2009 Child Support, Spousal Support and Alimony Pendente Lite

Child Support, Spousal Support and APL Brian C. Vertz ESQ, MBA Pollock Begg Komar Glasser LLC Pittsburgh BVSource.com

Estate of Johnson, 970 A.2d 433 (Pa.Super. 2009)
Post Mortem Child Support
Settlement Agreement
Child Support Ends at Age 18
Agreement Binding on Heirs
Pages 1-3 BVSource.com

Superior Court held:
Agreement did not explicitly terminate child support upon a parent’s death
State law terminating child support could not be inferred in the contract
But Social Security derivative benefit satisfied the obligation
BVSource.com

Practice tips:
Scrutinize boilerplate language
Specify when child support ends and consider life insurance as security
College support provisions must be sufficiently definite
Is post-mortem child support modifiable?
BVSource.com

Murphy v. McDermott, 2009 WL 2365992 (Pa.Super. 2009)
2 years of parochial pre-school
Father paid – reluctantly but voluntarily
Interim support order, incl. tuition
Father refused to pay kindergarten
Final support hearing – too late to object

Gibbons v. Kugle (2006)
Whether child will benefit
Standard of living
Is parochial or private school always better than public?
BVSource.com

Dissent: Judge Fitzgerald
Would create a presumption that public school is good enough unless shown to be manifestly deficient
BVSource.com

Practice tips:
Litigate school choice in custody forum before it arises in support court
Status quo matters
Stock options and capital gains cannot be projected if non-recurring
Employer 401K contributions must be tax-affected
BVSource.com

Fisher v. Com ., 2008 WL 6693399 (Supreme Ct., August 17, 2009)
Appeal dismissed as moot
Dissent: Justices Eakin/McCaffery
Divorce Code definition of “income” should not prevent Dept. of Corrections from invading gift money to collect delinquent child support
Enforcement not restricted to “income”
Page 6 BVSource.com

Krebs v. Krebs (“Krebs II”), 2009 WL 1759726 (Pa.Super. 2009)
Retroactive modification of support was granted in Krebs I due to failure to report increased income
No new job
No promotion
Remanded to calculate arrears, interest and legal fees

$15,000+ in legal fees to collect $72,000 child support
Trial court awarded $5,000
Superior Court granted 100%
BVSource.com

Dissent: Klein
Not agree with overruling the trial court’s factual finding - fees were “excessive”
Remand would merely cause parties to incur more fees
BVSource.com

Practice tips:
Reporting income changes is crucial
Citing torturous history may lead to 100% award of legal fees
BVSource.com

Rich v. Rich, 967 A.2d 400 (Pa.Super. 2009)
Melzer child support
Mother had moderate lifestyle after separation
No budget (or, vague budget)
Mother had no income, so Father was responsible for 100% children’s expenses

Father’s issues on appeal
Wife should be estopped from asserting credit card expenses because she did not present enough evidence
Budget should be cut 25% when eldest of 4 children goes to college
Mother should repay the overpayment faster than $4,000 per month
BVSource.com

Wife’s issues:
Support order < 2% of Father’s income
Mother had received $10,000/month spending money during marriage
Presumptive minimum guideline would be closer to 15% of Father’s income
BVSource.com

Practice tips:
Quantitative evidence may be more persuasive than qualitative evidence
No “per capita” in Melzer cases
Should the lawyer tell a spouse to go on a spending spree upon separation?
BVSource.com

Plunkard v. McConnell, 962 A.2d 1227 (Pa.Super. 2008)
Child Support Arrears
Pre-incarceration arrears
Arrears during incarceration
2006 amendments – Rule 1910.19(f)
Court may suspend obligation and forgive arrearages

R.C. v. J.S., 957 A.2d 759 (Pa.Super. 2008)
Child Admitted to Mental Health Facility
Mother continued to collect child support
Physical custody not required to file a support action
Page 12 BVSource.com

R.W.E. v. A.B.K., 961 A.2d 161 (Pa.Super. 2008)
Mother’s live-in boyfriend was named on birth certificate and supported child
Real father was never informed
Mother got an interim support order against her live-in boyfriend
Father’s paternity was revealed in custody battle between Mother and her live-in boyfriend

R.W.E. v. A.B.K., 961 A.2d 161 (Pa.Super. 2008)
Superior Court held:
Father was not estopped from challenging the birth certificate
Live-in boyfriend could not assert paternity by estoppel as a sword
Interim support order was nullity because it was entered after appeal was filed
BVSource.com

Kozel v. Kozel, No. FD98-00761 (Allegheny Co., June 30, 2008)
10+ years of litigation
Appeals exhausted
Mother filed petition for modification of child support
Mother alleged that her expenses had increased

Trial court dismissed petition for failure to state a claim (demurrer)
Mother requested reconsideration:
“All of Mother’s expenses from prior support proceeding have increased”
BVSource.com

Practice tips:
Petition for modification must give enough detail to prove materiality
Petition for modification so soon after appeals may be viewed as an attempt to re-litigate issues
What about “3 years have passed”?
BVSource.com

Silver v. Pinskey, (2009 WL 2933760, September 15 2009)
Superior Court en banc
Social Security derivative benefits received by children’s father
Equally shared physical custody
BVSource.com

Topics on BV Source .com
Components of Income
Bonuses
Executive Compensation
Double dipping
Melzer issues
BVSource.com

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2009 Child Support, Spousal Support and Alimony Pendente Lite

by Brian Vertz on Oct 22, 2009

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2009 Child Support, Spousal Support and Alimony Pendente Lite — Presentation Transcript