children

For each of the past four years, I have been privileged to teach lawyers about the latest developments in child support as one of the hosts of Family Law Update, a satellite broadcast presentation sponsored by the Pennsyvlania Bar Institute. Since I joined the panel in 2005, several important decisions have influenced the direction of Pennsylvania child support law. Here is my summary of the six most important cases (and one change in the law itself) since 2005:

#6 – Reinert v. Reinert, 926 A.2d 539 (Pa.Super.2007). The Superior Court in this case affirmed the continuing viability of the “nurturing parent doctrine,” a policy in which the courts may excuse the mother of a young child from working to contribute toward the support of the child. Prior to this decision, it was established that a mother may refrain from working even to raise the child of a subsequent relationship. Yet, in Reinert, the Superior Court took the policy to its extreme. The Court terminated the support obligation of a mother who did not have custody of her eldest child when she gave birth to twins by a subsequent relationship and elected to stay at home to raise them.

#5 – Murphy v. McDermott, 2009 WL 2365992 (2009). The question of whether a parent must pay private school tuition may be raised in child support proceedings, but it is also a legal custody issue. The problem is: the legal standards to answer that question are different in support and custody proceedings. The Murphy case demonstrates how important “status quo” can be, compelling a parent to pay tuition even if he or she objected at the time when the child was enrolled in private or parochial school. The lesson: parents must get involved in the choice of schooling before the question of paying comes up.

#4 – Berry v. Berry, 2006 Pa.Super. 98 (2006). When child support becomes an issue between divorcing parents, the courts must decide whether certain income sources – such as pensions, rental properties and businesses – should be considered as marital property or income for support purposes. Generally, they cannot be both. In Berry, the Superior Court held that severance pay would be counted as marital property if acquired before separation or income if acquired after separation.

#3 – Estate of Johnson, 970 A.2d 433 (Pa.Super.2009). While this decision might be limited to its unique factual circumstances, the Superior Court certainly affected settlement practice by holding the estate of a deceased parent responsible for the payment of child support. The deceased parent had entered into a marital settlement agreement with his ex-wife, promising to pay child support until the youngest child was 18 years of age. The agreement did not specify whether the obligation would terminate upon the death of a parent, so the court held that it did not. The estate ended up owing nothing, however, because the Social Security derivative benefits received by the child as a result of the parent’s death satisfied the child support obligation. This case has prompted many lawyers to specify death as cause for terminating child support in their agreements, and has also motivated support recipients to demand life insurance as a security device.

#2 – Krebs v. Krebs, 944 A.2d 487 (Pa.Super.2008). The Superior Court fortified its prior admonitions warning support payors to report increases in their income. In cases where a payor fails to report an increase, even an increase not precipitated by a job promotion or change in employers, the court may increase child support retroactively to the date when the income increase occurred, even years later. The Superior Court in Krebs granted such a retroactive increase in child support even after the custodial parent

#1 – The 2010 Amendments to the Pennsylvania Child Support Guidelines. The 2010 amendments eliminated the Melzer formula, which was a budget-based method of calculating child support in high-income cases. The uppermost limits of the child support guidelines have been extended to $30,000 per month combined net income, and an income-based formula has been promulgated to calculate child support in high-income cases.

Parents who are paying or receiving child support under the Melzer formula for high-income cases (where the parents’ combined net incomes is over $20,000 per month) should contact their lawyers immediately. The new Pennsylvania child support guidelines (which eliminated the Melzer formula, effective May 1, 2010) will almost certainly result in a child support decrease for most of those high-income cases. Rather than considering the custodial parent’s household budget to determine the proper amount of child support, the new guidelines are income-based at all income levels. The child support guidelines chart has been extended upward to $30,000 per month combined net income. For cases where the parents’ combined income is greater than $30,000 per month, the new guidelines start with a base amount and adds a percentage of the parents’ combined income over $30,000 per month.

So, if nothing but the guidelines have changed, can a parent file a petition for modification? Yes, probably. A new Guideline amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances.  Pa.R.C.P. 1910.19(a).

Parents whose combined net income is less than $20,000 per month might have grounds for modification if the amount of child support under the new guidelines is materially different from the current support order. At some income levels, the amount of child support has increased. At other income levels, it has decreased. Parents are urged to contact their lawyers to find out whether they are entitled to modification.

For months now we have been telling our clients that a change in the child support guidelines was imminent. On January 12, 2010, our predictions were realized: the Pennsylvania Supreme Court Domestic Relations Rules Committee enacated new child support guidelines, effective May 12, 2010.

The amount of child support was revised at all income levels. Some child support guidelines increased while others decreased. The most significant change in the guidelines was the elimination of the Melzer formula, applicable only to high-income cases.

Prior to the 2010 guideline revision, high-income cases were treated differently than ordinary cases. In cases where the parents’ combined net income exceeded $20,000 per month, the chart of child support figures did not apply. Instead, parents were required to submit budgets of their monthly expenditures for the children, which were allocated between them in proportion to their available net income after paying their own living expenses. This budget-based formula for determining child support in high-income cases was totally different from the income-driven formula for ordinary cases. That distinction has been eliminated in the 2010 revisions.

The child support guidelines have been extended upward to $30,000 per month combined net income. They were formerly limited to $20,000 per month combined net income. As mentioned above, the amount of child support has been revised at all income levels, sometimes upward, sometimes downward.

The amended Rules also overruled the Isralsky decision, which held that the mortgage subsidy under Rule 1910.16-6(e) might apply in cases where a custodial parent lived in the former marital residence after the divorce.

Further details will be posted in this space. Come back soon!

The winter holidays can be fun and relaxing, but at times they can also be stressful or disappointing. The downside of the holiday season is a special challenge for families who are experiencing divorce or separation. Here are a few tips to cope with the holiday season:

1. Keep your expectations realistic. People who are separated or divorced may have limited budgets for gifts, extravagant meals, or elaborate holiday decorations. Plan for a smaller, more intimate celebration with your most trusted friends and family – which can be even more meaningful than blowout parties and expensive gifts.

2.  Consider charitable endeavors. Thanksgiving is a great opportunity to donate time or supplies to food banks, homeless shelters, and charitable organizations. The satisfaction that you will receive from giving to others will make it a memorable holiday season for those who receive and those who give.

3. Don’t turn away help from others. Sometimes we deny our our needs because we don’t want to impose on others. But when friends and family extend holiday invitations or ask if we need help, it may be a good time to renew our bonds with those friends or family members. Let others help you when they can.

4. Keep a positive attitude with the kids. A holiday divided between two parents can be stressful for kids. Don’t compound their stress by saying anything bad about the other parent. Even veiled comments are easily perceived by children. Instead, focus on the positive: perhaps two turkey dinners, or seeing both extended families. Kids will appreciate your good humor and feel much better about themselves and their family.

A series of articles published last month in Working Mother magazine claims that men who seek custody of their children in contested divorces are winning just as often as women. This trend is attributed to the principle that parents who work harder to provide for the family have less time and ability to perform traditional parenting tasks. As more women devote themselves to their careers, the article suggests, they may have less time to perform parenting duties.

The thought-provoking article has been cited in the New York Times and Family Law Prof Blog.

The Superior Court of Pennsylvania will be publishing my successful result in Mackay v. Mackay (2009), a case in which a parent attempted to enforce a casual conversation about college plans for their young children as a “verbal agreement” to pay college expenses. The Superior Court held that their conversation was merely an expression of plans or intentions, rather than an enforceable verbal contract.

The incident from which the dispute arose was a dinner conversation held between the parents when their children were pre-teens. The mother declared that she would like to retire after 30 years of service to her employer, and the father admonished her that both parents would have to continue working to pay for college expenses. Many years later, the parties divorced. In the divorce action, the mother testified about the dinner conversation but did not attempt to assert a contract claim in connection with the divorce. When the eldest child graduated from high school, the father pursued a reduction of his child support obligation, and the mother counter-claimed for enforcement of the alleged oral agreement.

The Superior Court examined the record exhaustively and concluded that a discussion of future plans for college did not constitute a verbal contract between the parents. The Court accepted my argument that the parents did not have an intention when they conversed to enter into a legally-binding agreement. This decision recognized and honored the difference between verbal contracts versus plans made by harmonious married couples, which are not understood or intended to have legal consequences after divorce.

192 WDA 2009

I have added a new page to my site with links to the official Pennsylvania child support calculator, published by the Pennsylvania Automated Child Support Enforcement System (PACSES). PACSES is the name of the statewide computer system used by the Pennsylvania courts to calculate child support.

The official PACSES child support calculator is labeled as an “estimator”, and for good reason. The PACSES calculator can perform a basic child support calculation for parents who have earned wages from employment and do not itemize their tax deductions, but it becomes less accurate if the parents have other forms of income or tax deductions. Use the PACSES calculator only as an estimate of the amount you might have to pay or receive. Only an experienced divorce lawyer can provide a more accurate calculation of child support.

Each year I am one of the broadcast presenters for Family Law Update, one of the most-watched legal education courses for the Pennsylvania Bar Institute. We make live presentations in Philadelphia and Pittsburgh, followed by a satellite broadcast to nearly two dozen counties around Pennsylvania. Traditionally, I have presented the most recent cases involving child support, spousal support and alimony pendente lite.

The Pittsburgh live presentation will be given tomorrow (October 23, 2009), with the satellite broadcast to be given on November 18, 2009. The book is available on PBI’s website, and I publish my Powerpoint slides here.

Update: I have added a page to this site with my Powerpoint slides.

The Superior Court of Pennsylvania granted reargument en banc to the litigants in Silver v. Pinskey (2009), to consider whether Pennsylvania’s child support law might be pre-empted by the federal Social Security Act, precluding the trial court from ordering the parents to share the children’s derivative benefits. In this case, the mother initially had primary custody of two teenaged children following the parents’ separation. The mother was initially designated as the representative payee of the children’s Social Security benefits derived from their father’s retirement. Later, father won equally shared custody and was designated as the representative payee. The trial court ordered father to share half of the children’s Social Security derivative benefits with mother, noting that the Pennsylvania guidelines do not address the situation where an obligor is receiving such benefits. The Superior Court initially vacated the trial court’s order, prompting Father to request reargument, which was granted.

On reargument, Father argued that the Pennsylvania courts lacked subject matter jurisdiction to order him to share the Social Security derivative benefits with mother. He also argued that the trial court misapplied the criteria for granting a deviation from the support guidelines due to “other household income.” The Superior Court en banc held that it was not deprived of jurisdiction, as it had not altered the designation of the benefit payee. The Court also held that the Social Security benefit could be properly considered as grounds for a deviation from the child support guidelines. Yet, the Court held that the trial court had erred by ordering father to share the Social Security benefit while setting child support at $0. The Superior Court regarded this result, however well-intentioned, as “bordering” on violation of federal law. Consequently, the Court remanded to reconsider the child support guidelines.

Several other issues raised by Father were dismissed by the Superior Court. Specifically, Father argued that the trial court had no authority to order him to pay his proportionate share of medical insurance provided by the mother’s spouse or extracurricular activities including gymastics, softball, baseball, basketball, summer camp, and piano lessons. The Superior Court saw no merit in these arguments.

This week I reviewed a recent decision by one of our Allegheny County judges, regarding modification of child support. Kozel v. Kozel, No. FD98-00761 (Allegheny Co., June 30, 2008).

After a decade of litigation following a four year marriage, the Supreme Court of Pennsylvania denied Wife’s petition for allowance of appeal seeking a review of the child support award and alimony pendente lite, as well as equitable distribution of marital property. Five months later, Mother filed a Petition for Modification of Child Support, alleging “the children’s monthly expenses have increased.” Father moved to dismiss the petition, arguing that it was not legally sufficient to state a claim warranting a hearing. The trial court agreed and dismissed the Petition for Modification. Mother filed a Petition for Reconsideration, alleging “the children’s monthly expenses have increased, including all expenses listed on Mother’s budget from the last support proceeding.” Mother attached the budget from the previous support proceeding without modification. The trial court denied reconsideration.

In her Opinion, Judge Kathryn Hens-Greco cited Rule 1910.19, which requires petitioners to “specifically aver the material and substantial change in circumstances upon which the petition is based.” Mother argued that the pleading rules do not require parties to present their evidence before trial and allow discovery to build a claim based upon information and belief.

In this author’s opinion, the decision reflects a reasonable concern on the part of the trial judge that she could not measure the materiality of the alleged change in circumstances. As she noted, many of the expenses on Mother’s budget were disallowed in the prior proceedings. If the increase in Mother’s expenses were solely or primarily due to the disallowed expenses, then perhaps no modification would be warranted and the petition might be viewed as an attempt to relitigate the appeals. Perhaps Mother’s request for modification would have been permitted had she alleged increases in the expenses that were not disallowed. On the other hand, how much should petitioners be required to plead? Will factfinders restrict petitioners to the specific grounds they plead?