2011 support law update

Support Update 2011
Brian C. Vertz, ESQ, MBA
Pollock Begg Komar Glasser LLC
www.BVSource.com

Warmkessel v. Heffner
17 A.3d 408 (Pa. Super. 2011)
Numerous contempt proceedings
Father failed to appear; bench warrant issued

Warmkessel v. Heffner
21 days in jail before hearing
Sentenced to 3 months in jail, Father sought credit for “time served”
Denial was affirmed on appeal

Brickus v. Dent
5 A.3d 1281 (Pa. Super. 2010)
Father filed Petition for Modification, alleging reduction of his income
Parties voluntarily reduced support pending hearing

Brickus v. Dent
Hearing Officer imputed an earning capacity, which increased Father’s support obligation
Change in guidelines
Father filed exceptions, claiming that court could not increase support as mother did not file a cross-petition

Brickus v. Dent
Trial court reinstated prior order, finding that Father did not mitigate loss
BUT: trial court did not modify the voluntary reduction during proceedings
Father appealed to Superior Court

Brickus v. Dent
Superior Court affirmed the increase, retroactive to filing date
Rule 1910.27(g) vs. (b)
No waiver of retroactivity

Brickus v. Dent
Dissent: Judge Bowes
Would have imposed a requirement to plead grounds for modification with specificity

Childress v. Bogosian
12 A.3d 448 (Pa. Super. 2011)
APL order June 23, 2005
Six year marriage
Wife cohabited with boyfriend, who was her employee

November 2006 – Husband filed modification petition
June 2009 – Master terminated APL as of April 25, 2007 (two years from DOS)
Exceptions

Trial court restored APL for 4 years in diminishing amounts
Husband appealed
Schenk v. Schenk , 880 A.2d 633 (Pa.Super.2005) – entitlement defense

Superior Court: cohabitation is not an automatic entitlement defense
But: cohabitation and short marriage were appropriate grounds for deviation
Contempt affirmed

Trial Court Decisions
KW v. DB, 110 PDDRR 59 (Lycoming Co., March 11, 2010)
Eddins v. Eddins , 110 PDDRR 108 (Lancaster Co., August 16, 2010)
Karch v. Karch , 110 PDDRR 54 (Centre County, 2010)

Support Rules
Rec. 109 – Social Security benefit in equally-shared custody cases
Rec. 110 – Split/divided custody with different percentages
Rec. 111 - Overpayments

Turner v. Rogers
U.S. Supreme Court Docket No. 10-10, June 20, 2011
Does Pennsylvania’s Child Support Contempt Procedure Comply with New Mandates from the U.S. Supreme Court?

Turner v. Rogers
Civil contempt proceedings
Addicted to meth, marijuana; broke back; applied for disability and SSI
Sentenced to one year imprisonment

Turner v. Rogers
Right to court-appointed counsel
14 th Amendment Due Process Clause (not 6 th Amendment right to counsel)
Matthews v. Eldredge, 424 U.S. 319, 335 (1976)

Turner v. Rogers
No right to counsel
(1) the simplicity of judging the defendant’s ability to pay
(2) the risk of assymetry
(3) availability of alternative procedural safeguards

Turner v. Rogers
Exceptions:
Title IV-D cases
Complex cases

Turner v. Rogers
Dissent: Justice Clarence Thomas
No Gideon rights in civil cases
Alternative safeguards first suggested by Attorney General on appeal

Turner v. Rogers
Pennsylvania’s contempt procedures
1910.25 through 1910.25-6
Suggested improvements : emphasis on present ability to pay, better forms

Turner v. Rogers
Barrett v. Barrett , 470 Pa. 253, 368 A.2d 616 (1977)
Sinaiko v. Sinaiko , 664 A.2d 1005 (Pa.Super.1995)
Hyle v. Hyle , 868 A.2d 601 (Pa.Super. 2005)

Turner v. Rogers
Barrett : …the crucial question is not whether he willfully and contemptuously violated the original orders, but whether he had the present ability to comply with the conditions set by the court for purging himself of his contempt.

Turner v. Rogers
Crislip v. Harshman , 365 A.2d 1260 (Pa.Super.1976)
Travitsky v. Travitsky , 534 A.12d 1081 (Pa.Super.1987)
Wetzel v. Suchanek , 541 A.2d 761 (Pa.Super.1988)

The Newest Cases
www.bvsource.com

2011 support law update

by Brian Vertz on Oct 25, 2011

Accessibility

Categories

Tags

Upload Details

Usage Rights

Statistics

2011 support law update — Presentation Transcript