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Family Law Update 2006 Brian C. Vertz, Esq. Pollock Begg Komar Glasser LLC
A married couple in their early 60s was celebrating their 35th wedding anniversary in a quiet, romantic little restaurant....
Oh, I want to travel around the world with my darling husband. The husband thought for a moment:  The fairy waved her magi...
"Well, this is all very romantic, but an opportunity like this will never come again. I'm sorry my love, but my wish ...
The wife, and the fairy, were deeply disappointed, but a wish is a wish.
So the fairy waved her magic wand and - poof! –  the husband became 92 years old.  The moral of this story:  Men who are u...
Child Support, Spousal Support and Alimony Pendente Lite <ul><li>Income Issues </li></ul><ul><li>Support Guidelines and De...
What is “Income”? <ul><li>42 Pa.C.S.  § 4302 and Rule 1910.16-2 More than “taxable income” </li></ul><ul><li>Gift Income –...
Gift Income <ul><li>Jacobs v. Jacobs , 884 A.2d 301(Pa.Super.2006) </li></ul><ul><li>FACTS: Husband’s uncle deposited mone...
Gift Income  (cont.) “I have never hated a man enough to give his diamonds back” -Zsa Zsa Gabor <ul><li>ISSUES:  </li></ul...
Gift Income   (cont.) <ul><li>Look at where the semi-colons are placed..... </li></ul><ul><li>“ Income.”  Includes compens...
Double Dipping <ul><li>Berry v. Berry , 898 A.2d 1100 (Pa.Super.2006) </li></ul><ul><li>FACTS: When he was terminated from...
Double Dipping <ul><li>ISSUES:  </li></ul><ul><li>- Double dipping undermines equitable distribution </li></ul><ul><li>- W...
Double Dipping – Severance pay is income only if it is not a marital asset?  Majority Rule – Compensation for past service...
Earning Capacity <ul><li>Baehr v. Baehr , 889 A.2d 1240 (Pa.Super.2005) </li></ul><ul><li>FACTS: When he was laid off from...
“ Above the line” deductions <ul><li>Chapman-Rolle v. Rolle , 893 A.2d 770 (Pa.Super.2006) </li></ul><ul><li>FACTS: The tr...
“ Above the line” deductions <ul><li>ISSUES: -  Compare to  Berry : </li></ul><ul><li>“ In determining monthly gross incom...
Changes to the Guidelines <ul><li>Chart extended to $20,000 per month </li></ul><ul><li>Decrease in child support above $6...
Changes to the Guidelines <ul><li>Shared Custody – formula revised to calculate APL </li></ul><ul><li>Child care expenses ...
Deviation from the Guidelines <ul><li>Standard of living -  Nischal </li></ul><ul><li>Child Support for Noncustodial Paren...
Compared to factory workers in India, you are gettin’ way too much child support! <ul><li>FACTS: Father immigrated to the ...
Guidelines Deviations <ul><li>ISSUES: - Why shouldn’t the court consider cost of living when the average person in India e...
Saunders  – Son of  Colonna? <ul><li>FACTS: Mother earned over $300,000 per year and had custody of 3 children. Father ear...
Son of  Colonna <ul><li>ISSUE:  - If the kids are living a “My Sweet Sixteen” lifestyle at Mom’s house, should they have t...
Deviation for Special Needs <ul><li>Howland v. Howland , 900 A.2d 922 (Pa.Super.2006) </li></ul><ul><li>FACTS: Mother enro...
Melzer  Analysis Chapman-Rolle v. Rolle , 893 A.2d 770 (Pa.Super.2006) “ In  Melzer v. Witsberger,  505 Pa. 462, 480 A.2d ...
Melzer  Analysis <ul><li>“ Finally, the court is to calculate each parent's total support obligation in accordance with th...
Melzer  Mysteries <ul><li>Ashton –  Melzer  is “one of the mysteries of family law” </li></ul><ul><li>Melzer  Formula: do ...
Other Issues <ul><li>Chen  – Third Party Beneficiaries </li></ul><ul><li>McClain and Hyle  – Purge Conditions </li></ul><u...
Third Party Beneficiaries <ul><li>Chen v. Chen , 586 Pa. 297, 893 A.2d 87 (2006) </li></ul><ul><li>FACTS: Mother and Fathe...
Third Party Beneficiaries <ul><li>HELD: Child lacks standing to enforce child support provisions of a marital settlement a...
Purge Conditions <ul><li>McClain v. McClain , 872 A.2d 856 (Pa.Supr.2005) </li></ul><ul><li>FACTS: Upon a finding of civil...
Purge Conditions <ul><li>There is a difference between civil contempt and ICC </li></ul><ul><li>Even in a civil contempt c...
Entitlement Defense <ul><li>Schenk v. Schenk , 880 A.2d 633 (Pa.Super.2005) </li></ul><ul><li>FACTS: Parties were married ...
Entitlement Defense <ul><li>FACTS: </li></ul><ul><li>- Master’s hearing in 2002 </li></ul><ul><li>- Final order in January...
Entitlement Defense <ul><li>ISSUES: </li></ul><ul><li>Did the Superior Court create an entitlement defense to APL? </li></...
One for the Guys <ul><li>Some of you may remember my ex-wife. She had started taking flying lessons around the time our di...
One for the Guys <ul><li>Yesterday afternoon, she narrowly escaped injury in the aircraft she was piloting when she was fo...
One for the Guys <ul><li>The absence of a post-crash fire was likely due to insufficient fuel on board. No one on the grou...
One for the Guys
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Family Law Update Support 2006

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Presented by Brian Vertz, Esq., MBA, AVA at Pennsylvania Bar Institute Family Law Update in October 2006. Describes current issues and case law in child support, spousal support, and alimony pendente lite.

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  • Transcript of "Family Law Update Support 2006"

    1. 1. Family Law Update 2006 Brian C. Vertz, Esq. Pollock Begg Komar Glasser LLC
    2. 2. A married couple in their early 60s was celebrating their 35th wedding anniversary in a quiet, romantic little restaurant. Suddenly, a tiny yet beautiful fairy appeared on their table saying: &quot;For being such an exemplary married couple and for being loving to each other for all this time, I will grant you each a wish.&quot;
    3. 3. Oh, I want to travel around the world with my darling husband. The husband thought for a moment: The fairy waved her magic wand and - poof! – two tickets for the Queen Mary II appeared in her hands.
    4. 4. &quot;Well, this is all very romantic, but an opportunity like this will never come again. I'm sorry my love, but my wish is to have a wife 30 years younger than me.&quot;
    5. 5. The wife, and the fairy, were deeply disappointed, but a wish is a wish.
    6. 6. So the fairy waved her magic wand and - poof! – the husband became 92 years old. The moral of this story: Men who are ungrateful bastards should remember fairies are female.
    7. 7. Child Support, Spousal Support and Alimony Pendente Lite <ul><li>Income Issues </li></ul><ul><li>Support Guidelines and Deviation </li></ul><ul><li>Melzer Issues </li></ul><ul><li>Other Issues </li></ul>
    8. 8. What is “Income”? <ul><li>42 Pa.C.S. § 4302 and Rule 1910.16-2 More than “taxable income” </li></ul><ul><li>Gift Income – Jacobs </li></ul><ul><li>Double dipping – Berry </li></ul><ul><li>Earning Capacity - Baehr </li></ul><ul><li>“ Above the line” deductions – Chapman-Rolle </li></ul>
    9. 9. Gift Income <ul><li>Jacobs v. Jacobs , 884 A.2d 301(Pa.Super.2006) </li></ul><ul><li>FACTS: Husband’s uncle deposited money into joint bank accounts, named Husband in his will, designated Husband as the beneficiary of his life insurance, and placed businesses in joint names (value $7 million). </li></ul><ul><li>HELD: Gifts were not income for support purposes but were properly considered as grounds for a deviation from the support guidelines. </li></ul>
    10. 10. Gift Income (cont.) “I have never hated a man enough to give his diamonds back” -Zsa Zsa Gabor <ul><li>ISSUES: </li></ul><ul><li>- Is income statutorily limited to “compensation for services”? </li></ul><ul><li>Humphreys v. DeRoss , 567 Pa. 614, 790 A.2d 281 (2002) </li></ul><ul><li>- Why is a man worth $7 million paying guideline child support? </li></ul>
    11. 11. Gift Income (cont.) <ul><li>Look at where the semi-colons are placed..... </li></ul><ul><li>“ Income.” 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 life insurance and endowment contracts ; all forms of retirement ; pensions ; 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 awards, 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. </li></ul>
    12. 12. Double Dipping <ul><li>Berry v. Berry , 898 A.2d 1100 (Pa.Super.2006) </li></ul><ul><li>FACTS: When he was terminated from employment as a partner at KPMG, Father received severance pay and a refund of his partnership capital account. </li></ul><ul><li>HELD: Capital account was marital property and could not be counted also as income for child support purposes. </li></ul>
    13. 13. Double Dipping <ul><li>ISSUES: </li></ul><ul><li>- Double dipping undermines equitable distribution </li></ul><ul><li>- What if this were a post-divorce case or the parents were never married? Would the capital account distribution constitute income? </li></ul><ul><li>- Are undistributed partnership earnings in a capital account protected under Fennell ? </li></ul>
    14. 14. Double Dipping – Severance pay is income only if it is not a marital asset? Majority Rule – Compensation for past service is marital property. Compensation to replace future earnings is separate property (and therefore income). Formula based on length of service does not necessarily mean that severance pay is deferred compensation. Severance Pay
    15. 15. Earning Capacity <ul><li>Baehr v. Baehr , 889 A.2d 1240 (Pa.Super.2005) </li></ul><ul><li>FACTS: When he was laid off from his job earning $60K, Father began to work for his brother for $35K per year. </li></ul><ul><li>HELD: Court has discretion to assign an earning capacity which is greater than an obligor’s actual earnings even if obligor was involuntarily laid off from prior job. </li></ul>
    16. 16. “ Above the line” deductions <ul><li>Chapman-Rolle v. Rolle , 893 A.2d 770 (Pa.Super.2006) </li></ul><ul><li>FACTS: The trial court did not deduct Mother’s malpractice insurance premiums, continuing education expenses, and medical association dues from her gross revenues when calculating her income. </li></ul><ul><li>HELD: Because Wife included those items as budgetary expenses in her Melzer budget, the trial court did not err by failing to deduct them from her income. </li></ul>
    17. 17. “ Above the line” deductions <ul><li>ISSUES: - Compare to Berry : </li></ul><ul><li>“ In determining monthly gross income for support purposes, Rule 1910.16-2(a)(2) provides that income includes ‘net income from business····’ [citation omitted] “The use of the word ‘net’ in the rule specifically implies that there are acceptable business deductions. For instance, provided with the appropriate itemizations, unreimbursed business expenses, when used to increase income, may be deductible from gross income, although it must be proven on a case-by-case basis . </li></ul>
    18. 18. Changes to the Guidelines <ul><li>Chart extended to $20,000 per month </li></ul><ul><li>Decrease in child support above $6,000 level – from 5% to 30% </li></ul><ul><li>Rule 1910.19(a) – “A new guidelines amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances.” </li></ul>
    19. 19. Changes to the Guidelines <ul><li>Shared Custody – formula revised to calculate APL </li></ul><ul><li>Child care expenses incurred by either parent are allocated </li></ul><ul><li>Diament overruled (except where APL recipient owes child support) </li></ul>
    20. 20. Deviation from the Guidelines <ul><li>Standard of living - Nischal </li></ul><ul><li>Child Support for Noncustodial Parents - Saunders </li></ul><ul><li>Special Needs - Howland </li></ul>
    21. 21. Compared to factory workers in India, you are gettin’ way too much child support! <ul><li>FACTS: Father immigrated to the U.S. from India, where his wife remained. When the parties separated, Father was ordered to pay child support in accordance with the Pennsylvania support guidelines. </li></ul><ul><li>HELD: No deviation based on Father’s complaint that the child support would make Mother and child “millionaires” in their native country. Nischal v. Nischal , 879 A.2d 813 (Pa.Super.2006). </li></ul>
    22. 22. Guidelines Deviations <ul><li>ISSUES: - Why shouldn’t the court consider cost of living when the average person in India earns $250-300 per month? </li></ul><ul><li>- Guidelines assume that similarly situated parties will have the same needs and expenses, but are residents of a foreign country “similarly situated”? </li></ul><ul><li>- Goal of Guidelines is to ensure that children receive the same proportion of family income as if the parents had remained together. </li></ul>
    23. 23. Saunders – Son of Colonna? <ul><li>FACTS: Mother earned over $300,000 per year and had custody of 3 children. Father earned $67,000 per year and had partial custody. </li></ul><ul><li>HELD: Husband’s financial circumstances did not warrant an award of child support in addition to APL, particularly where he was not making a diligent effort to find a job after a layoff. </li></ul>
    24. 24. Son of Colonna <ul><li>ISSUE: - If the kids are living a “My Sweet Sixteen” lifestyle at Mom’s house, should they have to eat soup at Dad’s? </li></ul>
    25. 25. Deviation for Special Needs <ul><li>Howland v. Howland , 900 A.2d 922 (Pa.Super.2006) </li></ul><ul><li>FACTS: Mother enrolled defiant teenage sons in out-of-state boarding schools to correct their destructive behavior. Trial court ordered father to pay 71% of the expense. Husband’s share was over $11,000 of his $13,000 monthly income. </li></ul><ul><li>HELD: The boarding school expense was not a reasonable need where Mother failed to investigate less expensive local programs. </li></ul>
    26. 26. Melzer Analysis Chapman-Rolle v. Rolle , 893 A.2d 770 (Pa.Super.2006) “ In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), our Supreme Court held “the hearing court must first calculate the reasonable expenses of raising the children involved, based upon the particular circumstances-the needs, the custom, and the financial status-of the parties.” Melzer, at 471, 480 A.2d at 995. “ Once the reasonable needs of the children have been determined, Melzer sets forth a formula to calculate each parent's support obligation.” Mascaro v. Mascaro, 569 Pa. 255, 259, 803 A.2d 1186, 1189 (2002). Specifically, the court must determine the amount of each parent's income which remains after the deduction of the parent's reasonable living expenses. Melzer, at 472, 480 A.2d at 996.
    27. 27. Melzer Analysis <ul><li>“ Finally, the court is to calculate each parent's total support obligation in accordance with the following formula: </li></ul><ul><li>Mother's total support obligation = Mother's income available for support / (Mother's income available for support + Father's income available for support) X Child(ren)'s needs </li></ul><ul><li>Father's total support obligation = Father's income available for support / (Mother's income available for support + Father's income available for support) X Child(ren)'s needs </li></ul>
    28. 28. Melzer Mysteries <ul><li>Ashton – Melzer is “one of the mysteries of family law” </li></ul><ul><li>Melzer Formula: do we allocate the kids’ budget in proportion to the parents’ respective net incomes, or their “leftovers”? Is there an incentive to overspend? </li></ul><ul><li>What if the combined net incomes are $20,100? </li></ul><ul><li>What if one parent’s earning capacity tips the parties over into Melzer world? </li></ul><ul><li>Shared custody: do we combine the kids’ budgets in both households? </li></ul>
    29. 29. Other Issues <ul><li>Chen – Third Party Beneficiaries </li></ul><ul><li>McClain and Hyle – Purge Conditions </li></ul><ul><li>Schenk – Entitlement Defense to APL? </li></ul>
    30. 30. Third Party Beneficiaries <ul><li>Chen v. Chen , 586 Pa. 297, 893 A.2d 87 (2006) </li></ul><ul><li>FACTS: Mother and Father executed a child support agreement containing a clause to allow modification if Father’s income would increase. Mother never sought an increase. When the child turned 18 and the child support terminated, Mother sued for a retroactive increase. The 18 year old child intervened as a third party beneficiary to the contract. Trial court allowed the child to intervene and entered an order of retroactive arrears against the Father. </li></ul>
    31. 31. Third Party Beneficiaries <ul><li>HELD: Child lacks standing to enforce child support provisions of a marital settlement agreement. Child is not an “intended” third party beneficiary. </li></ul><ul><li>Intended and Incidental beneficiaries (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. (2) An incidental beneficiary is a beneficiary who is not an intended beneficiary. </li></ul>
    32. 32. Purge Conditions <ul><li>McClain v. McClain , 872 A.2d 856 (Pa.Supr.2005) </li></ul><ul><li>FACTS: Upon a finding of civil contempt, trial court jailed the contemnor and set 3 purge conditions: (1) apply for tax refund; (2) get a job and (3) post a $25K bond. </li></ul><ul><li>HELD: The purge conditions were impermissible because the contemnor did not have the present ability to comply with them, and the “get a job” condition could be fulfilled only in the future. </li></ul>
    33. 33. Purge Conditions <ul><li>There is a difference between civil contempt and ICC </li></ul><ul><li>Even in a civil contempt case, where incarceration is used, trial court must ensure “beyond reasonable doubt” that the contemnor has the present ability to meet purge conditions. </li></ul><ul><li>Even work release was not enough to create the “present ability” to comply with the condition to get a job. </li></ul><ul><li>Hyle, 868 A.2d 601 (Pa.Super.2005) </li></ul>
    34. 34. Entitlement Defense <ul><li>Schenk v. Schenk , 880 A.2d 633 (Pa.Super.2005) </li></ul><ul><li>FACTS: Parties were married from 1996 to 1999 </li></ul><ul><li>- Husband filed divorce in March 2000 </li></ul><ul><li>- Wife filed counterclaim for APL in September 2000 </li></ul><ul><li>- Wife moved in with boyfriend in May 2001 </li></ul><ul><li>- Awarded APL from September 2000 – May 2001 </li></ul><ul><li>- Wife sought reinstatement of APL in January 2002 after moving out of her boyfriend’s home </li></ul><ul><li>- APL was reinstated </li></ul>
    35. 35. Entitlement Defense <ul><li>FACTS: </li></ul><ul><li>- Master’s hearing in 2002 </li></ul><ul><li>- Final order in January 2003 – Wife is awarded 1/3 of the marital estate but denied alimony because she had received APL for nearly 3 years after a 3 year marriage </li></ul><ul><li>- Wife appealed the final order and the 2001 APL order which had terminated her APL when she lived with her boyfriend </li></ul><ul><li>HELD: The 2001 APL order was affirmed. </li></ul>
    36. 36. Entitlement Defense <ul><li>ISSUES: </li></ul><ul><li>Did the Superior Court create an entitlement defense to APL? </li></ul><ul><li>In Miller v. Miller , 508 A.2d 550 (Pa.Super. 1998), the Superior Court found that there was not sufficient evidence of cohabitation. </li></ul><ul><li>Miller held that §507 (now §3706) does not apply to APL </li></ul>
    37. 37. One for the Guys <ul><li>Some of you may remember my ex-wife. She had started taking flying lessons around the time our divorce started. She got her license shortly before our divorce was final, later that same year. </li></ul>
    38. 38. One for the Guys <ul><li>Yesterday afternoon, she narrowly escaped injury in the aircraft she was piloting when she was forced to make an emergency landing in Southern Tennessee because of bad weather. </li></ul><ul><li>Some could call it a crash; an accident at the least. Our kids were with me at the Beach House when we heard the news. </li></ul>
    39. 39. One for the Guys <ul><li>The absence of a post-crash fire was likely due to insufficient fuel on board. No one on the ground was injured. </li></ul><ul><li>Photographs taken at the crash scene show the extent of damage to her aircraft. She was very lucky. </li></ul>
    40. 40. One for the Guys
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