2007 PBI Family Law Update - Support

Child Support, Spousal Support Child Support, Spousal Support and Alimony Pendente Liteand Alimony Pendente Lite

Brian C. VertzBrian C. Vertz

www.bvsource.comwww.bvsource.com

Monster Support, Witch Support Monster Support, Witch Support and Blood-Draining Spousesand Blood-Draining Spouses

Brian C. VertzBrian C. Vertz

www.bvsource.comwww.bvsource.com

Jacob v. Shultz-JacobJacob v. Shultz-Jacob, 923 A.2d 473, 923 A.2d 473

Two financially responsible parents Two financially responsible parents (Mother and her partner)(Mother and her partner)

Two children adopted by MotherTwo children adopted by Mother

One child conceived by Mother with One child conceived by Mother with assistance of sperm donorassistance of sperm donor

Jacob v. Shultz-JacobJacob v. Shultz-Jacob, 923 A.2d 473, 923 A.2d 473

Mother sued Partner for child supportMother sued Partner for child support

Partner attempted to join Father as an Partner attempted to join Father as an indispensable partyindispensable party

Trial court refused to join Father; reversed Trial court refused to join Father; reversed by Superior Courtby Superior Court

Mencer v. RuchMencer v. Ruch, 2007 Pa.Super.182, 2007 Pa.Super.182

Brain-injured Father on welfareBrain-injured Father on welfare

Special needs trust established after birth Special needs trust established after birth of childof child– invested in income-producing annuityinvested in income-producing annuity

Income from trust = income for supportIncome from trust = income for support

Earning capacityEarning capacity

Krankowski v. O’NeilKrankowski v. O’Neil, 207 Pa.Super.179, 207 Pa.Super.179

Autistic and mentally retarded childAutistic and mentally retarded child

Father civilian employee of U.S. Dept. of Father civilian employee of U.S. Dept. of Defense, stationed in GermanyDefense, stationed in Germany

Trial court counted “living quarter Trial court counted “living quarter allowance” and “post allowance” as allowance” and “post allowance” as income; affirmed by Superior Courtincome; affirmed by Superior Court

Nurturing parent doctrine Nurturing parent doctrine

Reinert v. ReinertReinert v. Reinert, 926 A.2d 539, 926 A.2d 539

Mother had partial custody of childMother had partial custody of child

Mother engaged to be married, high risk Mother engaged to be married, high risk pregnancypregnancy

Mother did not return to work; on welfareMother did not return to work; on welfare

Trial court applied nurturing parent Trial court applied nurturing parent doctrine; affirmeddoctrine; affirmed

Grigoruk v. GrigorukGrigoruk v. Grigoruk, 912 A.2d 311, 912 A.2d 311

Mother terminated from job due to willful Mother terminated from job due to willful misconduct, found lower-paying jobmisconduct, found lower-paying job

Mother sought modification - child supportMother sought modification - child support– Three year reviewThree year review– Prior support order contained APL offsetPrior support order contained APL offset

Earning capacityEarning capacity

Gibbons v. KugleGibbons v. Kugle, 908 A.2d 916, 908 A.2d 916

Private school tuitionPrivate school tuition

No marital history; both children were pre-No marital history; both children were pre-school aged when parents separatedschool aged when parents separated

Post-separation, both kids attended public Post-separation, both kids attended public schoolschool

Trial court ordered children to parochial Trial court ordered children to parochial school; affirmedschool; affirmed

Kraisinger v. KraisingerKraisinger v. Kraisinger, 2007 Pa.Super. 197, 2007 Pa.Super. 197

Marital settlement agreementMarital settlement agreement– Wife waived child supportWife waived child support– Husband agreed to pay family support and Husband agreed to pay family support and

Wife’s mortgage (or substitute payment)Wife’s mortgage (or substitute payment)

Wife sought increase in child supportWife sought increase in child support

Husband attempted to enforce agreementHusband attempted to enforce agreement– Roberts v. Furst, 561 A.2d 802 (1989)Roberts v. Furst, 561 A.2d 802 (1989)


Modification of contractual support - Modification of contractual support - Roberts v. FurstRoberts v. Furst– Made without fraud or coercionMade without fraud or coercion– Fair and reasonableFair and reasonable– No prejudice to the children’s welfareNo prejudice to the children’s welfare

Mortgage payment: support or property?Mortgage payment: support or property?


Trial Court: mortgage payments were part Trial Court: mortgage payments were part of property settlementof property settlement– Required to pay even if farm was soldRequired to pay even if farm was sold– Duration not associated with childrenDuration not associated with children– Unfettered discretion to spend moneyUnfettered discretion to spend money

When mortgage payments were excluded, When mortgage payments were excluded, the agreement was below guidelines the agreement was below guidelines


Nurturing parent doctrineNurturing parent doctrine

Imputed interest on gain from sale of farmImputed interest on gain from sale of farm

Loss on rentalLoss on rental

DepreciationDepreciation

Legal FeesLegal Fees

Shields v. ShieldsShields v. Shields, 927 A.2d 206, 927 A.2d 206

AllocaturAllocatur granted by Supreme Court granted by Supreme Court

Issues:Issues:– Modification of child support provisions of a Modification of child support provisions of a

marital settlement agreement where there is marital settlement agreement where there is an unforeseen change in custodyan unforeseen change in custody

Ney v. NeyNey v. Ney, 917 A.2d 863 , 917 A.2d 863

Father reduced his working hours and Father reduced his working hours and salary to become a full-time parentsalary to become a full-time parent

Mother attempted to prevent increase in Mother attempted to prevent increase in her child support payment by arguing that her child support payment by arguing that Father voluntarily reduced his income andFather voluntarily reduced his income and

Bulgarelli v. BulgarelliBulgarelli v. Bulgarelli, 2007 WL 2793125, 2007 WL 2793125

2001 Marital Settlement Agreement2001 Marital Settlement Agreement– incorporating an existing support orderincorporating an existing support order

Subsequent modification under guidelinesSubsequent modification under guidelines

50/50 shared custody50/50 shared custody

Now combined income > $20,000 per mo.Now combined income > $20,000 per mo.


MelzerMelzer analysis: analysis:

MotherMother FatherFather

IncomeIncome $2,824$2,824 $21,307$21,307

Personal Personal ExpensesExpenses

(2,313)(2,313) ( 3,378*)( 3,378*)

Left overLeft over $ 511$ 511 $17,929$17,929

Children’s Children’s ExpenseExpense

(7,387)(7,387) (10,134**)(10,134**)

(6,876)(6,876) $ 7,795$ 7,795


RevisedRevised MelzerMelzer analysis: analysis:

MotherMother FatherFather

IncomeIncome $2,824$2,824 $21,307$21,307

Personal Personal ExpensesExpenses

(2,220)(2,220) ( 3,568)( 3,568)

Left overLeft over $ 604$ 604 $18,739 $18,739 [sic][sic]

Children’s Children’s ExpenseExpense

(5,524)(5,524) ( 8,545)( 8,545)

(4,920)(4,920) $ 8,194 $ 8,194 [sic][sic]


Presumptive minimum guideline: $2,061Presumptive minimum guideline: $2,061

Combined net incomes: $24,131Combined net incomes: $24,131– exceeds guidelines by $4,131exceeds guidelines by $4,131

MelzerMelzer child support: $5,045 child support: $5,045– exceeds guidelines by $2,984exceeds guidelines by $2,984

Total Income for Mother: $7,869 (4 pp.)Total Income for Mother: $7,869 (4 pp.)

Total Income for Father: $16,262 (7 pp.)Total Income for Father: $16,262 (7 pp.)

Robinson-Austin v. Robinson-Robinson-Austin v. Robinson-AustinAustin, 921 A.2d 1246, 921 A.2d 1246

Settlement agreementSettlement agreement– Father to pay child support until child was Father to pay child support until child was

emancipatedemancipated

Child attending GED program past age 18Child attending GED program past age 18

Child support not terminated; affirmedChild support not terminated; affirmed

Appeal frivolous; award of legal feesAppeal frivolous; award of legal fees

Busse v. BusseBusse v. Busse, 921 A.2d 1248, 921 A.2d 1248

Change in accounting methodChange in accounting method– From cash method to accrual methodFrom cash method to accrual method

Double dippingDouble dipping– Withdrawal of corporate fundsWithdrawal of corporate funds

Legal FeesLegal Fees– 42 Pa.C.S. 250342 Pa.C.S. 2503– 23 Pa.C.S. 435223 Pa.C.S. 4352– 23 Pa.C.S. 370223 Pa.C.S. 3702

Change in Accounting MethodChange in Accounting Method

Cash methodCash method– Revenue recognized when cash receivedRevenue recognized when cash received– Expense recognized when cash paidExpense recognized when cash paid

Accrual methodAccrual method– Revenue recognized when earnedRevenue recognized when earned– Expense matched to revenuesExpense matched to revenues

Change in Accounting MethodChange in Accounting Method

Change in RevenuesChange in Revenues– inventoriesinventories– accounts receivableaccounts receivable

Change in ExpensesChange in Expenses– accounts payable accounts payable

Technology

2007 PBI Family Law Update - Support