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.

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?

In Krebs v. Krebs (“Krebs II”), 2009 WL 1759726 (Pa.Super. 2009), the Superior Court of Pennsylvania considered whether to award legal fees to a parent who won modification of child support from the other parent, who had concealed increases in his income. This recent decision arose from an earlier case (Krebs v. Krebs (“Krebs I”), 944 A.2d 487 (Pa.Super. 2008)), in which the Court granted retroactive modification for a period prior to the filing of a modification petition due to the payer’s misrepresentation.

Krebs II was a divided decision. The majority ordered Father to reimburse 100% of Mother’s legal fees, or $15,408, to recover $72,603 in child support. The Court remarked about the extensive legal research; drafting of stipulations, briefs and concise statements; court appearances; and negotiations conducted by the Mother’s legal counsel as a direct result of the Father’s fraudulent concealment of his income increases.

A dissenting opinion filed by Judge Klein, however, may have the effect of limiting the majority’s ruling to its facts. Judge Klein wrote that he would have remanded for a more careful examination of the Mother’s legal fees, noting that the trial court found them to be excessive.

A recent decision issued by Florida’s intermediate appellate court, Craissati v. Craissati, amply demonstrates the importance of good contract writing skill. The husband and wife in this case entered into a marital settlement agreement, in which the husband agreed to pay alimony for eight years. Like most alimony agreements, this agreement provided that the alimony would terminate upon the death of the recipient, her remarriage, or cohabitation for a period of three months or more.

The wife in this case was incarcerated after a DUI conviction, and the husband petitioned the court for termination of his contractual alimony obligation. The parties stipulated that wife was, technically, “cohabiting” with her cell mate for a period in excess of three months, and that the termination clause of the marital settlement agreement was unambiguous. Still, the trial court held, the termination of alimony due to incarceration would be an absurd result not within the contemplation of the parties. The trial court modified the amount of alimony (since wife’s needs had been temporarily curtailed) but refused to terminate the obligation.

On appeal, the Florida appellate court reversed, adopting a literal construction of the agreement. Adding insult to injury, the author of the opinion found that driving under the influence was a voluntary act known to possibly result in incarceration, so the wife should have known that her criminal behavior could result in the termination of alimony.

If only the prisons were less crowded, the wife could have maintained her alimony award, I guess.