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Spousal Support of Foreign Nationals – The I-864

Back in 2012, I reported on a Pennsylvania Superior Court case, Love v. Love, in which Pennsylvania recognized a support obligation arising from sponsorship of a foreign national spouse.  Now, the ABA Family Law Quarterly has published an article, entitled “The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate,” examining Love and similar decisions around the United States.  As the article mentions, a spouse who sponsors his or her spouse for immigration to the United States must sign a form, the I-864, promising to provide support to the foreign national, at a level equal to 125% of the Federal Poverty Guidelines.  Currently, that is equivalent to $14,588 per year ($1,216 per month) plus $5,075 for each additional household member.

The support obligation created by I-864 is indefinite in duration.  Potentially, a sponsor could be contractually liable for the lifetime support of a foreign national, if the foreign spouse does not earn in excess of the poverty guideline.  A Florida federal district court held, in fact, that the I-864 obligation continues after separation and divorce.  The obligation does terminate, however, when the foreign national achieves U.S. citizenship, works for 40 quarters (10 years), leaves the U.S. and resigns permanent citizenship, is deported, or dies. Household income of the sponsor may be used to meet the support obligation (if the spouses reside together), and their earnings may be “double stacked” to meet the 40 quarter requirement in five years.

Avoiding the I-864 support obligation is extremely difficult, as the article suggests.  One might think that the obligation could be waived with a prenup, but three out of four courts who have considered that argument rejected it.  Other contract remedies, such as failure of consideration, have met similar fates.  The author of this excellent article, Greg McLawsen, maintains a website and blog dedicated to this subject, found here.

Equal Custody Trumps Long Commute to School

When one parent moves to a new neighborhood after having equal shared custody, the move might cause a longer commute time for a children traveling to and from school.  In a recent published decision, the Superior Court of Pennsylvania considered whether it was reasonable to shift primary custody to one parent in order to limit the child’s commuting time.

In R.S. v. T.T., 2015 Pa. Super. 72 (April 10, 2015), the mother of a 6 year old child was awarded primary custody because equally shared custody would require the child to commute up to 40 minutes to and from school if he stayed with Father during the week.  Both parents agreed that a shared custody schedule would require the child to spend too much time riding back and forth in a car.  Mother testified that a shared custody schedule had become impractical when the child start to attend full day elementary school, as it would prevent the child from establishing predictable routines and establishing roots.  The trial court agreed, holding that the commuting would undermine the child’s stability.

The Superior Court disagreed, overturning the trial court’s decision.  First, the Court noted that Mother and Father had not agreed to terminate the shared custody arrangement in order to avoid commuting. Next, the Court held that a child’s attachment to his parent was more important than avoidance of a 40 minute daily commute.  The Court even suggested a week on/week off custody schedule to minimize the number of weekly custody exchanges.

The Court also emphasize the importance of considering all ramifications stemming from a change in the custody arrangement. Finding that the trial court had not adequately considering the potential damage to the child’s relationship with his father, the Superior Court vacated the order.

Father Reasonably Withheld Support for College Tuition

Parents who are divorcing in Pennsylvania often express willingness to pay for their children’s college tuition when the time should come.  Some parents even put their commitment in writing. Yet, as this case demonstrates, circumstances may change from the time of the divorce settlement to the time when children matriculate in college, and an effective agreement will anticipate those changes.  The Superior Court of Pennsylvania examined one of those agreements in Mazurek v. Russell, 2014 PA Super 130 (June 24, 2014).

In 2010, Mother and Father executed a marital settlement agreement, in which Father agreed to pay 100% of the children’s expenses for colleges that would be “reasonable and appropriate for the children, with the parties’ mutual consent, which consent shall not be unreasonably withheld.”  Three years later, Mother sued Father for contempt of this provision after Father refused to pay for their third son’s expenses at Marymount Manhattan College.  Father presented evidence, in the form of emails that he wrote to his son and Mother, to prove that his refusal to pay was not unreasonable.  Father testified that his son had estranged himself from Father, did not consult him about his choice of colleges, did not permit Father to access his academic records and grades, and did not agree to maintain a 3.0 grade point average and refrain from having a car at school.  The trial court held Father in contempt, finding that his refusal to pay was not reasonable.

On appeal, the Superior Court quoted two lengthy emails that Father wrote to his son (linked here). Father told his son he thought Marymount Manhattan was not the right choice for him, that Emerson would be a better choice, and that he would not financially support a son who refused to communicate with him. Father followed up with an email to Mother, writing that he would pay for tuition only if the son would grant him access to his academic records, maintain a 3.0 GPA, and refrain from keeping a car at school. Father also testified that he had paid private school tuition for all four children through high school, and college tuition for two elder children.  The third child had not lived up to his academic potential in high school, and Father was concerned that he lacked maturity to succeed in college without parental supervision.  Interestingly, Mother did not testify or present witnesses.

The Superior Court agreed that Father’s demands were reasonable.  The Court cited Fina (1999), a college support involving a similar contract obligating a parent to pay for college.  In Fina, as in this case, the parent’s obligation was conditional upon being consulted and granting his consent, which would not be withheld unreasonably. In Fina, as in this case, the Court held that a child’s refusal to consult with the parent and “purposeful estrangement” excused the parent from his contractual obligation.  The Court distinguished the prior decision in Wineburgh (2002), in which the parent was not excused from paying tuition.

The Superior Court reversed the trial court’s decision holding Father in contempt.  On appeal, the Court held that Father’s refusal to pay for the child’s college expenses was reasonable.

Judge Jenkins wrote separately in Mazurek, filing a concurrence. In his opinion, Judge Jenkins expressed reservations about what might constitute “purposeful estrangement” between a parent and child. Judge Jenkins hinted that if the child need not have a meaningful personal relationship with his father in order to deserve financial support under the contract.  It would be sufficient, perhaps, for the child to inform his father of his plans and provide his grades.

Child Support Agreement Does not Limit Father’s Obligation

A recent Pennsylvania Superior Court decision considers: (a) whether a father’s child support obligation is limited by a settlement agreement; and (b) whether the court should assign an earning capacity to a mother who provides full time care for a special needs child.

Morgan v. Morgan, 2014 PA Super 176  (Pa.Super.2014)

Mother and Father in this case were divorced, and settled their economic claims by written agreement in Maryland in 2003.  The marital settlement agreement contained provisions for alimony and child support, which were fixed until July 1, 2007.  The settlement agreement was incorporated, but not merged, in the decree in divorce.

In 2007, Father registered the settlement agreement in Franklin County and petitioned for modification of alimony. Mother responded with a petition to increase the alimony. Four years of litigation ensued, including a Superior Court appeal and remand. During the second appeal, subsequent to the remand, Father threatened to stop paying support for the special needs child, who was over 18 years old.  Mother filed a petition to modify child support, and the trial court learned that Father had falsified his tax returns and income records. This resulted in an extensive discovery period and a retroactive modification of child support, back to 2007 when Father registered the settlement agreement.

The action finally came to trial in 2012, in which the trial court modified the support obligation retroactively and awarded Mother $128,526 in legal fees. The Court imputed Mother with a full time earning capacity, based upon the testimony of Father’s vocational expert, and denied a 25% upward deviation from the guidelines based on the minimal time that Father spent with the child.

Father initiated a Superior Court appeal, arguing that the trial court lacked jurisdiction to modify the child support provisions of a settlement agreement that was incorporated, but not merged, in the divorce decree[1].  The Superior Court disagreed:

The Divorce Code specifically provides that regardless of whether an agreement between parties is merged or incorporated into the divorce decree, “[a] provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.” 23 Pa.C.S.A. § 3105(b); see also McClain, 872 A.2d at 862-63.

Thus, the Court held that the child support obligation was not limited by the terms of the settlement contract.

Mother filed a cross-appeal, raising several issues. First, Mother argued that the trial court should not have assigned her an earning capacity because child care expenses were likely to consume her earnings.  The trial court had reasoned that Mother’s child care expenses were too speculative to be quantified until Mother actually began to work.  The trial court could not predict how many hours Mother would be in the office or commuting. But more importantly, Mother had not reconciled how she was handling child care currently when she was unavailable to provide care “due to her extensive work with Democratic politics” and when studying for her Ph.D. degree outside of the home. Tacitly, the trial court was skeptical about Mother’s need for child care to work, when she apparently didn’t need child care to pursue politics and study at the university.

Secondly, Mother disputed the trial court’s finding that she could earn $80,500 per year after a 12 year absence from the workforce.  The Superior Court noted that Father’s vocational expert had cited a range of salaries, and he testified that Mother could earn the upper end of the range after a few years back to work. The Superior Court vacated the trial court’s finding, which was the upper end of the scale, especially since the trial court applied that earning capacity to the entire retroactive period, which was five years prior to the hearing.

Finally, Mother argued that the trial court should have awarded a 25% upward deviation from the support guidelines, because Father almost never visited the unemancipated child. The trial court had reasoned that Father had no legal recourse to see the child more often, since custody laws did not apply, and Mother had once refused to allow Father to visit. Under an “abuse of discretion” standard, the Superior Court affirmed.

 

[1] Prior to the 1988 Divorce Code amendments, Pennsylvania law distinguished between agreements that were merged into the divorce decree, giving power to the courts to modify the agreement; and those that were merely incorporated, prohibiting the courts from modifying.  See, Nicholson v. Combs, 550 Pa. 23, 703 A.2d 407 (1997); Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Jones v. Jones, 651 A.2d 157 (Pa. Super. 1994). In 1988, the Legislature revised 23 Pa.C.S.A. § 3105(b), which eliminated this distinction.

College Support Agreement Enforceable in Pennsylvania

Divorced and separated parents in Pennsylvania with children going off to college may wonder who is responsible for paying the tuition. A recent Superior Court court decision reminds us of the law governing college support in Pennsylvania.

W.A.M. v. S.P.C., 2014 PA Super 139 (Pa.Super.2014)

When Mother and Father divorced in Missouri in 2001, they settled their claims by written agreement, including a provision for child support. Their child support clause followed the contours of Missouri law, which requires the payment of child support until a child graduates from college or reaches age 22, whichever occurs first.  In this case, the settlement agreement explicitly provided that it would be governed by Missouri law.

In 2006, Mother and child moved to Pennsylvania.  The Missouri settlement agreement was registered for custody enforcement purposes, conferring personal jurisdiction over the parties.  In 2013, when the child graduated from high school, Father attempted to terminate child support, alleging that the child was estranged from him, and it would be unconstitutional under Pennsylvania law to require Father to pay support. The trial court rejected Father’s petition without scheduling a hearing.

On appeal, the Superior Court rejected the constitutional argument.  While our courts have held that a common law or statutory duty to pay college support violates the Equal Protection Clause of the state and federal constitutions, Curtis v. Kline, 666 A.2d 265 (Pa.1995), Blue v. Blue, 616 A.2d 628 (Pa.1992), there is no constitutional impediment to a contractual obligation. Reif v. Reif, 626 A.2d 169, 173 (Pa. Super. 1993). The trial court did not abuse its discretion, furthermore, because there was no material factual dispute.  Father’s estrangement from his child has not been recognized by our law as a defense to a contractual support obligation. More importantly, Missouri does not recognize an estrangement defense.  Accordingly, the Court held that the contract would be enforced.

Can Grandparents Have Custody if Both Parents are Working?

Grandparents who are raising their grandchildren in Pennsylvania, while the parents work, might wonder if they have legal custody rights under the law. A recent decision of the Pennsylvania Superior Court (non-precedential) may contain an answer to that question.  In J.L. F.L .and L.L. v. A.A.M., No. 530 MDA 2014 (August 28, 2014), the mother and father resided with father’s parents when their son was born.  Father and Mother became separated, and initially agreed to a week-on, week-off custody arrangement. Mother then moved 4 hours away when her boyfriend’s job was relocated. At that point, Father assumed primary physical custody, still living with his parents.  Mother saw the child once a month. This situation continued for approximately two years.

Father subsequently moved out of his parents’ home to live with his girlfriend, twenty minutes away. He began to work a factory job on second shift (3:00 p.m to 1:00 a.m.), which prevented him from seeing the children after school.  A custody proceeding ensued.  The court decided to keep the child in his grandparents’ home during the school year, with Father having “primary” physical custody in theory, and Mother having partial custody on weekends and during the summer.  Mother filed an appeal, arguing that custody should have been awarded to her instead of the grandparents.

The Superior Court observed that the grandparents would have standing to seek partial physical custody, but not primary physical custody. Furthermore, the law gives parents a strong legal advantage over third parties, including grandparents, in custody proceedings. The Court also held that relocation factors must be considered, because an award of custody to Mother would require the child to move. The Superior Court vacated the custody order and remanded the case, warning the trial court that it could not award primary physical custody to grandparents, even under the guise of “delegating” Father’s custody rights to his parents.  It appears that grandparents may not have the right to exercise primary physical custody of their grandchildren as an extension of one parent’s custody rights.

Reality vs. Paternity: 17 Years is Too Late to Ask for DNA Paternity Test

Men who pay child support in Pennsylvania to mothers who were never their wives may wonder whether the children they support are their own. These days, it is easy to administer a home paternity test and quickly learn whether there is a blood relation between the child and the man who is paying support. Yet, it’s a Pandora’s box, and once opened, the consequences might not be as one intended.  That’s what happened in a recent Superior Court decision (unpublished), D.S. v. S.S., No. 2037 WDA 2013 (August 22, 2014)(non-precedential).

In D.S., a child was born in 1996 to an unwed mother, who was at that time dating her boyfriend, D.S. Assuming the child was his, D.S. signed an acknowledgment of paternity in the hospital, and when a second child was born in 1999, he did the same. Mother and putative Father soon broke up, and Father agreed to pay child support. Although they resided in different cities, Father and the children maintained a parental relationship, with Father having custody twice a month. When the kids were teens, Father took a photo of them at the beach and realized that his children did not bear any physical resemblance to him. He purchased a genetic paternity test at the drug store, administered it, and soon learned that the children could not be his relatives. The children, who had known no other father in their lives, were devastated by the news, and Father’s relationship with them suffered. He sued for a judicial determination of paternity and asked the court to terminate his child support obligation.

The trial court applied the “best interests” standard and refused to excuse Father from paying child support, finding that it was in the children’s best interests to maintain their relationship with D.S. No official paternity test was ever given. The Superior Court affirmed. The Court found no evidence that Mother intentionally perpetrated a fraud on Father. More importantly, any hope of preserving the children’s relationship with Father was destroyed not by Mother, but by Father himself.  The Court held that the children would benefit greatly from continuing to have Father in their lives. Whether his role will be parental or merely financial depends, perhaps, on what he does next.

Divorce and Discovery: Superior Court Rejects Privacy Interest to Justify Protective Order

Pennsylvania residents who are getting divorced may face the daunting task of answering discovery: interrogatories and document requests. Some may wonder why they must produce personal information, such as checking account records that show purchases made long after a marital separation, or tax returns that include the income of a new spouse. Will the Pennsylvania courts enter a protective order to prohibit the discovery of personal information?

A recent en banc decision of the Superior Court may shed light on this question. Typically, discovery issues cannot be appealed, so there is little guidance for lawyers and judges who disagree over the limits of permissible discovery. A new decision, Dougherty v. Heller, 2014 PA Super 170  (August 14, 2014) is not a family law case, but may guide lawyers and judges on discovery issues in family law. Dougherty is a defamation case, in which a union leader sued a newspaper reporter who wrote a op-ed story that was critical of him.  During the discovery process, the reporter scheduled a videotaped deposition of the union leader (presumably, to prove the truth of the story she published). The union leader demanded that the reporter sign an agreement that the videotape would not be published or disseminated to third parties without leave of court. The reporter refused, and presented a motion to compel the deposition. The trial court granted the motion and ordered the union leader to submit to his deposition. The union leader appealed the decision, which was heard by an en banc panel of nine Superior Court judges.

The Superior Court first examined its jurisdiction to hear a discovery issue on appeal. Generally, the appellate courts will not hear appeals until the final order is issued (in this case, a decision as to whether the reporter defamed the union leader).  Under the “collateral order” doctrine, however, the appellate court may hear issues that can be decided without affecting the main issue in the case, if the collateral issue is a matter of public importance, and the issue would be moot if deferred until the final decision.  The union leader raised two interrelated issues in his appeal, and the Superior Court agreed to hear only one of them: whether the deposition would invade the privacy rights of the deponent.

In its opinion, the en banc panel found that the union leader did not articulate the source or nature of his privacy rights. The Court made reference to Stenger v. Lehigh Valley Hospital, 530 Pa. 426, 609 A.2d 796  (1992), in which the Supreme Court compelled a hospital to identify the names of blood donors who had inadvertently supplied contaminated blood, which the hospital negligently administered to healthy patients.  In Stenger, the hospital specifically identified the privacy rights of the donors: their right to keep health matters confidential, their right to avoid stigma, their right to be let alone.  The Supreme Court permitted the discovery upon the condition that the donors would be interviewed anonymously about the screening procedures that were used when their blood was drawn. No names or addresses would be recorded or associated with the data.

In Dougherty, the plaintiff identified his First Amendment right to privacy, citing several cases without articulating the specific nature of his privacy rights. The Superior Court examined those cases to determine the nature of his privacy rights, and whether discovery might invade them. In Seattle Times, a cult leader refused to produce financial records showing the names of donors, which the newspaper claimed a right to discovery and publish. The U.S. Supreme Court held that there is no First Amendment right to disseminate information derived from the discovery process.  On the other hand, the Superior Court held, Seattle Times did not hold that citizens have a First Amendment right to keep private the information disclosed in discovery.  In MarkWest, the Commonwealth Court considered a motion to prohibit the discovery of trade secrets and confidential business information. The Superior Court was not persuaded by a footnote in that case, expressing that litigants have no right to disseminate information obtained through the discovery process.

The Superior Court in this case concluded that the union leader did not articulate a constitutional privacy interest warranting protection from discovery or dissemination of the information garnered through discovery. The Court also examined Rule 4012, which provides grounds for a protective order. That Rules vests a broad measure of discretion in the trial court to determine whether “good cause” is shown. The Court refused to second-guess the trial court’s exercise of discretion, and affirmed the ruling.

Two judges dissented from the majority opinion, finding that the union leader had shown good cause for the issuance of a protective order. Their opinion cited a Third Circuit case, Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-787 (3d Cir. 1994), which set forth a list of criteria to be considered when judging whether “good cause” is shown for a protective order in discovery. The dissenting judges cited extensive evidence from the certified record, applying the Pansy criteria, to demonstrate that good cause was shown. Among other things, there was a long history of litigation between the union leader and the newspaper for whom the reporter worked, giving the union leader every reason to believe that his deposition would be misused.  The dissenting judges found that it would not be unreasonable to prohibit the reporter from sharing the deposition with third parties.

Child Support Taken from Retained Earnings of Business

When a business owner in Pennsylvania owes child support, he or she may consider whether to include the retained earnings that are not distributed to owners in calculating child support.  A recent decision of the Superior Court (non-precedential) answers this question by making reference to a previous child support decision.  In M.J. v. S.J., No. 747 WDA 2013 (July 16, 2014), the owner of a consulting business organized as a Subchapter S corporation argued that retained earnings should not be included in his income when calculating child support. His argument may have had merit, but perhaps he did not submit the necessary evidence to protect his retained earnings from the child support collector.

The Superior Court in this decision mentioned Fennell v. Fennell, 753 A.2d 866 (Pa. Super. 2000), a case in which retained earnings were excluded from the income of a shareholder who owned a minority interest in the business. Fennell established different standards for majority and minority owners of business, creating a presumption that a minority owner does not have the prerogatives of control necessary to compel the business to pay his or her share of retained earnings.  A majority owner, on the other hand, has a higher burden of proof.  The majority owner must prove that there is a legitimate business purpose why a business cannot distribute its profits to the owner, such as the need for capital to acquire equipment or supplies.  Additionally, a business owner might want to demonstrate that retained earnings were earned in prior years.  There is case law holding that income earned in the past cannot be used for child support purposes in the present.

Parents Held in Contempt of Custody Order for Chronic Tardiness and Spurious CYF Investigations

Pennsylvania parents who have custody orders may experience frustration when the other parent does not comply.  A recent decision of the Superior Court (unpublished) affirmed the Montgomery County courts, holding both parents in contempt for various violations of their custody order.  In M.B. v. L.G., No. 2947 EDA 2013 (July 18, 2014), the father of a ten year old child filed a custody contempt petition against the child’s mother when she filed a frivolous PFA petition to thwart his custody rights, and initiated a CYF investigation that resulted in an unfounded report. The father also complained that the mother refused to use the Our Family Wizard software as ordered by the court to facilitate communications and scheduling between the parents.

Meanwhile, the mother filed her own contempt petition against Father, who was chronically late for custody exchanges (10 to 33 minutes) and made derogatory comments about Mother to the child and the child’s teachers.  The Montgomery County court held a consolidated hearing on both parents’ petitions, and found both parents in contempt.  Father took his lumps, but Mother filed an appeal, claiming that her actions were justified because she could not afford the OFW program and made her best efforts to comply with the custody order. Mother also argued that the judge was biased against her.

The Superior Court affirmed the trial court’s order, demonstrating that our courts will provide a remedy for violations of a child custody order.