PHILADELPHIA DIVORCE AND FAMILY LAW BLOG

Petrelli Law Launches Flash Divorce Website

2011-11-02T14:12:00.000-04:00

The cost of divorce has gone up, that’s why Petrelli Law has launched Flash Divorce, a one-stop cheap alternative for filing an uncontested divorce.

Flash Divorce offers quick and cheap online divorce, helping Pennsylvania divorcees save thousands of dollars and hundreds of hours.
Experience Coupled With DIY
Flash Divorce offers an easy to use online divorce kit that costs only $199 for Pennsylvania area residents. Once you determine that your divorce is uncontested, you can fill out the online divorce form and start your divorce process. Simply answer the questions in our kit. If you qualify for an online divorce, our attorneys will review the paperwork to guarantee that there are no errors. Many individuals filing for divorce without the help of attorney document review find that they run into troubles after filing even if they made simple technical errors. Our attorneys work to avoid courthouse troubles when filing an uncontested divorce. Don’t qualify for an online divorce because of property disputes, alimony disagreements or squabbles about child support? Not a problem, our experienced divorce attorneys can walk you through the traditional divorce process.

Even if issues arise after you have filed your online divorce, our team of experienced divorce lawyers can step in and help you resolve common divorce disputes, such as fights over property, alimony or child support.

Fast and Professional ServiceOur experienced divorce lawyers at Petrelli Law have filed hundreds of divorces in Pennsylvania. This experience allows our attorneys to move both quickly and effectively. Once you fill out our Flash Divorce documents, our attorneys will review the documents within 24 hours. If there are errors or oversights, our divorce attorneys will let you know immediately.

Get A Divorce In A FlashIn a hurry? Flash Divorce forms are easy to use and can be completed in less than an hour.

Facebook and Infidelity

2010-06-22T08:58:00.001-04:00

Recently, we hear more and more about the issues that Facebook--the social networking tool it seems everyone is using--causes for marriages new and old. Unfortunately, reconnecting with old friends and flames can often escalate into something damaging at home.

One way to prevent Facebook use is to give your spouse your Facebook username and password information. If you wouldn't want your spouse to see it, don't do it.

Another preventative measure is to avoid reaching out to contacts with whom you have had relationships in the past. Why open doors to old, messy situations?

If you need help working through infidelity and would like to learn about your options, contact the divorce lawyers at Petrelli Law, PC for a consultation at (215) 523-6900.

Al and Tipper--Unusual or a new trend?

2010-06-07T08:50:00.002-04:00

Many of us were surprised to learn of the recent divorce announcement issued by Al and Tipper Gore, who were married over forty years. Unlike several other politicians who have separated from spouses over the past few years, Al and Tipper were not plagued by a sex scandal. We read that they simply grew apart.

Reports have shown that marriages of the 1970's have a higher divorce rate than those of later decades--a result of the very young marrying age. Later-in-life divorces are becoming more common. Today, people are living longer, staying youthful into their 70s and 80s, and feel that they would like a new start.

If you are in a longterm marriage and would like to discuss your options, call divorce attorney Thomas J. Petrelli, Jr. at Petrelli Law, P.C. for a consultation (215) 523-6900.

Facebook Causing New Problems in Marriage

2010-05-24T09:21:00.001-04:00

Today, it seems that everyone has a Facebook account--the young and old, single and married, students and professionals. Facebook does wonderful things in that it can reconnect friends and keep family members updated with photos and birthdays.

Unfortunately, not all users utilize Facebook positively. Facebook has the ability to give us direct access to feelings and relationships of the past--that, before this technology, would have been forgotten forever. Facebook has the ability to serve as the beginning of an extramarital affair, and is one of the many pieces of technology that can present challenges in marriage.

If you are seeking a separation or divorce, call the divorce lawyers at Petrelli Law for a consultation at 215.523.6900.

The Forgotten Alternative to Divorce Litigation

2010-05-17T13:13:00.003-04:00

Oftentimes, when couples divorce, they immediately turn to divorce attorneys and plan to litigate without contemplating alternatives, such as divorce mediation. Many couples today choose to mediate their divorce for several reasons.

Mediation allows couples to come to divorce agreements that are, oftentimes, more beneficial to both parties than the outcome of a court hearing would be. family mediation can also lessen legal costs and positively open lines of communication. Trained mediators, such as Petrelli Law, P.C., always make sure that one spouse does not exert any power over the other, and that every mediation session is fair. To learn more about divorce mediation, schedule a contact with Petrelli Law, P.C. at 215-523-6900 today.

Marriage Later in Life

2010-05-03T15:51:00.001-04:00

Recently, we learned of the pending separation of Larry King and his wife, Shawn Southwick. In 1997, when the couple married, King insisted that they wed without a prenuptial agreement confident that this marriage would last.

Many couples who marry later in life, whether first marriages ended in divorce or the passing of a spouse, assume that age and maturity mean the marriage will last forever and fail to consider the importance of a prenup.

Older couples often have more on the line than those going through it the first time around. Men and women are preparing for retirement, have more assets, and need to protect themselves and often, their children.

I explain prenups to clients as insurance policies on marriages. Many people will not need to use them, but insuring your marriage, as you do your home and your health, is the responsible thing to do.

Call Petrelli Law, P.C. for more information on prenuptial agreements if marriage is in your near future. 215.523.6900.

10 Tips to Successful Co-parenting

2010-04-06T16:07:00.003-04:00

Inevitably, it can be difficult to co-parent following divorce. It is important to remember that you need to stay focused on the best interests of your children, and not yourself. Do not let the anger at your ex-spouse become your primary focus. Here are some rules parents can follow in order to successfully co-parent with their former spouse.

1. Cooperate with your former spouse. Children whose parents can communicate productively and civilly have fewer problems dealing with divorce.

2. Communicate openly about parenting time. Let the other parent know when you will be late on pick-ups or drop offs—honesty and communication makes a great difference.

3. Facilitate parenting time with your child’s other parent. Encourage your children to spend time with each parent, and be loyal to each parent. More information from child custody lawyers at Petrelli Law.

4. Treat your former spouse as you would a business colleague. Follow through on commitments in a responsible and mature fashion, as you would in a business relationship.

5. Every child needs time alone with each parent.

6. Be honest with your children.

7. Do everything you can to keep your child from feeling emotionally involved in the conflict. Do not ask prying questions about the other parent, or ask your child to act as a messenger.

8. Teach your children how to communicate their feelings of stress about being caught in the middle. Teach your children that it is OK to tell either parent that they feel uncomfortable talking about the other.

9. Find a good support network for yourself. Talk with friends or see a counselor to avoid depending on your child to support you through your divorce.

10. When you start dating, be careful about making your new partner a part of the family too soon. Wait until you are sure that the relationship will be long term before introducing new partners to your children.

If you are in the midst of a divorce and need legal advice, contact Petrelli Law at (215) 523-6900 for a consultation about your situation.

Divorced Parents and Relocation

2010-03-25T07:55:00.007-04:00

Assisting Philadelphia clients with child custody and joint custody

Geographical relocation of the custodial parent following separation or divorce is becoming increasingly prevalent in our mobile society. Unless you and your ex agree to a relocation plan, permission for a move, and the terms of a move, the move may become a matter for the courts to decide. Try to make the best parenting plan possible to minimize the risks of serious harm to your child by being separated from one parent.

If your ex is moving away with the children, there are some technological tools that will help you to foster a close relationship from far away. Photo sharing online can keep you and your child up to date on the events in each other’s lives. Artwork, term papers and videos can be saved as digital files and shared over the internet as well. Skype can be used for free video calls with a web cam.

If you are or your ex-spouse is considering a move, contact the Philadelphia Custody Lawyers at
Petrelli Law, P.C. for assistance with your making your relocation case, or opposing your ex’s request to relocate.

Child Support Obligations After 50—a Forgotten Reality

2010-03-12T08:27:00.005-05:00

For most, the Golden Years are the time to start winding down and reduce hours at the office, travel, or buy a second home. Divorces over age 50 are on the rise, reflecting the longer duration of marriages and the trend toward later marriages, which started in the 1970s. One of the biggest concerns for those who divorce over the age of 50 is what support obligations may result from the divorce.

Child support obligations for minor children are becoming more common for both men and women over 50. Men are more commonly entering into second marriages, resulting in child support obligations. Women are delaying childbearing, and therefore may have support obligations over the age of 50. Here are some facts about child support for those 50 and over:

Social Security

· Social Security disability or retirement benefits payable to a parent is considered income for purposes of child support.

· Social security disability or retirement benefits, payable to a minor for a parent’s disability or retirement, are considered income to that parent. The parent can usually get a dollar-for-dollar credit against his or her child support obligation for benefits the child receives on that person’s account.

Pensions

· Pension payouts are considered income for the purposes of calculating child support.

· Voluntary contributions to pensions are not deducted from income when calculating support, instead they are treated as income.

· Interest earned on 401(k) and IRA can be considered income.

Retirement

· Courts typically don’t like it when parents retire before the normal retirement age of 65 if they have minor children who are counting on them for support. Don’t plan on quitting your job or retiring to avoid child support.

· Try to reach an agreement with your spouse as to when you can retire and then change your child support obligation upon your retirement to reflect a reduced income due to retirement.

Stepchildren

· Once parents are divorced, a stepparent does not have an obligation to support a stepchild. However, if you want to contribute to a stepchild’s support, do so by reaching a financial agreement with your spouse.

Special Needs Children

· Parents have a duty to provide child support for their children until the children reach majority, and in some states, through college.

· Children who are disabled and unable to support themselves are entitled to support from their parents as an “adult disabled child” in most states.

· Adult disabled children are entitled to Social Security benefits of their own, as well as Supplemental Security Income benefits. These benefits can reduce the amount of support a parent is obligated to provide.

Security for the Obligation Courts can order a parent to maintain a life insurance policy with a child as beneficiary as security for a child support obligation.

If you are in a situation involving support and need legal advice, call Petrelli Law, P.C. for assistance at (215) 399-4130.

The importance of personal time during divorce

2010-03-03T20:47:00.001-05:00

During the separation and divorce process, it can be very easy to forget the importance of mental health. No matter how long the divorce takes, the emotional consequences are difficult for most. I advise my clients to try to spend some personal time each week doing something they enjoy. In addition to accepting the support of friends and family, it may also make sense for those going through a divorce to speak with a professional counselor.

To discuss the divorce process, or with questions, contact Petrelli Law at 215.399.4130.

SPLITTING UP NEST EGGS: Battles over retirement assets increasingly are the most contentious—and error-filled—part of divorce

2010-02-23T11:13:00.009-05:00

Below is an article that I liked that was published in The Wall Street Journal and written by Glenn Ruffenach. I found this article to be interesting and thought that it would be useful to my clients following my blog.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information regarding divorce effects on retirement assets and QDROs.

SPLITTING UP NEST EGGS

Tax Season is Never Easy--Especially While Separating

2010-02-18T11:44:00.002-05:00

No one looks forward to delving into last year’s financials to tackle the annual meeting with the family accountant. This is exponentially harder when you need to collaborate with an estranged spouse. My advice to couples who must do so is to come prepared. If both parties work outside the home, bring all necessary paperwork such as W-2s and 1099s to your meeting. Assign the task of mortgage paperwork to one spouse, and arrange a brief call with your spouse prior to the meeting with your CPA to create a checklist of all necessary items. The process can be over quickly and easily with attention to detail and preparation.

For assistance with tax season and other financial issues while separating, call Petrelli Law, P.C. at 215.523.6900.

Second-hand Smoke equals Child Abuse?

2010-02-11T17:19:00.004-05:00

In today’s world, cigarette smoking is becoming a trend of the past. Our society is aware of the health risks associated with tobacco. It would seem crazy to most to expose a child to the dangers of cigarettes—especially if that child was not old enough to voice their discomfort caused by second-hand smoke.

If you are separated or divorced, and your former spouse is exposing your children to second-hand smoke, call Petrelli Law, P.C. at 215.399.4130 to see how we can help.

Important Step to Take Before Tying the Knot

2009-12-10T13:20:00.005-05:00

While encompassed by soon-to-be-wedded bliss, many couples fail to realize the impact finances will have on their future together. These days more than ever, individuals are letting their credit score slip below the red line. Once two people legally merge, their financial history will creep to the surface of the marriage to potentially wreak havoc in the relationship.

One important premarital step that many couples overlook is a prenuptial agreement. Though it may not be as romantic a process as choosing wedding flowers, it will have an eternal bearing in your relationship and may prove to lower levels of stress in the marriage. With a prenuptial agreement, couples can rest assured that even if financial woe brings about cessation of the partnership, it does not have to destroy the financial bearing of an individual who may not be responsible for premarital liabilities of the other spouse.

If you are interested in finding out more about how a prenuptial agreement can benefit your relationship, please do not hesitate to contact our office at (215) 523-6900.

Calculating Child Support Not Always Easy

2009-12-10T13:18:00.007-05:00

Philly.com recently reported that Philadelphia Sixers star Andre Iguodala is being sued for child support. Clayanna Warthen, a South Jersey native, allegedly gave birth to his daughter on May 7, 2009. She reportedly seeks $12,000-$15,000 a month in temporary support. Iguodala wishes to provide for his daughter; however, he feels that the amount requested is “beyond reasonable”. The article reports that he recently signed a six-year contract worth a reported $80 million. He also owns over $4 million worth of real estate in the Philadelphia area.

Warthen reportedly feels justified requesting this large amount of money because of Iguodala’s high income and her inability to attend school during the time that she is caring for their infant daughter.

If you find yourself in a similar situation regarding child support, please contact Petrelli Law, P.C. at (215) 523-6900 for more information regarding your rights.

Prenuptial Agreements Aren't Just For Golfers

2009-12-10T12:43:00.004-05:00

According to a nydailynews.com article, professional golfer Tiger Woods revised his prenuptial agreement with wife Elin Nordegren after allegations of infidelity recently surfaced. He reportedly offered her $5 million for her to stay in the marital home with their two children. He offered her an additional $55 million if she stays for an additional two years. If she agrees to stay for seven years, she will receive $80 million.

Whether or not you have money like Tiger Woods, prenuptial agreements can be useful for protecting a spouse on either side of a situation like this.

If you find yourself in a similar situation, please call Petrelli Law, P.C. for more information regarding your legal rights.

Who gets to keep the pet when a relationship goes sour?

2009-09-25T15:41:00.003-04:00

This issue of the custody of pets has been a growing area of law in recent years. A 2006 survey by the American Academy of Matrimonial Lawyers showed a large increase in the amount of pet custody cases.

A recent case hit the spotlight in New Jersey where a couple whose relationship ended led to a heated legal dispute over a brown pug named Dexter. After nearly three years of litigation, the judge ordered that custody of Dexter be shared by both parties. The dog will rotate between the parties every five weeks. This decision was handed almost a year after an appeals panel reversed the judge's first decision. On appeal, the argument was made that the “subjective value” of Dexter the dog was not given consideration. Although a decision was again rendered on September 21, 2009, one of the parties reportedly stated that he may consider yet another appeal.

Other cases related to pet custody have also hit the spotlight over the last few years. Unlike cases involving children, courts have yet to create the standard of the ‘best interest of the pet,” even though such factors are often considered when ruling which party will be awared custody over the pet. For example, in a 2005 pet custody case, the parties agreed to split custody over Moxxy, the Australian cattle dog. The custody arrangement was based on the dog’s personality and factors considered included the stress the dog would endure if he was separated from one party, as the pet was attached to both owners.

The issue of pet custody is not taken lightly, and some custody lawyers are even recommending a pet prenuptial agreement. Pet owners often become greatly attached to their pets, and most couples fail to discuss the ramifications with regard to the pet if the relationship ends. Relying on goodwill pet custody agreements often does not work when a couple decides to call it quits. Proactively determining who will get the pet in the event of a split-up or divorce may avoid the high-costs and emotional trauma of litigation.

If you find yourself in a similar situation, please contact Petrelli Law, P.C. at (215) 523-6900 for more information regarding your rights.

The New Era of Military Parental Rights

2009-09-25T15:39:00.003-04:00

Petrelli Law works members of the military to work through military divorce and custody cases.

Returning from combat overseas is often a difficult transition, but when coupled with being denied visits with your own baby, the experience can be even more traumatic. Upon returning from the battlefield of Iraq, a soldier-mother was disturbed to find that she was denied visits with her year-old daughter by her former companion because he claimed that extended visits for more than just a few hours at a time would be disruptive for the baby, and was concerned that such abrupt change would be frightening and confusing.

However, this arrangement contradicted the family care plan that was previously agreed upon, which outlined that the parents would share custody. The dispute landed the parties in court where each party is currently seeking full custody of the child.
Custody disputes are not uncommon when soldiers return from active duty. With an increase in the number of women serving in the military, situations like this are becoming more common.

If you are in a similar situation, please contact Petrelli Law, P.C. at (215) 523-6900 for more information regarding your rights

Is being the primary caretaker always enough to keep primary custody?

2009-09-25T15:35:00.002-04:00

The quality of time spent with ones child is a motivating factor for Pennsylvania courts when determining which parents should be awarded primary physical custody. According to a recent Superior Court case, Gianvito v. Gianvito, (2009 PA Super 1008), the Primary Caretaker doctrine emphasizes the quality and quantity of time spent with the child rather than simply the daily care of the child. What does this mean for the current case law? It is now inaccurate to assume that the primary caretaker of the child will always prevail in a custody case and the Primary Caretaker doctrine will not always yield in a parent retaining primary custody over the child. This is not to ignore that considerable weight is still given to parent as caretaker. Rather, one should be aware that this will not guarantee a parent will retain physical custody as a result of the hearing.

In the recent Gianvito case, the non-custodial parent (father) succeeded in obtaining primary physical custody even though it was established by the court that the custodial parent (the mother) was a fit and loving parent to the child. Apparently, in this case, the negative attributes of one parent were not reinforced or used against the other parent. There was no issue regarding the suitability or love of either parent, and yet, significant custodial change was rendered by the court. Motivating the Court was the child’s interest and the prevailing party’s act in making the child the most important aspect of his life. For example, the Court placed significant emphasis on such factors as the father changing his work schedule to spend more time with his child and be more readily available, his purchasing a home close to the child, and his efforts to take an active role in the child’s daily activities.

The mother’s attributes were also recognized and were not belittled by the Court. However, the Court found that the father made greater efforts to make the child a primary aspect of his life, thereby giving him primary, physical custody. The child was made a priority by the father, despite the fact that it made his life more inconvenient and that he had to make significant changes. In a nutshell, the quality of time the father spent with the child prevailed over the quantity of time the mother spent with the child. The lesson that can be derived from this case is that providing the basic necessities for a child is not always enough to maintain primary, physical custody. A parent’s sacrifice and struggle made for the sake of spending more time with the child can be pivotal to a court's opinion when analyzing the Primary Caretaker Doctrine.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Case Law Development: Mental Health Records In Custody Actions

2009-06-12T13:43:00.002-04:00

Pennsylvania courts have recently been forced to examine the rights of parties in a custody dispute to mental health records in Gates v. Gates, 2009 Pa.Super. 40 (2009). Privacy of mental health records is an ongoing battle between the scope of discovery, or the right to have copies of relevant records in a case turned over to the opposing party, and the right to have privileged health records kept private.

Gates involved a father who sought to have the mother’s mental health records used to support his argument for modification of the existing custody arrangement. Pennsylvania’s Superior Court ruled against the father and stated that, while trial courts have the statutory authority to order that a parent submit to a mental health evaluation, this authority does not extend to the ability to order the production of existing mental health records. Even though the court noted that these records were not encompassed in the limitation of physician/patient privilege, they found that the information was protected under the state Mental Health Procedures Act. As such, the court ruled that trial courts could not compel the production of these documents, and, further, that there are better ways to go about determining a mother’s suitability as a custodial parent without breaching her guarantee of confidentiality by intruding into her protected mental health records.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Recent Shifts in New Jersey Palimony Law

2009-02-24T12:52:00.002-05:00

Many of you may be familiar with alimony, which arranges for payment from one spouse to the other after the dissolution of a marriage for support and maintenance of the kind which the spouse had become accustomed to. Palimony is similar, but it applies to non-marital relationships. It’s a relatively new concept popularized after Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).

In New Jersey, the ruling in Devaney v. L'Esperance, 195 N.J. Super. 247 (App. Div. 2008) held that the couple did not have to live together in order for there to be proof of a marital-type relationship. This made an already fact intensive and complicated process open to a much larger field of litigation, potentially opening up the floodgates to a much larger group of people.

As reported in the New Jersey Law Journal on February 10th, the N.J. Senate Judiciary Committee has decided to significantly narrow the number of qualifying cases by amending N.J.S.A. 25: 1-5, which required prenuptial agreements to be signed, by also requiring that all palimony agreements be written and signed by the party charged. This legislation will help reduce court costs and make for less litigation time in a process that can be messy to sort through.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Case Brief: Yates v. Yates

2009-02-14T12:10:00.003-05:00

Issues: (1) Whether the trial court had the authority to appointing a parenting coordinator and was it an improper delegation of judicial authority to do so; (2) whether the trial court erred in granting shared legal custody due to the tumultuous relationship between the parents ; and (3) whether the trial court failed to define the precise terms of the parties’ agreement or detail the times and locations of the custody exchanges in an adequate manner.

Ruling: (1) The trial court’s appointing of a parenting coordinator was in the best interest of the child and was a reasonable exercise of judicial discretion; (2) there was a minimal degree of cooperation between the parents which was enough to support shared legal custody; and (3) the trial court’s incorporation of unidentified terms creates an unnecessary uncertainty.

History: Custody proceedings for the child had begun in 2002. Four years later, in late 2006, after successive hearings and settlement conferences, the parents had finally arrived upon some basic terms for physical custody and agreed that final custody terms would be needed. The lower court asked for proposals from both parties and a hearing on February 2, 2007 was arranged so that both parents could present their proposals before a final custody order was entered.

Appellant [Father] claimed that the level of cooperation between the parents was not enough for shared legal custody. Appellee [Mother] reinforced the reasons for her disagreement with the father and brought to the court’s attention the idea of having a parenting coordinator to help settle minor parenting disputes. On Feb. 15, 2007 the court decided to award the father primary physical custody and the mother partial physical custody, it gave the parameters of the custody schedule, and appointed a parenting coordinator to the parties to assist with the custody arrangement.

Father appealed saying that the trial court erred in (1) holding that he had agreed to sharing legal custody, (2) finding that he consented to the appointment of a parenting coordinator, and (3) concluding that he waived appellate review of the court’s decision to appoint a parenting coordinator. Trial court a 1925(a) opinion saying that that father had previously agreed to abide by the trial court’s custody order.

Superior Court rejected the trial court’s reasoning and concluded that father did not waive his right to challenge the trial court’s decision and remanded, asking for “more sufficient factual findings and conclusions of the law.” On March 7, 2008 trial court issued a 1925 opinion. Father appealed.

Analysis: The Superior court found that the trial court’s appointing of the parent coordinator was a reasonable exercise of judicial discretion and in the best interest of the child. The court found that a parent coordinator was a novel idea that was best applied with high conflict parents who have had long-term issues. The court pointed to the father’s testimony in the February 2, 2007 custody hearing in which he consented, inter alia, to allowing the court to decide whether or not to employ a parenting coordinator. The court held the father’s argument that the parenting coordinator was improperly delegating judicial authority was incorrect because the core decisions were made by the court while the minor details were left to the discretion of the coordinator. The court also pointed out that any party could still appeal any decision made by the coordinator if they were dissatisfied. The father also raised an issue with the fact that the court’s expert envisioned a mental health professional being the parenting coordinator but the court appointed an attorney. The court found that focal point of the recommendation was that the coordinator be experienced with high conflict cases and dealt strongly with the parents. The court found that the attorney was able to fit both criteria.

The father’s challenge to the trial court’s decision of shared custody focused primarily on the parties involved not being able to communicate even on a basic level. The court looked at the parents’ ability to resolve the most contentious issue of physical custody through negotiation and compromise. The court cited Brown v. Eastburn, 351 Pa.Super. 479, 506A.2d 449, 450(Pa.Super.1986) to say that when both parents show their willingness to compromise for the sake of their children, that could be used to qualify as a minimal level of cooperation, regardless of whether they spoke directly or not.

The court agreed with the father’s claim which said that the trial court erred procedurally by failing to specify the specific terms of the agreement. The Superior Court found that there were several issues on the record in which there was ambiguity. It was unclear whether the parties agreed to a few different terms. The Superior Court thought that the incorporation of these terms created an unnecessary uncertainty. The order was affirmed in part, vacated in part, and remanded.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Case Brief: Lawson v. Lawson

2009-02-01T12:03:00.003-05:00

940 A2ed 444 (Pa.Super.2007)
Issues: (1) Whether Appellant (Husband) should be required to pay any indefinite order of alimony for a sort duration marriage; (2) whether the availability of public funds eliminate Husband’s obligation toward Appellee (Wife); and (3) whether the failure to take exceptions to the master’s initial recommendation precludes Wife from filing exceptions to the master’s supplemental recommendation.

Ruling: (1) The trial court properly considered all 17 factors of 23 Pa.C.S.A. § 3701(b) and alimony was appropriate because of Wife’s severe disability and Husband’s ability to pay; (2) the availability of public funds does not eliminate an obligor’s alimony order; and (3) Wife was not precluded from filing timely exceptions to the master’s supplemental recommendation as the supplemental order revised and amended the original order at Husband’s request. Trial court affirmed.

Facts: Parties were married for four (4) years. Wife had a high school education and Husband was a CPA. Approximately one year after Wife filed for divorce, she suffered a stroke that rendered her totally disabled. After a bifurcated divorce decree was entered, the master recommended that Husband pay Wife $500 per month in alimony for an indefinite period of time and continue to provide medical coverage until Wife was eligible for Medicaid or Medicare. Father took exceptions to the recommended order based on his assertion that the master erred in awarding alimony and continuing medical coverage. Before the trial court rendered its decision, Wife’s condition deteriorated and she was admitted to a skilled nursing facility. The facility provided her with medical insurance.

The trial court remanded the case to supplement the evidentiary record. The master’s supplemental recommendation found that Wife had become eligible for Medicaid and the Department of Public Welfare would assume any shortfall in coverage. Based on these finding the master recommended that the trial court terminate Husband’s alimony and insurance obligation. Wife filed exceptions to the supplemental recommendation. The trial court reversed the supplemental recommendation and ordered Husband to pay $550 per month and provide Wife gap medical insurance. Husband appealed.

Analysis: The Superior Court found that the trial court did not abuse its discretion by awarding alimony and medical coverage to Wife. The Court reasoned that although the marriage was of a short duration, Wife was totally disabled and completely incapable of supporting or caring for herself. Husband was capable of providing financial support. Therefore alimony and gap insurance coverage were properly awarded. The Court found Husband’s argument that the alimony order was a “millstone around husband’s neck” unconvincing and lacking evidentiary and legal support.

The Court was not convinced by Husbands assertion that the trial court abused its discretion by rejecting the master’s supplemental recommendation. The Court found that it was contrary to public policy to shift the burden of Husband’s alimony obligation to the taxpayer. The Courts emphatic rejection Husband’s argument, it surmised that with a slight extension, Husband’s rationale could lend support to an argument to deny alimony anytime public assistance was available and concluded that this was not the Legislature’s intent when formulating the Divorce Code.

Finally, The Court did not agree with Husband’s contention that Pennsylvania Rule of Civil Procedure 1920.55-2(b), that dictates issues not covered by exceptions are deemed waived, barred Wife from taking exceptions to the master’s supplementary recommendations. The Court reasoned that the supplemental report was based on new evidence and a change in circumstances. Further, the matter was remanded without hearing, at Husbands request, due to the change in circumstances. The Court held that Wife was not barred from filing exceptions based on these circumstances.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Case Brief: Conroy v. Rosenwald

2009-02-01T12:00:00.004-05:00

940 A.2d 409 (Pa.Super.2007)
Issue: (1) Whether the trial court abused its discretion by denying Appellant (Father) from asserting the defense of paternity by estoppel; and (2) did the court abuse its discretion by ordering that mother was estopped from claiming that Appellant is the legal father from date of an admission of paternity.

Ruling: The Superior Court found that the trial court properly applied the doctrine of paternity by estoppel under the circumstances of this case. Father was ordered to pay support retroactive to the date mother filed her petition. Order affirmed.

Facts: Mother became pregnant with the child during a time period when she was having sexual relations with Michael Guinan the putitive father by estoppel. The parties all believed that Father was sterile and Father was married to his former wife during the relevant times. After Mother discovered she was pregnant, she moved into the home that Guinan had recently purchased but they did not marry. Guinan was listed on the birth certificate. After two or three years, Guinan and Mother broke up. Guinan continued to pay for Mother’s house. Subsequently, Guinan denied paternity and was allegedly excluded as the biological father by a private DNA test (he did not testify at the heraring).

Appellee then filed an action for child support against Father. Father asserted estoppel as a defense to the support action and was summarily denied. At the hearing, the court ordered Father to undergo immediate and involuntary DNA testing, which established his paternity of the child. Following the paternity test, Father filed a petition for reconsideration, arguing the results of the paternity test should be sealed pending his right to a paternity by estoppel hearing. After the trial court denied Father's petition, Father filed an appeal, which the Court dismissed for failure to file a brief. The Court later denied Father's subsequent application to reinstate the appeal. Following a "paternity" hearing on May 25, 2004, the trial court entered an interim order of child support. On September 16, 2005, the interim support order was made a final order. Father appealed. The Court vacated the child support order and remanded the case for a paternity by estoppel hearing.

At the remand hearing, the trial court adjudicated Father’s defense that Mother was estopped from claiming anyone other than Guinan was the child’s father. The trial court found that Father knew or should have known that he was the father of the child. The lower court based its findings on evidence that Father testified that he thought he might be the child’s father when the child was about 3 years old. This was due to the child’s eye color and a resemblance to Father’s oldest son. The lower court held that Father knew or should have known that the child was his due to these revelations. Father appealed this determination, the admission of the DNA test and the partial estoppel.

Analysis: In the instant matter, the Court evaluated the totality of the circumstances, the pre-test conduct of the parties, and the testimony presented. The Court noted that generally, estoppel in paternity issues is aimed at achieving fairness as between the parents by holding both mother and father to their prior conduct regarding paternity of the child. Additionally, it is not the duration of the conduct but rather the nature of the conduct and the effect on the father and child and their relationship that is the proper focus of the analysis. The Court acknowledged that the child already knows Father is her biological father. The Court found that Father’s post-test affirmations of his relationship with the child supported the trial court’s rationale. Guinan left years ago and, purportedly, had no contact with the child for about 8 years. The Court also noted that there was no intact marriage or family unit to protect in this case and therefore the presumption did not apply. Additionally, under these circumstances the public policy of attempting to prevent trauma to the child does not apply. Further, there were mutual mistakes of facts regarding Father’s ability to conceive the child. Accordingly, the Court did not find fraud by either Mother or Father.

The Court also made note that the lower court's opinion twice makes clear its decision regarding estoppel was not predicated on the DNA test results. Although the trial court knew the results, the Court presumed the lower court disregarded this information. The Court found the trial court’s rationale appropriate and affirmed its order that Appellant to pay child support for the child from the date of the filing of the child support petition.

As an issue of first impression, the Court decided that the trial court’s order that mother was estopped from claim based on Father’s paternity prior to Father’s admission that he suspected the child may be his. The Court held that the factors that led to the finding of Father’s admission of paternity allowed the court to estop Father from denying paternity from that point forward.

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Case Brief: Glover v. Severino

2009-02-01T11:55:00.003-05:00

A.2d 2008 WL 802313, 2008 Pa.Super. (March 27, 2008).
Issue: Whether the trial court abused its discretion by applying the doctrine of paternity by estoppel after Mother failed to disclose that another man could be the biological father of her child.

Ruling: The Superior Court held that Mother's failure to disclose that another man could be the biological father of the child was fraudulent and precluded the application of the doctrine of paternity by estoppel. Reversed and remanded.

Facts: Appellant (Servino) and Appellee (Mother) had a brief sexual relationship in college. Shortly thereafter Mother informed Servino pregnant. Servino visited the child in the hospital and signed the birth certificate as the child’s Father. Shortly after the child was born, Mother rekindled her relationship with a man she was dating prior to her relationship with Servino and they later married. Shortly after she stopped seeing Servino, Mother filed for support. Servino signed an acknowledgment of paternity and a support award was entered. After the Servino left collage he had infrequent contact with the child. Servino paid court ordered child support until 2006.

In 2006, Servino participated in a private paternity test that excluded him as the child’s father. He then demanded a hearing on paternity for the first time in 2007 and the court ordered test also excluded him. A hearing on paternity by estoppel occurred on April 20, 2007, and the court ruled that, despite the results of the tests, Servino was estopped from denying paternity. The trial court reasoned that fraud did not exist because the Mother sincerely believed that Servino was the father and therefore lacked the requisite intent to deceive. The trial court further reasoned that the public policy goal of paternity by estoppel also mitigated in favor of estoppel because Servino’s support payments, seeking custody rights and infrequent contact created a bond with the child.

Analysis: The Superior Court reasoned that the Mother knew that she had relations with other men at the same time she conceived the child and she failed to disclose that fact to the Servino. She therefore “held all of the cards” and her omission satisfied the requisite intent to deceive. The Court relied on the rationale that “misrepresentation need not be an actual statement; it can be manifest in the form of silence or failure to disclose relevant informant when good faith requires disclosure.” In re Adoption of R.J.S., 889 A.2d 92, 98 (Pa.Super.2005) . The Court concluded that trial court's rationale allowed Appellee to continue in her fraud by omission, both to Appellant and now to the lower court, and affirming their decision would reward her for it. Additionally, the decision would also allow Appellant to suffer continued harm as a result, which is in direct contravention of the policies of fraud and estoppel. The Superior Court determined that Servino’s actions in support of the child were induced not by his own choice but by Mother's failure to be forthcoming about the true probabilities of his paternity.

As the dissent points out, the fact that sets this case apart from recent decisions that the Court relies on is that Servino knew that mother was seeing other men romantically and had suspected from day one that he may not be the father. This leads to a possible argument that a mother has an affirmative duty when seeking support to inform the putative father of any relationships concurrent to the time of conception.

The Court goes on to address in dicta the flaws it found in the trial court’s reasoning on the public policy issue, ostensibly for the benefit of future application. The Court did not agree that Servino’s sporadic contact with the child had established a bond between them. The Court pointed to the facts that the child called mothers ex-husband “Dad” and the fact that mother had to reintroduce Servino to the child after he did not have any contact with the child for a period of years. Therefore, the Court reasoned, the policy argument that the child would experience trauma due to a lack of stability in a child’s perceived family was not applicable in this instance.

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Case Briefs: Kotzbauer v. Kotzbauer

2009-02-01T11:10:00.004-05:00

937 A.2d 487 (Pa.Super 2007)
Issue: Whether the trial court erred in determining there was insufficient evidence to sustain a finding for the emancipation of a nineteen-year-old girl that has a medical condition that allegedly prevents her from obtaining profitable employment at a supporting wage.

Ruling: The Superior Court held that evidence was sufficient to support finding that daughter had medical condition that prevented her from obtaining profitable employment at a supporting wage so as to require father to continue to pay child support, and evidence was insufficient to establish that daughter was emancipated so father was required to pay child support.

Facts: Mother requested support for the parties' daughter Kaitlin Kotzbauer, beyond the normal age for emancipation. When Kaitlin was in high school, she was diagnosed with epilepsy. In February 2004, she underwent brain surgery for the seizures she was suffering. Prior to her surgery, she was a normal, active teenager with no learning disabilities or memory problems. Following this surgery, she began to have problems with her memory and ability to focus. She needed more sleep, and was tired all the time. She continued to have seizures, though they are currently under control. She now suffers from severe headaches, including migraine headaches, and she remains at risk for seizures. In addition, Kaitlin also suffers from cavernous malformations on her brain. At least one of those malformations had been leaking blood. The malformations do not presently require surgery. If Kaitlin's brain malformations have residual bleeding in the future, she may need Gamma Knife Radiosurgery.

Mother pays approximately $200-$250 per month on co-pays for doctor visits and medications for Kaitlin. Mother watches Kaitlin closely on a daily basis, to supervise her medication regimen and her behavior. Kaitlin is subject to mood swings, rapid heartbeat, and possibly becoming suicidal or extremely depressed.

Kaitlin is currently attending the Butler County Community College as a full-time student, in part, so that she may remain on Father's health insurance. She is taking the minimum number of credits. At the time of the [support] hearing, she had a D in two of her four classes. She is afraid to go away to school on her own, without someone to watch over her and her medical treatment. Neither she, nor her mother, believes that Kaitlin is capable of living on her own. Her college is paid by UGMA account set up for her when she was little. She relies on her mother for food, clothing, shelter, and her medication. Occasionally Mother sleeps in bed with Kaitlin, when Kaitlin is sick, in case Kaitlin has to go to the hospital. Kaitlin is in the process of applying for social security disability benefits. No decision has been made regarding her eligibility for those benefits.

Mother is employed as a pilot crew scheduler for U.S. Airways. She works 40 hours per week and earns $22.77 per hour. She is not paid for the time she takes off to take Kaitlin to her medical appointments. Her net income is $3,014 per month. Father is employed as a teacher for the Moon Area School District. He is paid a salary. His net income is $4,428 per month. He provides medical insurance to Kaitlin through his employer at no cost to him. In December 2006, the trial court entered a support order directing Father to pay $398 per month for his daughter's care.

Analysis: The Court began by citing the general rule that “the duty to support a child ends when the child turns eighteen or graduates from high school.” Hanson v. Hanson, 625 A.2d 1212 (Pa.Super 1993). According to 23 Pa.C.S.A. § 4321(3), where a child who, upon reaching the age of majority, has a mental or physical condition that prevents the child from being self-supporting, a parent may be required to continue to support that child. Id. "To determine if an order of support is appropriate, the test is whether the child is physically and mentally able to engage in profitable employment and whether employment is available to that child at a supporting wage." Id. at 1214.

Mother had three lay witnesses testify as to the routines, habits and observations of daughter’s behavior at school, work and home. The witnesses presented evidence of Kaitlin’s inability to be self-supporting due to her mental and physical condition, which prevents her from working fulltime so that she can earn a supporting wage. The trial court determined that the witnesses’ testimonies were credible and the Court was satisfied with this determination. McClain v. McClain, 872 A.2d 856 (Pa.Super. 2005).

Father raised three arguments in his defense. First, no expert testimony was entered to satisfy Mother’s burden of proof regarding emancipation. Second, a neurosurgeon was deposed and used by Mother, but he had no knowledge regarding Kaitlin’s condition upon which to base his conclusions. Lastly, the trial court abused its discretion, since Kaitlin made admissions regarding her normal active lifestyle. In evaluating these defenses, the Court turned to the case of Geiger v. Rouse, 715 A.2d 454 (Pa.Super. 1998) where the court said, “Emancipation is a question of fact to be determined by the circumstances in each case.” In the instant case, the trial court heard unrebutted evidence regarding Kaitlin’s mental, physical condition and testimony regarding the extraordinary costs of her medical bills and prescriptions. Therefore, based upon the facts and sufficient underlying record, the Court affirmed the trial court’s decision that Kaitlin is not emancipated at this time and child support would continue.

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Case Brief: Conroy v. Rosenwald

2009-02-01T11:07:00.001-05:00

940 A.2d 409 (Pa.Super.2007)
Issue: (1) Whether the trial court abused its discretion by denying Appellant (Father) from asserting the defense of paternity by estoppel; and (2) did the court abuse its discretion by ordering that mother was estopped from claiming that Appellant is the legal father from the date of an admission of paternity.

Ruling: The Superior Court found that the trial court properly applied the doctrine of paternity by estoppel under the circumstances of this case. Father was ordered to pay support retroactive to the date mother filed her petition. Order affirmed.

Facts: Mother became pregnant with the child during a time period when she was having sexual relations with Michael Guinan the putative father by estoppel. The parties all believed that Father was sterile and Father was married to his former wife during the relevant times. After Mother discovered she was pregnant, she moved into the home that Guinan had recently purchased but they did not marry. Guinan was listed on the birth certificate. After two or three years, Guinan and Mother broke up. Guinan continued to pay for Mother’s house. Subsequently, Guinan denied paternity and was allegedly excluded as the biological father by a private DNA test (he did not testify at the hearing).

Appellee then filed an action for child support against Father. Father asserted estoppel as a defense to the support action and was summarily denied. At the hearing, the court ordered Father to undergo immediate and involuntary DNA testing, which established his paternity of the child. Following the paternity test, Father filed a petition for reconsideration, arguing the results of the paternity test should be sealed pending his right to a paternity by estoppel hearing. After the trial court denied Father's petition, Father filed an appeal, which the Court dismissed for failure to file a brief. The Court later denied Father's subsequent application to reinstate the appeal. Following a "paternity" hearing on May 25, 2004, the trial court entered an interim order of child support. On September 16, 2005, the interim support order was made a final order. Father appealed. The Court vacated the child support order and remanded the case for a paternity by estoppel hearing.

At the remand hearing, the trial court adjudicated Father’s defense that Mother was estopped from claiming anyone other than Guinan was the child’s father. The trial court found that Father knew or should have known that he was the father of the child. The lower court based its findings on evidence that Father testified that he thought he might be the child’s father when the child was about 3 years old. This was due to the child’s eye color and a resemblance to Father’s oldest son. The lower court held that Father knew or should have known that the child was his due to these revelations. Father appealed this determination, the admission of the DNA test and the partial estoppel.

Analysis: In the instant matter, the Court evaluated the totality of the circumstances, the pre-test conduct of the parties, and the testimony presented. The Court noted that generally, estoppel in paternity issues is aimed at achieving fairness as between the parents by holding both mother and father to their prior conduct regarding paternity of the child. Additionally, it is not the duration of the conduct but rather the nature of the conduct and the effect on the father and child and their relationship that is the proper focus of the analysis. The Court acknowledged that the child already knows Father is her biological father. The Court found that Father’s post-test affirmations of his relationship with the child supported the trial court’s rationale. Guinan left years ago and, purportedly, had no contact with the child for about 8 years. The Court also noted that there was no intact marriage or family unit to protect in this case and therefore the presumption did not apply. Additionally, under these circumstances the public policy of attempting to prevent trauma to the child does not apply. Further, there were mutual mistakes of facts regarding Father’s ability to conceive the child. Accordingly, the Court did not find fraud by either Mother or Father.

The Court also made note that the lower court's opinion twice makes clear its decision regarding estoppel was not predicated on the DNA test results. Although the trial court knew the results, the Court presumed the lower court disregarded this information. The Court found the trial court’s rationale appropriate and affirmed its order that Appellant to pay child support for the child from the date of the filing of the child support petition.

As an issue of first impression, the Court decided that the trial court’s order that mother was estopped from claim based on Father’s paternity prior to Father’s admission that he suspected the child may be his. The Court held that the factors that led to the finding of Father’s admission of paternity allowed the court to estopp Father from denying paternity from that point forward.

Case Brief: Vargo v. Schwartz

2009-02-01T11:05:00.003-05:00

940 A.2d 459 (Pa.Super. 2007)
Issue: Whether the trial court committed reversible error by (1) failing to apply a presumption of paternity and (2) the doctrine of the paternity by estoppel.

Ruling: The Superior court affirmed the trial court’s ruling finding that based upon the trial record no family unit was intact and due to Mother’s fraud and deceit, after learning that he did not father the girls, Father did not hold himself out as children of their marriage.

Facts: Appellee (hereinafter "Mother") married Mr. Vargo in 1989 and remained married to him at all times relevant to this case; however, the marriage was troubled and the couple separated on several occasions. Mother has four children: two boys, T.V. and J.J., born December 31, 1989, and July 27, 1991, respectively, and two girls, K.V. and S.V., born January 14, 2002, and May 28, 2003, respectively. Mr. Vargo is the biological father of T.V., and Hugh Johnston is the biological father of J.J. The identity of the girls' father is at issue in the instant case.

In February 2004, Mother filed a complaint against Appellant, seeking support for the two girls. Following consensual genetic testing of Mother, Appellant, and the two children, the court issued an order directing Appellant to pay child support on an interim basis while proceedings to address his defense to paternity were conducted.

During these proceedings, Appellant made two arguments: (1) the presumption of paternity should apply, which would make Mr. Vargo, as Mother's husband, the presumptive father of the children; and (2) Mother was estopped from proceeding against Appellant for child support because Mother and Mr. Vargo had held the girls out as children of their marriage. In September 2004, the hearing officer recommended that the presumption of paternity not be applied because the Vargo family was not intact, and also that paternity by estoppel not be applied because Mr. Vargo had held himself out as the father of the girls for only a short time, until Mother revealed her deception and informed him that he was not the girls' biological father.

The court accepted the hearing officer's recommendations and denied the exceptions Appellant had filed. Appellant then filed a motion seeking recusal of the trial judge, which, following a hearing, the trial court denied on April 8, 2005. The court issued an order on November 29, 2006, adopting the officer's recommendations that Appellant pay $1,050 per month for support of the girls.

Analysis: In this case, the Court began its analysis by determining the presumption of paternity did not apply. The presumption of paternity’s underlying policy is to preserve the marriage. See Brinkley v. King, 549 Pa. 241 (1997). The record revealed that the Mother and Mr. Vargo did not have an intact marital relationship and there was no marriage to preserve. Therefore, the Court found that the trial court correctly applied the law to the facts.

Next, the Court discussed the doctrine of paternity by estoppel finding the record supported the trial court’s conclusion that the doctrine is not applicable. In evaluating the record, the Court found the Mother and Appellant perpetrated a fraud upon the Husband as to the identity of the girls’ true father. Once the Husband learned of the fraud, the couple separated and he ceased to hold the girls out as his own, “telling everyone” that he was not the father. Despite the deceit and misrepresentation perpetrated on Mr. Vargo, Appellant asked the Court to hold Mr. Vargo as the girls' legal father under the doctrine of paternity by estoppel, thereby relieving Appellant of any legal responsibility he might have toward the children. Appellant based his argument on facts such as the birth certificates name Mr. Vargo as the father, he still visits with the children, and Mr. Vargo was still paying the health insurance through the time of the appeal. The Court declined to agree with the Appellant that these facts had any merit and determined that application of paternity by estoppel in this instance would punish the party that was hoodwinked and reward the party that perpetrated a fraud.

Lastly, Appellant argued that Mother made prior “judicial admissions”, which established Mr. Vargo as the father and the trial court should have been precluded from accepting any evidence to the contrary. Appellant cited three examples: Mother’s complaint for support, a protection from abuse petition against Mr. Vargo, and testimony at a prior hearing for her son. In all three examples, Mother makes admissions that Mr. Vargo is the legal father and that her marriage was intact. The Court relied upon the general rule stating “a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained.” In re Adoption of S.A.J., 575 Pa. 624, at 631 (2003). In evaluating the record, the Court found that Mother did not “successfully maintain” her assertion since she withdrew the support complaint acknowledging that Mr. Vargo was not the biological father and the trial court did not find Mother’s prior testimony to be contradictory to her later testimony.

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Case Brief: J.F. v. D.B.

2009-02-01T10:59:00.003-05:00

941 A.2d 718 (Pa.Super. 2008)
Issue: Whether the trial court erred in denying Father’s request for reimbursement of child support paid to gestational surrogate after the trial court’s order for care of the triplets born under surrogacy contract was vacated on prior appeal for lack of standing.

Ruling: The Superior court affirmed the trial court’s order to deny Father’s request for reimbursement of child support.

Facts: Appellant (J.F.) and his paramour (E.D.) contacted a private surrogacy agency. In August 2002, Appellant, Appellee (D.B.), and Appellee’s husband, and the egg donor executed a surrogacy contract, and the Appellee became pregnant with triplets. Since the triplets were born premature they had minor medical problems and were placed in a medical facility. Appellee became concerned that the Appellant and his paramour were unfit parents. The Medical facility discharged the triplets to the Appellee and her husband without the Appellant’s consent. Then, the Appellant filed a custody complaint.

On January 7, 2005, the trial court directed the parties to share legal custody and awarded primary physical custody to Appellee. Appellant was directed to pay child support as the sperm donor/father of the children. On Appeal, the Superior Court determined that the Appellee lacked standing to pursue custody, thus the court vacated the original custody order and awarded full custody to Appellant. On May 24, 2006, Appellant filed a complaint for reimbursement of the child support payments that he made to Appellee. The trial court ordered that Appellant was not entitled to reimbursement of his child support payments because the child support was used in the best interests of the children.

Analysis: Where the court vacates an order for support, the obligor may not be reimbursed for the amount paid in child support to the prior obligee, where the money was used for the support of the children. The Court began by noting that the right to child support belongs to the children and a parent has an absolute duty to support his children, which is not dependent upon a person having custody. Next, the Court distinguished the immediate case from Elkins v. Williams, 755 A.2d 695 (Pa.Super. 2000) (18 year old son was not a minor and voluntarily left home to live with family friend) and In re Marriage of Cook, 636 S.W.2d 419 (1982) where recovery of payments of support were awarded, because the children were not entitled to child support. In the instant case, although the triplets were in the care of the Appellee, any support payments made to the surrogate were determined to be used for the benefit of the triplets, since nothing in the record reflected that the triplets were not entitled to support. The Court reasoned that based upon the children’s entitlement for support, standing is conferred on any party who is caring for a child regardless if they have a formal custody order or have custody in defiance of the parent’s wishes.

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Case Brief: Faust v. Walker

2009-02-01T10:57:00.002-05:00

--- A.2d ----, 2008 WL 639996 (Pa. Super. March 11, 2008)
Issue: Whether the trial court erred in its application and interpretation of 23 Pa.C.S.A. § 4308.1 in determining the amount of Appellee’s settlement award for his personal injury claim that is attributable to the amount owed on child support arrears.

Ruling: County domestic relations office appealed order of the Court of Common Pleas, striking an order of attachment of income, which attached $5,000 of a personal injury claim settled in favor of child support debtor, and ordered office to prepare order for attachment in the amount of $1,800.93. The Superior Court affirmed.

Facts: Appellee was injured in a motor vehicle accident. Appellee's counsel subsequently settled his personal injury claim for $10,000.00. At the time of the settlement, Appellee had child support arrears in excess of $12,000.00. The trial court issued an order directing counsel to pay $5,000.00 of the settlement toward Appellee's arrears. Counsel filed a motion to strike the court’s order. The trial court entered an order granting Appellee’s motion and entered an order for attachment in the amount of $1,800.93.

The trial court determined this amount by deducting from the $10,000.00 award, counsel fees and costs of $3,199.07, leaving a net award of $6,800.93, of which $1,800.93 was the amount in excess of $5,000.00.

Analysis: The Court began by analyzing Appellant’s contention that the trial court abused its discretion by misapplying the law when it granted Appellee's request to limit the attachment of income in contradiction to the specific language of 23 Pa.C.S.A. § 4308.1. 23 Pa.C.S.A. § 4308.1(a) states that overdue support shall be a lien by operation of law against the “net proceeds” of any monetary award owed to an obligor. In addition, distribution of any such award shall be stayed in an amount equal to the lien for child support pending payment of the lien. 23 Pa.C.S.A. § 4308.1(a). Thus, pursuant to Section 4308.1(a), the amount Appellee owes in arrears is considered a lien against the "net proceeds" of the obligor's "monetary award." The Court notes that the Appellant tried to draw a distinction in the definition of “net proceeds” in 23 Pa.C.S.A. § 4308.1(i) between personal injury awards and workers’ compensation or occupational disease claims. The Appellant claimed that attorney’s fees and costs were only permitted to be deducted from the latter. The trial court noted that the wording of the sentence is awkward, but to follow Appellant’s interpretation would be counter to the legislative intent. The Superior Court affirmed the trial court’s rationale noting “net proceeds” was not an ambiguous term and no further examination of the legislative intent was necessary.

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Case Brief: Glover v. Severino

2009-02-01T10:52:00.003-05:00

--- A.2d ----, 2008 WL 802313 (Pa.Super.)
Issue: Whether the trial court abused its discretion by applying the doctrine of paternity by estoppel after Mother failed to disclose that another man could be the biological father of her child.

Ruling: The Superior Court held that Mother's failure to disclose that another man could be the biological father of the child was fraudulent and precluded the application of the doctrine of paternity by estoppel. Reversed and remanded.

Facts: Appellant (Servino) and Appellee (Mother) had a brief sexual relationship in college. Shortly thereafter Mother informed Servino of her pregnancy. Servino visited the child in the hospital and signed the birth certificate as the child’s Father. Shortly after the child was born, Mother rekindled her relationship with a man she was dating prior to her relationship with Servino and they later married. Shortly after she stopped seeing Servino, Mother filed for support. Servino signed an acknowledgment of paternity and a support award was entered. After the Servino left college he had infrequent contact with the child. Servino paid court ordered child support until 2006.

In 2006, Servino participated in a private paternity test that excluded him as the child’s father. He then demanded a hearing on paternity for the first time in 2007 and the court ordered test also excluded him. A hearing on paternity by estoppel occurred on April 20, 2007, and the court ruled that, despite the results of the tests, Servino was estopped from denying paternity. The trial court reasoned that fraud did not exist because the Mother sincerely believed that Servino was the father and therefore lacked the requisite intent to deceive. The trial court further reasoned that the public policy goal of paternity by estoppel also mitigated in favor of estoppel because Servino’s support payments, seeking custody rights and infrequent contact created a bond with the child.

Analysis: The Superior Court reasoned that the Mother knew that she had relations with other men at the same time she conceived the child and she failed to disclose that fact to the Servino. She therefore “held all of the cards” and her omission satisfied the requisite intent to deceive. The Court relied on the rationale that “misrepresentation need not be an actual statement; it can be manifest in the form of silence or failure to disclose relevant informant when good faith requires disclosure.” In re Adoption of R.J.S., 889 A.2d 92, 98 (Pa.Super.2005). The Court concluded that trial court's rationale allowed Appellee to continue in her fraud by omission, both to Appellant and now to the lower court, and affirming their decision would reward her for it. Additionally, the decision would also allow Appellant to suffer continued harm as a result, which is in direct contravention of the policies of fraud and estoppel. The Superior Court determined that Servino’s actions in support of the child were induced not by his own choice but by Mother's failure to be forthcoming about the true probabilities of his paternity.

As the dissent points out, the fact that sets this case apart from recent decisions that the Court relies on is that Servino knew that mother was seeing other men romantically and had suspected from day one that he may not be the father. This leads to a possible argument that a mother has an affirmative duty when seeking support to inform the putative father of any relationships concurrent to the time of conception.

The Court goes on to address in dicta the flaws it found in the trial court’s reasoning on the public policy issue, ostensibly for the benefit of future application. The Court did not agree that Servino’s sporadic contact with the child had established a bond between them. The Court pointed to the facts that the child called mothers ex-husband “Dad” and the fact that mother had to reintroduce Servino to the child after he did not have any contact with the child for a period of years. Therefore, the Court reasoned, the policy argument that the child would experience trauma due to a lack of stability in a child’s perceived family was not applicable in this instance.p

Case Brief: Krebs v. Krebs

2009-02-01T10:48:00.004-05:00

944 A.2d 768 (Pa.Super 2008)
Issue: (1) Whether an obligor has a continuing duty to inform domestic relations of any material changes affecting support including substantial increases in income and (2) if the lower court erred in finding that obligee has burden to request an automatic review after three years?

Ruling: The Superior Court held that former husband owed increased retroactive child support from the date he first failed to report his significantly increased income, rather than from the date former wife could have, but did not request an automatic review of the parties' support order. Affirmed in part, reversed in part, and remanded with instructions.

Facts: Mother and Father were married on August 6, 1988. They have three children, born August 28, 1990, August 13, 1993, and March 27, 1995. The parties separated on August 20, 1996 and were subsequently divorced. Father is paid sales commissions for his work as a mortgage banker. Mother filed a complaint for support on July 23, 1997. The court issued a support order on April 8, 1998, which included Father's child support obligation of $1,474.33 per month plus health care costs based on his net monthly income of $5,521.02 and Mother's net monthly income of $591.47.

On April 24, 2006, Mother filed the current petition to increase the 2001 child support order. On October 25, 2006, the parties entered the following stipulations before a hearing officer: (1) effective January 1, 2006, Father's monthly child support obligation is $1,910.00 plus medical insurance coverage and 60% of medical expenses exceeding $250.00 a year per child; (2) Father's net monthly income had increased to $6,630.00 in 2001, $7,625.00 in 2002, $12,750.00 in 2003, $14,437.00 in 2004, and $11,562.00 in 2005; and (3) Mother's net monthly income remained at $2,274.00 from 2001 to 2005. The hearing officer found Father had not at any time notified Mother or the Domestic Relations Office ("DRO") of his increased income. The hearing officer recommended that Father pay retroactive monthly child support payments. Father filed exceptions claiming Mother was not entitled to retroactive modification of support prior to the date of her April 2006 modification petition.

The trial court found Father's concealment of substantial increases in income from 2001 to 2005 warranted retroactive modification of Father's support obligation prior to the date of Mother's petition but modified his support arrearages retroactive only to May 21, 2004. On May 8, 2007, the court ordered Father to pay support arrearages of $3,007.00 per month from 5/21/04 - 12/31/04 and $2,769.00 per month from 1/1/05 - 12/31/05, plus health insurance and 86% of unreimbursed medical expenses over $250.00 per child for both years. Mother filed a motion for reconsideration. On May 29, 2007, the court added an arrearages payment schedule of $590.00 per month to Father's current support obligation of $1,910.00, and affirmed its May 8, 2007 order in all other respects.

Analysis: Based upon the record, the trial court properly found Mother had filed her modification petition promptly when she had reason to suspect Father’s misrepresentations. The Superior Court noted that the lower court followed established law when it concluded that Father owed Mother child support arrearages pre-dating the 2006 modification petition, but in doing so it placed an impermissible burden on Mother since she failed to seek a statutory three year review of the original 2001 support order. In reviewing the language of the statute, the Court determined that the Mother was “entitled” to a review, but that she was not under any affirmative duty to act. Alternatively, the Father had an affirmative duty to report the increases in his income dating back to 2001 when he first realized an increase in income. The Court noted that to require the Mother to investigate the Father’s misrepresentation created an unfair and unreasonable burden on the Mother, since she had no way of discovering the misrepresentation.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Case Brief: Silver v. Pinskey

2009-02-01T10:45:00.004-05:00

--- A.2d ----, 2008 WL 902715 Pa.Super., (April 4, 2008)
Issue: Whether the trial court erred in awarding half of the Social security benefits that the Father received on behalf of his children to their mother.

Ruling: Husband received Social Security benefits for his children. Dauphin County, Court of Common Pleas ordered husband to share half of the benefits with his wife. Husband appealed. The Superior Court vacated in part and remanded.

Facts: Father and Mother were married in 1991 and separated in 1998. They have two children of the marriage. Following the parties' separation, Mother maintained primary physical custody of the children. On January 1, 2007, Father and Mother began to equally share physical custody pursuant to a written agreement executed on December 1, 2006. Mother obtained a child support order against Father in 1999, which was later modified on May 18, 2006. At the time of the modification, Father was receiving Social Security benefits. Mother, who was the primary caregiver and was designated by the Social Security Administration (SSA) as the representative payee for the children, was receiving $1,128 per month in benefits for the children.

On December 5, 2006, Father filed a petition to terminate the May 18, 2006 support order based on the anticipated change in physical custody. In addition, Father contacted the SSA and requested that he be designated the representative payee of the benefits for the children. The request was subsequently granted by the SSA. On December 12, 2006, Mother petitioned the court for an increase in support due to Father's alleged increase in income and earning capacity and the children's increased expenses. Following a support conference held on January 12, 2007, the trial court entered two orders. The first order directed Father to pay Mother $425 per month plus $50 in arrears, effective December 12, 2006. The second order directed Father to pay Mother $310 plus $50 in arrears, effective January 1, 2007.

Both parties sought de novo review of these orders. A hearing was held on April 5, 2007, after which the court, by order dated April 5, 2007 and entered April 20, 2007, attributed Father $0 for support. Further, the order directed that effective January 1, 2007, the parties would split the Social Security Check, add one month of benefits to the arrears, father to pay one quarter of mother’s health benefits, and father to pay one half of all children’s extracurricular activities.

Analysis: This case deals with derivative retirement benefits available to dependent children pursuant to the Social Security Act (SSA) and the relative application under the Support Guidelines. Since father and mother shared physical custody and their income was just about equal, the lower court determined that father’s support obligation to be $0. The Superior Court concluded that the lower court correctly applied the Pennsylvania child support guidelines in so far as determining that “Social Security benefits received by a child as the result of a parent’s retirement shall be added to the combined monthly net incomes of the obligor and obligee to calculate the income available for support.” Additionally, the lower court awarded the parties to split the benefits check that the father was entitled to under the Act to prevent the Father from what the court perceived as a windfall. The Court in reviewing the statutory language, looked first at the general rule, which states that benefits are neither assignable nor subject to legal process. 42 U.S.C.S. § 407(a). However, the Act carves out an exception where benefits are paid to individuals obligated to pay child support. 42 U.S.C.S. § 659(a). Father, relying upon Brevard v. Brevard, 74 N.C.App. 484 (N.C.App. 1985), argued that the lower court did not have jurisdiction over the Social Security Administration to order the benefits to be shared with the mother. The Court, in agreement with Father’s argument, applied Brevard, reasoning that “although courts may make [Social Security] benefits subject to a support order”, the exception to the general rule does not apply, because there is an administrative remedy through petitioning the SSA to remove the other party as representative payee and/or to conduct an inquiry into the use of the children’s benefits.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Case Brief: Ferguson v. McKiernan

2009-02-01T10:39:00.003-05:00

940 A.2d 1236, (Pa. 2007)
Issue: Whether a sperm donor involved in a private sperm donation may be held liable for child support, notwithstanding an oral agreement between the donor and the donee to forgo the right of child support.

Ruling: The Supreme Court held that the oral agreement between mother and sperm donor was enforceable. Order of Superior Court reversed and remanded.

Facts: This is a case of first impression. Former paramours Joel McKiernan (Sperm Donor) and Ivonne Ferguson (Mother) agreed that Sperm Donor would furnish his sperm in an arrangement that would operate similar to an anonymous sperm donation. The paramours set up the following sperm donation situation: sperm donation was conducted in a clinical setting; Sperm Donor's role in the conception would remain confidential; and Sperm Donor would not seek visitation nor would Mother demand from him any support. At no time prior to conception, during Mother's pregnancy, or after the birth of the resultant twins did either party behave inconsistently with this agreement. Then, approximately five years after the twins' birth, Mother filed a motion seeking child support from Sperm Donor.

The trial court, recognized the terms of the agreement outlined above and expressed dismay at what it found to be Mother's dishonest behavior, nevertheless found that the best interests of the twins rendered the agreement unenforceable as contrary to public policy. Thus, the trial court entered a support order against Sperm Donor, which the Superior Court affirmed.

Analysis: The Court began its review by looking at the arguments of the parties. Sperm Donor argued that public policy should not preclude parents from bargaining away a child’s entitlement when the actual inducement to enter into an agreement is the sperm itself. He likened the agreement to a “but for” cause, since he would not have provided the sperm if the mother was not relinquishing the right to support for the children. Sperm Donor argued further that by allowing the Superior Court’s holding to stand, calls into questions all anonymous sperm donor’s legal status. Clinical sperm donations have preconception contracts where anonymous donors are held harmless for support as part of the bargained for exchange when donating sperm. Mother argued that public policy mandates that the best interests of the child should preclude the enforcement of any valid mutually entered into contract regardless of the clinical setting and the agreement being made prior to conception. Mother relied heavily on the fact that the legislature has never chosen to adopt protection for donors in the 30 years that assisted reproduction has been utilized. The Supreme Court in evaluating Mothers’ argument did not find it sustainable given the ever increasing role of reproductive technology in our modern society. The Court in recognizing the effect that the Superior Courts ruling could have upon clinical setting donors, evaluated the totality of the circumstances to determine if the instant agreement was similar to a clinical setting. “They negotiated the agreement outside the context of a romantic relationship; they agreed to terms; they sought clinical assistance to implant the embryos; they attempted to hide the Sperm Donor’s paternity; and for five years until Mother filed the support action, they abided by their agreement.” The Court stated that it did not take the decision lightly to not rule in the best interests of twins who never asked to be born into this situation, but would suffer on account of this ruling since they will not have support. Nonetheless, finding that the intent of the parties to be similar in nature to a clinical setting, the Court found it was necessary in this case to protect the many other sperm donors who enter into agreements in a clinical setting by overturning the lower court decision finding the agreement between the parties unenforceable.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Economic Worries Keeping Couples Together

2009-01-24T15:07:00.002-05:00

I was reading through the news and found this interesting article about couples who are putting their divorces on hold in hopes of waiting until more certain economic times. Now I know this may seem suspect coming from a divorce lawyer, but this article did touch on how staying together for the sake of money may have some undesired consequences. If you and your spouse cannot get along enough to remain married, staying together will only further complicate things. While I am not a marriage counselor or anything like that, I have dealt with married couples long enough to know that when it is over, it is over.

You can read the article here.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

“Children’s Fast Track” rule should help children in need

2009-01-21T11:26:00.002-05:00

There appears to be some good news from the PA legislature on a new law which will speed up the adjudication of certain cases involving children. This is very good news since children are usually the ones who lose the most in prolonged custody battles and other such issues. The only hope is that the new law does not stop from an issue being fairly argued. Sometimes, unfortunately, these matters take a while to sort out, and while everyone wants a quick resolution, every also wants a fair and equitable resolution. Hopefully this law has a balance of both.

For a brief write up on the new rule you can also go to the Pittsburgh Post-Gazette website here.

Please contact Petrelli Law, P.C. at (215) 523-6900 if you would like more information.

Family Law Blog Intro: A Statement of Purposes

2009-01-14T13:10:00.001-05:00

Welcome to the Family Law Blog maintained by Petrelli Law, P.C. This blog was created to serve several purposes to be discussed below.

First, it came to our attention at Petrelli Law, P.C. that basic legal information can be difficult to attain for the average person. What this blog is aiming to do is to give some of the basic information to help people prepare for a divorce. Many people don’t understand the type of information needed to meet with their attorney or the general basic tenets of family law. This blog serves to help those people find just what it is they need to know and expect before stepping into a lawyer’s office. The more you know, the more comfortable you will be with the process. It should be noted that this site is will not be a “do it yourself” information site. Family law can be very complicated and there are many different nuances that require the aid of an attorney. The information provided is not legal advice and merely informational to remove some of the mystery of the legal process.

Additionally, Petrelli Law, P.C. wants to aid other members of the legal community. We encourage open discourse with other lawyers regarding issues that impact our profession. When communication is free and open, all parties benefit. We hope that the dialog does not end on this site, but it spreads to the legal community as a whole. We hope this blog provides information to fellow attorney’s that will be helpful to them in their practice of family law.

Well that’s it for now, be sure to check in later for updates.

Ed. Just before publishing our first blog we have become aware that the Jan. 8th edition of the Legal Intelligencer has identified 2009 as the “Year of the Blog,” and we couldn’t agree more. We hope that this can be at the forefront of the divorce and family law legal blogging community.