal support payments as income.  To account for this additional tax liability, the hearing officer subtracted [the amount of the plaintiff’s increased tax liability due to spousal support payments she received] from the plaintiff’s gross monthly income.  We believe this subtraction is improper because it runs afoul of the provisions of Pa.R.C.P. No. 1910.16-4 holding that “[n]o consideration of federal income tax consequences shall be applied if the order is unallocated or the order for the spousal support or alimony pendente lite only.”  Irwin v. Irwin, 66 Som.L.J. 1 (2015)(Geary, J.)

 

 

DOMESTIC RELATIONS CODE § 2511 to § 2558: ADOPTION PROCEEDINGS

 

First, the court must determine if the requirements of 23 Pa.C.S.A. § 2511 a) are met; second, as outlined in 23 Pa.C.S.A. § 2511 b), child’s developmental, physical and emotional needs as well as the welfare of the child must be given primary consideration by the court.  In re: N.J.K., 61 Som.L.J. 10 (2003) (Gibson, J.) 

 

23 Pa.C.S.A. § 2511 a) 1) reads: The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.  In re: N.J.K., 61 Som.L.J. 10 (2003) (Gibson, J.) 

 

23 Pa.C.S.A. § 2511 b) reads: The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.  The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.  With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.  In re: N.J.K., 61 Som.L.J. 10 (2003) (Gibson, J.) 

 

The addition of §2511(b) to the Adoption Act does not abrogate the requirements of §2511(a).  In re: N.J.K., 61 Som.L.J. 10 (2003) (Gibson, J.) 

 

Section 2511(b) does not contain an additional ground for terminating parental rights; such grounds are contained in §2511(a) only.  In re: N.J.K., 61 Som.L.J. 10 (2003) (Gibson, J.) 

 

Thus, until the requirement of §2511(a) is met, there is no need to consider §2511(b).  In re: N.J.K., 61 Som.L.J. 10 (2003) (Gibson, J.) 

 

The pertinent inquiry is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship.  In Re: N.J.K., 61 Som.L.J. 10, (2003) (Gibson, J.).

 

DOMESTIC RELATIONS CODE § 3101 to 3105: DIVORCE GENERALLY

           

Alimony is an order for support granted by this Commonwealth to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.  Harbaugh v. Harbaugh, 53 Som. 345

 

A party to a Marriage Settlement Agreement may enforce the terms of that agreement, even where it has not been merged or incorporated into the divorce decree, as if it were an order of the court.  23 Pa.C.S.A. §3105(a).  Ream v. Ream, 50 Som. 57 

 

Where the parties desire to settle and dispose of their respective party rights finally and for all time, such agreement should be construed as a post-nuptial agreement.  Lambert v. Lambert, 53 Som. 304 

 

The subsequent reconciliation of the parties does not abrogate such a post-nuptial agreement.  Lambert v. Lambert, 53 Som. 304 

 

A separation agreement does not constitute, nor is it intended to constitute a full and final determination of the separate property rights of the parties; it is customarily a surrender of the wife's rights to support in consideration of some property settlement.  Lambert v. Lambert, 53 Som. 304 

 

Subsequent reconciliation and cohabitation presumably end a separation agreement.  Lambert v. Lambert, 53 Som. 304 

 

A settlement agreement between a husband and a wife is governed by the law of contracts unless the agreement provides otherwise.  Lambert v. Lambert, 53 Som. 304 

 

Any material failure of performance by one party to a contract not justified by the conduct of the other discharges the latter's duty to give the agreed exchange; but if the alleged breach was an immaterial failure of performance, and the contract was substantially performed, the provisions of the contract are still effective.  Lambert v. Lambert, 53 Som. 304 

 

Contracts between husband and wife, if fairly made, are generally considered binding as to them although legally ineffective to oust the jurisdiction of the court in an action for the support of the wife.  Lambert v. Lambert, 53 Som. 304 

 

Parties may contract away their statutory rights to support and alimony.  Lambert v. Lambert, 53 Som. 304 

 

Marital settlement agreements are governed by 23 Pa.C.S.A. § 3105.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J Gibson).

 

Section 3105 essentially removes the distinction between merged and unmerged agreements for enforcement purposes and it permits modification of a child support provision of a property settlement agreement upon a showing of changed circumstances.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J Gibson). 

 

The language of § 3105 (b) does not contain any specific, or implied, restriction upon the authority of a court to modify a provision of an agreement regarding child support except that there must be a showing of changed circumstances.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

Pursuant to 23 Pa.C.S.A. § 3105 (b), a court has the authority to modify any aspect of a child support provision contained in an agreement between the parties upon a showing of changed circumstances.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

In order to justify a modification under §3105 (b), the Court concludes that the changed circumstances asserted as the basis for the modification should either:  1. Be significant to an extent that the requesting party is affected in a material manner, thereby creating an inequitable situation which can best be resolved by Court intervention in the nature of a judicial modification; and additionally, the modification will not adversely affect the best interest of the child or children to a degree which outweighs the inequitable impact upon the party; or 2. Affect the best interest of the child or children to a degree which justifies intervention by the Court.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

Although the language of §3105 (b) permits a judicial modification based upon changed circumstances which primarily affect the parties rather than the child or children, it appears that the required severity of the adverse effect should be significantly higher where the adverse effect is on a party, rather than upon the best interest of the child or children.   Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

Section 3105 (b) is primarily intended to permit a court to intervene where changed circumstances cause a provision of an agreement to adversely impact the best interests of the child or children; and in many cases, the parties could have reasonably anticipated the changed circumstances and, therefore could have addressed the situation in the agreement.  Rock v. Rock, 58 Som.L.J. 118 (2001) (J. Gibson). 

 

The policy objectives set forth in 23 Pa.C.S.A. §§ 3102 require the trial court to fashion an equitable distribution scheme under Divorce Code § 3502 that focuses on the future, not the past; that seeks to promote the welfare of both parties without unduly harming either party; and that is, above all, fair and just under the circumstances. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

The Court will not consider claims that one party imprudently incurred excess debt during the marriage, if the debt was incurred in good faith. Harrington v. Harrington, 64 Som.L.J. 37 (2009) (Geary, J.)

 

DOMESTIC RELATIONS CODE § 3301 to § 3309: DIVORCE GENERALLY

 

Proof of innocent and injured status is required in divorce actions under subsection 23 Pa.C.S.A. 3301(a).  Reese v Reese, 53 Som. 128 (1995)

 

Although Plaintiff alleges that Defendant was sentenced to a term of imprisonment of thirteen months to five years, and it is clear that this sentence would bring Defendant within the provision of 23 Pa.C.S.A. 3301(a)(5), properly certified and authenticated records of the conviction and sentence must be produced.  Reese v Reese, 53 Som. 128 (1995).

 

23 Pa. C.S.A. 3301 (c) provides, the court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

An individual filing for divorce on grounds of irretrievable breakdown under Section 3301 (d) must file both a complaint and an affidavit.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005).  

 

DOMESTIC RELATIONS CODE § 3323: DIVORCE DECREE OF COURT

 

In the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties economic rights and obligations arising under the marriage shall be determined under this part [23 Pa.C.S.A. § 3323 (d.1)] rather than under 20 Pa.C.S.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005).

 

Section 5 (4) of Act 175 states, in pertinent part, the amendment or addition of 23 Pa.C.S. § 3323 (d) and (d.1) ... shall apply to the death of one of the parties on or after the effective date of this paragraph irrespective of whether the divorce proceeding was commenced before, on or after the effective date of the paragraph.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005). 

 

Section 3323 (g) states ... in the case of an action for divorce under Section 3301 (a) or (b) (relating to grounds for divorce), the court adopts a report of the master or makes its own findings that grounds for divorce exist.  (2) in the case of an action for divorce under Section 3301 (c), both parties have filed affidavits of consent.  (3) in the case of an action under Section 3301 (d), an affidavit has been filed and no counter-affidavit has been filed denying the affidavit's averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least two years at the time of the filing of the affidavit.  Timulak v. Timulak, 62 Som.L.J. 236 (Upor, J.) (2005).

 

Although Section 3323(f) grants the court broad discretionary power to act to “protect the interests of the parties,” it is not required to do so in the event the court determines alternative course of action are available to the petitioner. Cecil Maust v. Linda K. Maust, 65 Som.L.J. 160 (2012) (Geary, J.).

 

DOMESTIC RELATIONS CODE § 3332: OPENING OR VACATING DIVORCE DECREES

 

A petition to open a decree of divorce or annulment may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity; a motion to vacate a decree alleged to be void because of extrinsic fraud must be made within five years after the entry of the final decree.  Baer v. Baer, 53 Som. 70 (1993.

The intent of '3332 was to codify the extraordinary circumstances which will outweigh the interest of the parties and the court in finality, and delimit the time periods within which such circumstances must be established.  Baer v. Baer, 53 Som. 70 (1993.

 

DOMESTIC RELATIONS CODE § 3502: EQUITABLE DIVISION OF MARITAL PROPERTY

 

Ordinarily, in determining which spouse shall be awarded exclusive possession of the marital residence pending equitable distribution, the court considers three factors:  the severity of the offending conduct, the effect on the minor children and the relative ability to obtain alternative accommodations.  Usnik v. Usnik, 53 Som. 83 (1994). 

 

While both spouses have and interest in occupying or using the family home as a dwelling place, and some continuing hardship would be imposed upon plaintiff-mother by an order prohibiting her return, neither of these findings is dispositive.  Usnik v. Usnik, 53 Som. 83 (1994).

 

It is desirable for a child to be able to return and live in the marital residence with his or her siblings, but only if conflict between the parents can be avoided.  Usnik v. Usnik, 53 Som. 83 (1994).

 

A return of the departing spouse after a long absence, solely for the purpose of residence, would have caused excessive and unwarranted stress and disruption within the family unit under the circumstances of this case.  Usnik v. Usnik, 53 Som. 83 (1994).

 

Although it is desirable for siblings to live together, the desirability of attaining that objective was outweighed in this case by the constant friction and tension which necessarily would have resulted if both parents had been granted permission to live in the marital home.  Usnik v. Usnik, 53 Som. 83 (1994).

 

Although the exclusion of a spouse from the marital home is a harsh remedy, the need for such an award was demonstrated by the unique facts of this case.  Usnik v. Usnik, 53 Som. 83 (1994).

 

In order to ensure that marital property is preserved for equitable distribution, Section 3505(a) empowers the court to issue injunctions to prevent removal or disposition of said marital property. Cecil Maust v. Linda K. Maust, 65 Som.L.J. 160 (2012) (Geary, J.).

 

DOMESTIC RELATIONS CODE § 3701 to 3707: ALIMONY AND SUPPORT

 

An award of a reasonable amount of alimony is permitted only if the court finds it necessary.  23 Pa.C.S.A. 3701.  Harbaugh v. Harbaugh, 53 Som. 345

 

The court may award counsel fees and costs in a contempt proceeding where it is deemed appropriate.  23 Pa.C.S.A. '3703.  Ream v. Ream, 50 Som. 57

 

DOMESTIC RELATIONS CODE § 6101 to 6117: PROTECTION FROM ABUSE

 

Petitioner must prove serious bodily injury to meet her burden of persuasion under the Protection from Abuse Act.  23 Pa.C.S.A. '6101 et seq.  Stanton v. Stanton, 50 Som. 1

 

Abuse is defined as "[a]ttempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury..." 23 Pa.C.S.A. 6102(a). Stanton v. Stanton, 50 Som. 1

 

"Bodily injury" is the "impairment of physical condition or substantial pain."  18 Pa.C.S.A. 2301.  Stanton v. Stanton, 50 Som. 1

 

Abuse is defined as the occurrence ... the following act[] between family or household members, sexual or intimate partners, or persons who share biological parenthood: ... Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to Child Protective Services).  23 Pa. C.S.A. 6102(a)(4).  J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

The goal of the Protection From Abuse Act is to provide immediate protection from the threat of physical violence.  A court order may tend to deter future violent acts.  A determination from the court that the defendant is in fact an abuser would increase the chances that law enforcement officials will use special efforts to protect the victim and will treat the acts of the defendant seriously.  J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

The primary goal of the Protection From Abuse Act is not retroactive punishment, but, rather to advance prevention of physical and sexual abuse.  This goal is evident in the Act’s emergency provisions which permit the court to quickly and flexibly respond to advance warnings of abuse. J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

The Protection from Abuse Act was designed to ameliorate the inadequacies of the traditional approach to domestic violence and the protection afforded under the Act is in addition to, and not a substitute for other remedies.  J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

A partnership is a relationship wherein two or more persons agree to carry on any business or adventure together.  J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

The Protection From Abuse Act necessitates that the parties involved must be, or have been, related by affinity or voluntarily connected in some way.  For purposes of the Act, a sexual assault is not a voluntary connection.  J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

The Protection From Abuse Act’s protection is conditioned upon a previous or existing connection.  The Act is triggered only if the condition is present first, and then the abusive conduct occurs.  The relationship between the parties, not the conduct alleged, determines whether the protective features of the Act are available.  J.H. v. J.H., 54 Som. L.J. 305 (October 30, 1997) (Cascio, J.)

 

A court may grant a protection order to prevent abuse for a duration of up to one year after a hearing on the merits.  Stanton v. Stanton, 50 Som. 1

 

A court may grant an ex parte temporary order for protection from abuse as emergency relief before the hearing on the Petition.  Stanton v. Stanton, 50 Som. 1

 

The issues of temporary custody and visitation may be considered at the ex parte consideration of a temporary order for protection from abuse.  Stanton v. Stanton, 50 Som. 1

 

The duration of the final protection order will begin to run as of the date on which the order is signed, regardless of the duration of any temporary order which may have been in effect.  Stanton v. Stanton, 50 Som. 1

 

There are no statutory limitations on the term of a temporary order.  Stanton v. Stanton, 50 Som. 1

 

JURISDICTION – UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

 

Interstate custody proceedings are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 23 Pa. C.S.A. § 5401.          Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.).

 

Both UCCJA § 5344, and now UCCJEA § 5421, state that a Court of this Commonwealth has jurisdiction if, inter alia, this Commonwealth is the home state of the child at the time of commencement of the proceeding.  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.). 

 

The UCCJEA eliminated the "best interest" basis for jurisdiction.  UCCJEA, 23 Pa.C.S.A. § 5421.  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.).

 

Under the newly enacted UCCJEA § 5422, continuing jurisdiction over custody proceedings is now more limited.  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.).

 

Under UCCJEA § 5422, a court which makes an initial custody determination has "exclusive continuing jurisdiction" only until (1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships; or (2) a court of this Commonwealth or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this Commonwealth.  23 Pa.C.S.A. § 5422 (a)(1) and (2).  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.).

 

UCCJEA § 5422 (b) provides that (b) [m]odification where court does not have exclusive, continuing jurisdiction. - A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 5421.  23 Pa.C.S.A. § 5422 (b).       Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.). 

 

Pursuant to the above quoted provisions of UCCJEA § 5422, this Court has now lost continuing jurisdiction, since neither the child nor either the parent now lives in Pennsylvania.  UCCJEA § 5422 (a)(2).  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.). 

 

Although not necessary for this determination, we also find, under UCCJEA § 5422 (a)(1), that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and we further find that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships.  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.). 

 

Under subparagraph (b) of UCCJEA § 5422, in view of the fact that we do not have exclusive continuing jurisdiction, we also cannot now modify the existing child custody order, since we do not have jurisdiction to make an initial determination under UCCJEA § 5421.  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.). 

 

   Since this Court has lost exclusive, continuing jurisdiction, and since we would have no authority to consider modification even if a petition now were filed, we must defer to the courts of the state of New Jersey and stay the instant proceedings.  Newcomer v. Glessner, 62 Som. L.J. 197 (2005) (Fike, P.J.).

 

JURISDICTION – UNIFORM INTERSTATE FAMILY SUPPORT ACT

 

Under the Uniform Interstate Family Support Act, which repealed the Revised Uniform Reciprocal Enforcement of Support Act, in a proceeding to establish, enforce or modify a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if any of the following apply: (1) The individual is personally served with a writ of summons, complaint or other appropriate pleading within this State. (2) The individual submits to the jurisdiction of this State by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction. (3) The individual resided with the child in this State. (4) The individual resided in this State and provided prenatal expenses or support for the child. (5) The child resides in this State as a result of the acts or directives of the individual. (6) The individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse. (7) The individual acknowledged parentage of the child on a form filed with the department under §5103 (relating to acknowledgment and claim of paternity). (8) There is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.  23 Pa.C.S.A. § 7201. Beam v. Reed, 54 Som. 31 (Nov. 8, 1996) (Cascio, J.)

 

Generally, upon entry of a registration order, a party desiring to challenge the order must request a hearing within twenty days of notice of registration.  23 Pa.C.S.A. § 7605.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

The issue of subject matter jurisdiction is not waivable, action or inaction of the parties cannot confer subject matter jurisdiction, and subject matter jurisdiction questions may be raised at any time and by the court sua sponte.  Bernhard v. Bernhard, 447 Pa. Super. 118, 668 A.2d 546 (1995); Heath v. Workers Compensation Appeal Board, 800 A.2d 25 (Pa. 2004).  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.)

 

A state is defined as follows: "State."  A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.  The term includes an Indian tribe and a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this part or under Part VIII, (relating to Uniform Interstate Family Support) or VIII-A (relating to Intrastate Family Support).  23 Pa.C.S.A.§ 7101  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.)

 

Chapter 76 of the Act governs interstate registration and enforcement of support orders.  § 7601 provides that a support order issued by a tribunal of another state may be registered in this State for enforcement.  Before the registration provisions of the Act may be utilized, the proceedings must involve a "state" as defined above.  23 Pa. C.S.A. §§ 7601-7614.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

We have concluded that the issue does not implicate subject matter jurisdiction, and that, therefore, the defendant's Petition For Review must be dismissed as untimely.  In so concluding, we do not reach the issue of whether, if timely objection had been made, a lack of evidence that Quebec is a "state" might otherwise preclude a court from requiring registration of Quebec's support order, or the question of to which party the burden of proof should be assigned.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

Although the traditional definition of subject matter jurisdiction is generally accepted and frequently cited, its applicability to concrete cases is less than clear, and whether or not a particular issue implicates subject matter jurisdiction is frequently difficult to answer.   Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

"Jurisdiction relates solely to the competency of a particular tribunal to determine controversies of the general class to which a specific case presented for consideration belongs."  In re: Appeal of Rolf Larsen, 517 Pa. 457, 812 A.2d 640, 648 (Special Tribunal 2002) (citation omitted).  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

"Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the court through due process of law.  It is the right to adjudicate concerning the subject-matter in a given case...Without such jurisdiction, there is not authority to give judgment and one so entered is without force or effect."  Bernhard v. Bernhard, 447 Pa. Super. 118, 123, 668 A.2d 546, 548-549 (1995) (citations omitted).  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

"[J]urisdiction of the subject matter is conferred by the Commonwealth's Constitution and laws.  We have explained that ‘the test for determining whether a court has jurisdiction of the subject matter is the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs.'  (Emphasis in original).  In other words, we determine whether ‘the court had the power to enter upon inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case.'" Id. Heath v. Workers Compensation Appeal Board, 860 A.2d 25, 29 (Pa. 2004) (citations omitted).  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

"[T]he fact that, in a particular case, a tribunal may not have the power to afford a specific form of relief or to impose a specific sanction does not affect that tribunal's jurisdiction over the general subject matter of the controversy." In re: Appeal of Rolf Larsen, 517 Pa. 457, 812 A.2d 640, 648 (Special Tribunal 2002) (citation omitted).  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.)  The determination of whether Quebec, Canada is a "state" under UIFSA's definition of that term, concerns only whether a court can grant relief, not whether the court can embark on the inquiry into this class of case. Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

However, a court's authority to act pursuant to a statute, although related, is different from its subject matter jurisdiction.  Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.  See, One Restatement (Second) of Judgments § 11, at 108 (1982).  This power of a court to hear and determine (subject matter jurisdiction) is not be confused with the way in which the power may be exercised in order to comply with the terms of a statute (authority to act). [citation omitted].  A court has subject matter jurisdiction to hear petitioner's petition for registration pursuant to UIFSA, and to hear respondent's contest of that registration.  Hacker-Volkening v. Hacker, 143 N.C. App. At 693, 547 S.E.2d at 130-131.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

But just because a court has subject matter jurisdiction over an action does not mean it can exercise judicial powers.  The court must also have competency to proceed.  Competency is not synonymous with subject matter jurisdiction. [citation omitted]. Competency is a narrower concept.  In Re: Marriage of Cepukenas v. Cepulenas, 221 Wis.2d at 166, 169-70, 584 N.W. 2d 227, 228-29 (Wisc. App. 1998).  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

We are aware of Pennsylvania appellate authority which refers to the issue as jurisdictional.  In Simpson v. Sinclair, 788 A.2d 1016 (Pa. Super 2001), the court referred to the challenge to registration as jurisdictional.  Id. At 1019.  However, whether or not the issue implicated subject matter jurisdiction was not at issue, with the court's merely referring to jurisdiction in conclusory terms, without analysis.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

The Courts of Common Pleas in Pennsylvania have jurisdiction to decide controversies of the general class to which this class belongs.  We have jurisdiction to decide issues involving registration of foreign support orders.  However, the question of whether we may exercise that jurisdiction, that is, whether we are able to grant the relief sought, is not jurisdictional, but merely an issue of the court's competence to act within its jurisdiction.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.) 

 

Consequently, we conclude that the defendant's challenge to registration does not implicate subject matter jurisdiction, and since not raised within the required twenty (20) day time period, is waived.  Groomes v. Nadeau, 62 Som. L.J. 208 (2005) (Fike, P.J.)

 

LEGAL FEES AND EXPENSES

 

A spouse may be entitled to receive both alimony pendente lite and attorneys fees in order to maintain or defend divorce proceedings, and, therefore, consideration of a counsel fee claim in equitable distribution proceedings does not automatically bar an award of alimony pendente lite.  Krepelka v. Krepelka, 54 Som. L.J. 241 (May 31, 1996) (Fike, P.J.)

 

MARRIAGE – COMMON LAW MARRIAGE

 

Pennsylvania law recognizes the validity of common law marriage.  23 Pa.C.S. 1103.  Gaede v. Gaede, 53 Som 112 

 

In Pennsylvania, a common law marriage is a marriage by express agreement of the parties without ceremony, and usually without a witness, and verba de prasenti, uttered with the purpose of establishing a relation of husband and wife.  Gaede v. Gaede, 53 Som 112 

 

A common law marriage may still be recognized in Pennsylvania without the use of verba de prasenti, where the intention of the parties as expressed by their words, is that they were married.  Gaede v. Gaede, 53 Som 112 

 

While cohabitation and reputation alone will not suffice to establish a common law marriage, they are relevant factors which a court may consider in determining whether the parties have entered into a common law marriage.  Gaede v. Gaede, 53 Som 112 

 

The location of the verba de prasenti outside Pennsylvania is not per se fatal to the establishment of common law marriage.  Gaede v. Gaede, 53 Som 112 

 

Under Pennsylvania common law, whenever one or both parties enter a matrimonial relationship in good faith, ignorant of an impediment to a valid marriage, continued cohabitation after the impediment has been removed results in a valid common law marriage; distinguishing Covington v. Covington, 421 Pa. Super. 328, 61 A.2d 318 (1992).  Gaede v. Gaede, 53 Som 112 

 

A relationship is meretricious where at the time of establishing the marital bond, both parties know of an impediment which renders one of them incapable of contracting a valid marriage.  Gaede v. Gaede, 53 Som 112 

 

In the case of a meretricious relationship, there must be clear evidence of a change in status to rebut the presumption that the meretricious relationship continued after the impediment to the marriage was removed.  Gaede v. Gaede, 53 Som 112 

 

In the instant case, because both parties believed at the inception of the marital relationship that plaintiff's divorce from her former husband was final, a meretricious relationship was not present.  Gaede v. Gaede, 53 Som 112

 

MARRIAGE SETTLEMENT AGREEMENTS

 

It is established law in this Commonwealth that parties may bind themselves contractually prior to the execution of a written document through mutual manifestations of assent, even where a later formal document is contemplated.  Lewis v. Lewis, 63 Som.L.J. 214 (2006) (Klementik, J.)

 

In reviewing the record in this proceeding, it is clear to the Court that the parties manifested assent to the terms recited and a meeting of the minds was reached.  Therefore, the oral recitation and assent by both parties as to its content bound them contractually to the Agreement in its recited form.  Lewis v. Lewis, 63 Som.L.J. 214 (2006) (Klementik, J.)

 

It is well settled that property settlement agreements between husband and wife will be enforced by the courts in accordance with the same rules of law which are used in determining the validity of contracts generally.  Lewis v. Lewis, 63 Som.L.J. 214 (2006) (Klementik, J.)

 

The Parol Evidence Rule, as applied to contracts, is simply that as a matter of substantive law, a certain act, the act of embodying the complete terms of an agreement in a writing (the “integration”), becomes the contract of the parties.  The point then is, not how the agreement is to be proved, because as a matter of law the writing is the agreement.  Extrinsic evidence is excluded because it cannot serve to prove what the agreement was, this being determined as a matter of law to be the writing itself.  Lewis v. Lewis, 63 Som.L.J. 214 (2006) (Klementik, J.)

 

It cannot be a mutual mistake of the parties if a provision was included in the Agreement and neither party objected to the content at the oral recitation of the terms.  Even if it were determined that there was a mutual mistake or that the Agreement was ambiguous, the court would then look to the practical interpretation and the parties’ actions to ascertain the parties’ intentions.  Lewis v. Lewis, 63 Som.L.J. 214 (2006) (Klementik, J.)

 

MASTER REPORT & RECOMMENDATIONS – EXCEPTIONS

 

Exceptions titled "Insurance" and "Arrears" are too vague and must be dismissed.  Bambling v. Ankeny, 61 Som.L.J. 135 (2003) (Cascio, J.) 

 

Since the income calculation is not mentioned in the exceptions, the argument that the entitlement issue also encompassed the income calculations performed by the Master has not been properly preserved for review and is deemed waived.  Moore v. Moore, 61 Som.L.J. 138 (2003) (Cascio, J.) 

 

The notice of filing of this report shall state the fact of filing, that any party has the right to file within ten (10) days after the mailing of the notice, exceptions (objections) pursuant to Pa.R.C.P. 1920.55-2, that if any exception is filed it will be heard by the court, and if no exception is filed the report will be presented to the court for the granting of a final Decree in divorce (or annulment), and determining equitable distribution and other collateral economic issues, as applicable. Som.R.C.P. 1920.53 (F)(4).   Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.) 

 

Any timely exception to a Master's Report shall be scheduled for disposition by the court pursuant to the scheduling procedures set forth in Somerset County Local Rules of Procedure and applicable Pennsylvania Rules of Civil Procedure.  If no exception is filed, the Prothonotary shall, after the expiration of the ten day period for filing exceptions, present the whole record to the Motions Judge for appropriate disposition.  In such presentation, the Prothonotary shall note in writing for the Motions Judge any irregularities or unusual aspects of the proceedings.  Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.). 

 

It is the date of mailing by the Master to counsel or parties of his report and recommendation and notice that triggers the 10-day period to file exceptions.  Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.). 

 

There is only one situation in which the hearing transcript would be unnecessary: when all of the essential facts are stipulated to or are otherwise undisputed, and the excepting party presents a pure question of law for our consideration. Beyond that specific instance, a transcript is essential to our review of the case. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

The decision whether to open the record to accept additional evidence is left to the sound discretion of the hearing officer. Barring a manifest abuse of discretion, we will not disturb the hearing officer’s determination. Salem v. Salem, 64 Som.L.J. 143 (2009) (Geary, J.).

 

MASTER REPORT & RECOMMENDATIONS – GENERALLY

 

Upon completion of the Master's Report, The Master shall ascertain from the Prothonotary whether the balance of the costs deposit still held is sufficient to pay for the hours expended by the Master, computed at the hourly rate contained in Som.R.C.P. 1920. C and any remaining stenographic and other costs; and : 1. If the balance of costs remaining is sufficient for payment of same, the Master shall file the report with the Prothonotary and proceed in accordance with Subsection F.3 of this Rule. Som.R.C.P. 1920.53 (F)(1).  Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.). 

 

If the balance of costs remaining is not sufficient for payment of same, the Master shall lodge the Master's Report with the Prothonotary, sealed, which shall be available for review by no one other than the Master and the court, and the Master shall immediately send notice to counsel, the parties and the Motions Judge, advising that (i) the report has been lodged with the Prothonotary, (ii) upon payment of costs, the report will be filed officially with the Prothonotary, (Subsections (iii) and (iv) concerning procedures addressing costs have been omitted). 

 

Upon payment of the balance of costs, or upon entry of an order determining payment of costs, under this subsection, the Report shall be considered filed and the Master shall proceed as specified in Subsection F.3 of this Rule.  Som.R.C.P. 1920.53 (F) (2).                               Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.).

 

When the Report is filed or considered filed under Section F.1 or 2 of this Rule, the Master shall (I) give notice of the filing as prescribed by Pa.R.C.P. 1920.55-2 and (ii) file an affadavit of service of said notice.  Som.R.C.P. 1920.53 (F)(3).            Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.).  

 

NAME CHANGES

 

54 Pa.C.S.A.§702(a) sets forth the authority of a court to order a change of name of any person resident in the county.  Rapp, by Lasure v. Boyle, 59 Som.L.J. 450 (2002) (Gibson, J.). 

 

The proper venue of a proceeding for change of name of the child lies in the child's county of residence.  Rapp, by Lasure v. Boyle, 59 Som.L.J. 450 (2002) (Gibson, J.).

 

PATERNITY

 

Generally, a child conceived or born during the marriage is presumed to be the child of the marriage.  This presumption is one of the strongest presumptions of the law of Pennsylvania, and may be overcome by clear and convincing evidence either that the presumptive father had no access to the mother or the presumptive father was physically incapable of procreation at the time of conception.  Ryniak v. Hoffman, 54 Som. L.J. 330 (January 15, 1998) (Cascio, J.)

 

The legal identification of a father, even in a case involving presumption of paternity, may also involve the question of estoppel.  One or both of the parties may be prevented from making a claim based on biological paternity because they have held themselves out or acquiesced in the holding out of a particular person as the father.  Ryniak v. Hoffman, 54 Som. L.J. 330 (January 15, 1998) (Cascio, J.) 

 

The presumption of paternity and the doctrine of estoppel embody two great fictions of the law of paternity: the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of estoppel embodies the fiction that, regardless of biology, in the absence of marriage, the person who has cared for the child is the parent.  Ryniak v. Hoffman, 54 Som. L.J. 330 (January 15, 1998) (Cascio, J.) 

 

The essential legal analysis in paternity cases is twofold: (1) the court must determine if the presumption of paternity applies and, if so, if it has been rebutted.  (2) if the presumption has been rebutted or is inapplicable, the court must determine if estoppel applies.   Ryniak v. Hoffman, 54 Som. L.J. 330 (January 15, 1998) (Cascio, J.) 

 

Paternity by estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity.  If the presumption of paternity has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered.  If the trier of fact finds that one or both of the parties are estopped, then no blood tests will be ordered.  Ryniak v. Hoffman, 54 Som. L.J. 330 (January 15, 1998) (Cascio, J.) 

 

The policy behind the presumption is the preservation of marriages.  Today, separation, divorce, and children born during marriage to third party fathers is relatively common.  Consequently, it is considerably less apparent that application of the presumption is fair in all cases in which the child was conceived or born during the marriage.  Accordingly, consistent with cessante ratione legis cessat et ipsa lex, the presumption of paternity applies in any case where the policies which underlie the presumption would be advanced by its application, and in other cases, does not apply. Ryniak v. Hoffman, 54 Som. L.J. 330 (January 15, 1998) (Cascio, J.) 

 

Acknowledgment of paternity on a Department of Welfare form executed by Plaintiff is ineffective if it does not contain a signed consent by the natural mother.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

The use of an acknowledgment of paternity on a Domestic Relations Section form presupposes the filing of a child support claim by the mother or some other individual or entity entitled to receive child support from the named putative father.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

An acknowledgment or admission is intended for use where an assertion has been made by someone other than the person acknowledging or admitting the fact.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

In discussing the doctrine of estoppel, the Pennsylvania Supreme Court has stated that estoppel in paternity actions is merely the legal determination that because of a person's conduct, that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child's mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

If the parties have never been married, a party cannot rely upon the legal concept of presumption of paternity to establish paternity.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

23 Pa.C.S.A.§5104, the Uniform Act on Blood tests to Determine Paternity, provides a method to establish paternity.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

Paternity must be established prior to filing a custody action in order for a father to have standing as a parent.  Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.). 

 

To permit a putative father to utilize the custody action itself as the legal proceeding within which to litigate the issue of paternity would be inappropriate and unwise judicial policy.   Rosenberger v. Sell, now Ross, 59 Som.L.J. 253 (2001) (Gibson, J.).

 

Plaintiffs must show that the legislature has specifically authorized a cause of action whereby alleged paternal grandparents may bring about a judicial determination of their alleged grandchild’s paternity.  Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

Pennsylvania courts have not previously recognized an independent basis for third parties to seek a judicial determination of paternity.  Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

The doctrine of paternity by estoppel is designed to protect the interests of minors by allowing them to be secure in knowing who their parents are, and the doctrine precludes a party who has acted in a manner that concedes paternity from later challenging paternity in court. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

The doctrine of paternity by estoppel applies only to paternity disputes between a child’s mother and father. Soberdash v. Hicks, 64 Som.L.J. 267 (2009) (Geary, J.).

 

POSTNUPTIAL AGREEMENTS

 

In Pennsylvania, contract principles apply to postnuptial agreements. A postnuptial agreement is enforceable if it is “supported by adequate consideration and if full disclosure of the assets of the parties are disclosed prior to execution, and if there be no fraud, coercion or unlawful purpose in the execution. In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

The parties did not intent to execute an exhibit to the Agreement, which was merely a copy of the Will; the exhibit was included for the purpose of providing Respondent with notice as to the Will’s contents so she could determine whether to enter into the Agreement. In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

A postnuptial agreement is “fully supported by consideration” if it is “signed under seal with the intention of being legally binding on the parties [and] contain[s] the mutual promises of the parties to waive claims in the other’s estate.” In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

The postnuptial agreement in this case is fully supported by consideration like in Estate of Hartman. In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

Although the parties to postnuptial agreements “do not quite deal at arm’s length” they do “stand in a relation of mutual confidence and trust that calls for disclosure of their financial resources.” In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

It is well settled that this disclosure need not be exact, so long as it is “full and fair.” In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

Whether adequate disclosure has been made is dependent upon the facts and circumstances of each individual case. A fact to be considered is whether “an agreement provides that full disclosure has been made[.]” If so, “a presumption of full disclosure arises” that may only be overcome by clear and convincing evidence to the contrary. In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

In light of the fact that Respondent did not proffer any evidence that Decedent’s assets were misstated, the Court is satisfied that the facts and circumstances of this case display that she received full and fair disclosure. In Re Estate of James C. Dinning, 64 Som.L.J. 208 (2009) (Klementik, J.)

 

PROTECTION FROM ABUSE (PFA)

 

A court will not enforce an agreement to waive one's rights under the Protection From Abuse Act (PFAA), 23 P.S.A. § 6101, et seq., in light of public policy and in furtherance of the purpose of the Act.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

The purpose of the Protection From Abuse Act (PFAA), 23 P.S.A. § 6101, et seq., is to provide spouses, household members, intimate partners, children, and other protected persons with immediate temporary protection from abuse.  Therefore, the Act is directly related to public policy concerns related to the need to protect the impairment of family relations.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

An agreement signed during the course of settling a divorce that contains a clause waiving the right to file for protection from abuse is void as against public policy because the right to file for protection from abuse does not pertain to support, alimony, or property rights between the husband and wife, but, rather, is related to the right of the party to defend herself.  Ritchey v. Hoover, 59 Som.L.J. 444 (2002) (Cascio, J.). 

 

PROTECTION FROM ABUSE – COVERED PERSONS

 

The Protection From Abuse Act defines abuse as the occurrence of certain acts between family or household members, sexual or intimate partners, or persons who share biological parenthood. Custer v. Cochran, 63 Som.L.J. 372 (2005) (Fike, S.J).

 

It must be noted that the definition of “family or household members” does not include a requirement that the persons live under the same roof or in the same residence. Custer v. Cochran, 63 Som.L.J. 372 (2005) (Fike, S.J).

 

Although the Protection From Abuse Act is not intended to govern purely business disputes, here the impetus for the abusive conduct was the family relationship between brother and sister, and although the parties do not live together and the abuse occurred at the workplace of the business in which the parties were partners, it was the sibling rivalry which motivated the continuing harassment of the plaintiff by the defendant, and which caused the altercation which prompted the plaintiff to file the instant petition, and granting of relief under the Act was authorized, distinguishing Olivieri v. Olivieri, 678 A.2d 393 (Pa. Super. 1996). Custer v. Cochran, 63 Som.L.J. 372 (2005) (Fike, S.J).