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Statutory Share for Surviving Second Wife Trumps Intervivos Trust Formed before Marriage

The Superior Court addressed a novel question in Trust under Deed of David P. Kulig, 2015 PA Super 271 (December 24, 2015), a dispute between the second wife of a decedent and the children of his first wife. The decedent David Kulig formed a revocable trust while married to his first wife Joanne, providing that his children would receive the principal balance of the trust upon his death if Joanne predeceased him. Mr. Kulig outlived his first wife Joanne. He did not sign a prenuptial agreement, or amend his will or trust when he married his second wife Mary Jo. Mr. Kulig died while he was married to Mary Jo, who survived him.

The trust’s assets were worth more than $3 million, and the probate estate was worth more than $2 million. Mary Jo, the second wife, claimed an intestate share that included the trust assets, claiming that her statutory share overrode the trust under 20 Pa.C.S. §§ 2507(3) and 7710.2. The children of the first wife petitioned to declare the trust to be effective. The trial court held that the trust was not effective, and awarded one-half of all assets to Mary Jo.

Section 2507(3) of the Probate Code grants a share to the surviving spouse of a decedent who leaves a will if the will was made prior to marriage and does not make provision for the surviving spouse that is greater than the survivor would have received if the decedent had died intestate. Notably, this statute affects only “wills” and testamentary trusts that are created by wills. However, Section 7710.2 provides that “rules of construction that apply . . . [to] testamentary trusts also apply as appropriate to the provision of inter vivos trusts.”

The Probate Code contains a similar provision at § 2507(2) that invalidates a will or testamentary trust in favor of an estranged spouse after a divorce action has been commenced (under certain circumstances).

The trial court in Kulig held that Section 2507(3) granting a statutory share to the survivor of a decedent who made no provision for his spouse in a premarital will, would equally apply to a premarital grantor trust. The children of Mr. Kulig’s first wife complained that it was judicial activism, unwarranted by the statute and decades of precedential law.

Without getting deeply into probate law, the children of Mr. Kulig argued that the Probate Code contains detailed rules of constructions for various categories of property, such as probate estates, testamentary trusts, revocable grantor trusts, and irrevocable trusts. Imposing the interpretation of the trial court in this case would alter the statutory scheme without evidence of legislative intent. Section 7710.2 contains the phrase “as appropriate,” giving the courts discretion to apply the statutory share only in certain circumstances.

The surviving spouse and trial court relied upon the legislative comments under § 7710.2, which refer to the Uniform Trust Code and its comments. The UTC Comment to § 7710.2 notes that revocable inter vivos trusts are commonly used as a will substitute, and this “functional equivalence” is why the rules of construction for wills should also be applied to revocable inter vivos trusts.

These comments were convincing, in the eyes of the Superior Court. In the interest of consistency, the Court held that § 2507(3) of the Probate Code should override the provisions of a premarital inter vivos trust to the same extent as it would a premarital will or testamentary trust. The phrase “as appropriate” grants discretion only when the express language of the instrument is unclear, or intervening circumstances render it unclear. The Court then examined the holdings reached in other states where this issue was considered. No cases were found to be on point. The trial court’s decision was affirmed.

Contracting Party Who Assumed Risk Could not Rescind Marital Settlement Agreement for Mutual Mistake

In Orris v. Orris, No. 340 WDA 2015 (September 30, 2015), a non-precedential decision, the husband and wife entered into a marital settlement agreement after Wife procured an appraisal of the timber rights associated with marital property. In the agreement, Husband surrendered the timber rights to Wife in exchange for the marital residence. Subsequently, after the divorce was finalized, Husband presented a petition to rescind the agreement on the grounds of mutual mistake, claiming that the appraisal was inaccurate. The trial court held that it did not have jurisdiction to open, modify or vacate the divorce decree and settlement agreement (which the trial court deemed to be merged in the decree).

The Superior Court began by holding that the agreement was not merged, but merely incorporated in the divorce decree. As such, it was enforceable as a contract unless there were traditional grounds for rescission or modification of a contract. Mutual mistake is one of the traditional grounds.

Next, the Superior Court examined §§ 152 and 154 of the Restatement (Second) of Contracts, dealing with mutual mistake. A contract may not be rescinded, under § 154, if the party seeking rescission “bears the risk” of a mistake. A party is deemed to have borne the risk if the risk is allocated to him or her under the agreement, if the party makes the contract with limited knowledge of the relevant facts, or if the circumstances dictate that the party should bear the risk.

The Superior Court held that husband bore the risk of mistake by failing to obtain his own appraisal of the timber rights. Having declined to obtain his own appraisal or inquire into the assumptions and methodology of Wife’s appraiser, he could not rescind the contract on the basis of mutual mistake.

Post-Settlement Reconciliation Does Not Abrogate Settlement Agreement

In Semulka v. Semulka, No. 1302 WDA 2014 (August 31, 2015), the Superior Court in a non-precedential opinion considered whether a marital settlement agreement could be enforced after a former husband and wife reconciled their marriage, and then broke up again.

More specifically, Husband and Wife signed an agreement after Wife filed a divorce action, and in that agreement, Husband was obligated to pay $40,000 cash to Wife in three payments over four years. Before the divorce was finalized, Husband and Wife resumed cohabitation for nearly a year. Still, their decree in divorce was issued shortly before the end of the four year period in which Husband’s payments came due.

Husband made none of the contractually-required payments. Wife filed an enforcement action, seeking payment of the $40,000, half of the children’s college expenses, and legal fees (which were authorized by the settlement agreement). The trial court granted Wife’s request, giving Husband 90 days to comply. Husband filed an appeal to the Superior Court.

In his appeal, Husband argued that Pennsylvania should adopt the equitable doctrine of “abrogation,” which renders the unexecuted portion of a marital settlement agreement void when the parties reconcile. The Superior Court declined the invitation, noting that our courts already distinguish between separation agreement and postnuptial (settlement) agreements. The subject agreement in this case contained the hallmarks of a final settlement agreement, and under our case law (Vaccarello, Carosone), settlement agreements are not extinguished by a subsequent marital reconciliation.

Clearly, the marital reconciliation in this case was different from that in Vaccarello. In that case, Husband and Wife resumed cohabitation six months after signing their agreement, and they lived together harmoniously for twelve years before their final separation. The divorce was filed after the subsequent separation, and in the divorce action, Wife raised claims for division of marital property contrary to the terms of the “Separation and Property Settlement Agreement” signed by the parties twelve years earlier. There were 12 days of hearings to determine the validity of the agreement, after which the trial court held that it was enforceable.

The Superior Court reversed the finding of enforceability, holding that the agreement was a mere separation agreement and lacked full and fair disclosure. The Supreme Court eventually reversed the Superior Court and restored the trial court’s decision. Central to the Supreme Court’s analysis was Ray’s Estate, a 1931 precedent involving a separation agreement. The Supreme Court held that an agreement which is comprehensive in scope is more likely to be a final settlement agreement that cannot be abrogated by a subsequent marital reconciliation.

Examining the Vaccarellos’ agreement, the Supreme Court held that it was comprehensive in scope; and it was compelling evidence that Husband had subsequently made a will while cohabiting with Wife in which he referenced her waiver of testamentary rights under the settlement agreement. Similarly, the agreement of the Semulkas was comprehensive.

The Supreme Court in Semulka disagreed with the Superior Court’s reliance on Carosone, another reconciliation case. In Carosone, the Superior Court had voided an agreement that provided a temporary reconciliation would not void the agreement. The parties in that case cohabited for over six years after signing the agreement. The Superior Court in Carosone inferred that a long term reconciliation would void the agreement – and in Semulka, the Superior Court held that the parties had experienced a long term reconciliation (11 months).

The Supreme Court disagreed, finding that the Semulkas’ agreement did not require them to live separate and apart, but merely authorized them to do so. Accordingly, the Court could not reasonably infer that a long term separation was intended to abrogate the agreement.

Divorced stepparent who sought custody is responsible for child support

An evolving definition of family is challenging our courts to consider who may legally participate in child-rearing, and who is financially responsible.  The Supreme Court of Pennsylvania took a step on December 29, 2015, by issuing its opinion in A.S. v. I.S., 108 A.3d 1280 (2015).  In its majority opinion, the Court held that a step-parent who vigorously litigated for custody rights (even though he was not biologically related to the child, and had not adopted) could be held liable for child support. One of the Justices dissented.  Notably, at the time of the decision, there were only five Justices in office, of which four participated in the case.  The majority opinion was supported by the author and two other Justices; the dissent was an individual Justice.  There are seven Justices when the Court is fully staffed.

The mother of twin sons married a man who was not their father when the boys were 7 years old.  Mother and stepfather were married in their native country, Serbia; and the children’s father stopped seeing them shortly afterward.  Stepfather did not adopt the boys but acted in a parental role during the short marriage, which lasted for just four years.  The biological father came back into the children’s lives after the mother and stepfather separated.

Mother decided to move to California in order to take the bar exam and start her career.  Stepfather attempted to block her by filing a complaint for custody and emergency petition to prevent relocation of the children. On a temporary basis, the Montgomery County court prohibited mother from moving the children, and granted temporary partial custody to the stepfather (who was pursuing a divorce from mother).

Mother contested stepfather’s standing to pursue custody, while stepfather argued that he stood in loco parentis. After a full custody hearing, the trial court granted shared legal custody and equal physical custody to mother and stepfather.  Mother’s request for relocation to California was denied.

While the custody action was proceeding, Mother filed a child support action against stepfather.  The hearing officer dismissed the action, reasoning that stepfather had no legal duty. Mother filed exceptions, which were dismissed by the trial court. Both the hearing officer and trial court cited case law holding that stepparents are not liable for child support.  The Superior Court affirmed.

In his majority opinion, Justice Max Baer weighed the lower courts’ decisions against mother’s argument: that the court may hold a stepparent financial responsible, even if the stepparent has not adopted the child, in a narrow case where the stepparent has vigorously sought custody rights.  The precedent for this principle was L.S.K. v. H.A.N., 813 A.2d 872 (Pa.Super.2002), in which a same-sex partner of children conceived through alternative reproductive technologies was held liable for child support. Justice Baer reviewed this case as presenting a novel question never before considered by the Supreme Court.

The laws that govern child support do not define “parents,” the Court observed, and the laws that are related to child support do not supply adequate definitions, he held.  “Rather, courts have looked to whether a nonparent has taken affirmative steps to act as a legal parent so that he or she should be treated as a legal parent.”  Justice Baer then referenced the opinion that he previously issued in K.E.M. v. P.C.S., where he held that adults who act like parents should be precluded from denying paternity if that would be in the child’s best interest.

Having concluded that stepparents who seek legal rights may be held financially responsible, Justice Baer agreed with the mother that the child support guidelines would apply in calculating the magnitude of the obligation. The case was remanded to Montgomery County for a determination of child support.

The dissenting opinion of Justice Saylor argued that the majority opinion supported a loose interpretation of precedent; and that it failed to impose the same heavy burden that stepparents must carry to win custody rights.

What is almost as interesting as the opinion is this question: would the Court have reached the same result if the case had been held for 2 more days, when three new Justices were sworn in?  Perhaps time will tell.

Pennsylvania Supreme Court to Hear Constitutional Challenge to Grandparent Visitation

This month, the Supreme Court of Pennsylvania accepted a custody case involving a constitutional challenge to the grandparent custody law.  In D.P. and B.P. v. G.J.P. and A.P. (Ponko), No. 25 WAP 2015, the custody case bypassed the Superior Court, going straight up to the Supreme Court after a Westmoreland County trial court held that the grandparent custody statute was unconstitutional.

Under the current law (23 Pa.C.S. § 5325), in effect since 2011, grandparents have standing to pursue visitation or partial custody of their grandchildren if the parents have filed a divorce action or have been separated for six months.  Under case law, this standing has been extended to grandparents of children whose parents were never married. Pennsylvania law gives parents a distinct advantage over grandparents, creating a rebuttable presumption in favor of parents, and requiring grandparents to overcome the presumption by clear and convincing evidence. 23 Pa.C.S. § 5327(b).

Prior to 2011, the custody law restricted standing to cases in which grandparent visitation “would not interfere with the parent-child relationship.”  Additionally, the court was required to consider “the amount of personal contact between the parents or grandparents of the party and the child prior to the application.”  That language was omitted from the 2011 version of the grandparent custody statute.

The constitutionality of the prior grandparent standing law (23 Pa.C.S. § 5312) was upheld by the Pennsylvania Supreme Court in 2007, by a slim margin of 4-3.  In Schmehl v. Wegelin, 927 A.2d 183 (Pa.2007), four Justices of the Supreme Court (led by Justice Saylor) pointed out that the Equal Protection Clause does not prohibit legislative classifications that treat people differently, if there is sufficient justification.  When a fundamental right is implicated, the court must apply a strict scrutiny test, and the state must show a compelling government issue.  The grandparents in that case asserted that the state has a compelling interest in protecting health and emotional welfare of children, and particularly children who lack the safety net of an intact family structure.  The Supreme Court in Schmehl noted that a similar argument was successfully made in Hiller v. Fausey, 904 A.2d 875 (Pa.2006).

The majority in Schmehl collapsed their Equal Protection and Due Process analyses into a hybrid that avoided the strict scrutiny test.  The U.S. Supreme Court had done the same when addressing grandparents’ rights in Troxel v. Granville, 530 U.S. 57 (2000).  Instead the Court granted judges the power to balance parental rights on a case-by-case basis.  This same approach was later adopted by the Pennsylvania Supreme Court in Hiller and Schmehl.

In Ponko, the Westmoreland County trial court distinguished these decisions, holding that the state’s parens patriae interest might be sufficiently compelling to justify government interference when a parent has died, but not sufficient to grant visitation to grandparents over the objections of living parents.  This same rationale fueled a vigorous dissent by Justices Baldwin and Castille in Schmehl.

Ponko might actually test the Pennsylvania Supreme Court’s position on this issue, which is interesting given the recent election of three new Justices.  Whether or not one agrees with the outcome, it is a well-written decision that will require thoughtful analysis and spark a worthy debate.


Sherri Shepherd decision confirms surrogacy contract in Pennsylvania

In re Baby S., 2015 Pa.Super. 244 (November 23, 2015)

Sherri Shepherd, one of the hosts of the ABC-TV daytime talk show “The View,” and her ex-husband Lamar Sally were married for just over a year when they arranged a surrogate to bear their second child.  Having previously given birth to a child who was 15 weeks premature (by her first husband), Sheppard was deemed to be incapable of a natural pregnancy, so she purchased eggs from an anonymous donor and hired a gestational carrier.  The embryo created by the donor’s egg and Sally’s sperm was implanted in the carrier’s uterus in November 2013.  A successful pregnancy was confirmed two weeks later, and a twenty-week ultrasound was conducted in March 2014.  Up to this point, everything had gone smoothly — except for the marriage of Shepherd and Sally.

According to the gestational carrier agreement, Shepherd was required by the 20th week of pregnancy to begin the legal process paving the way to be named as the child’s mother on its birth certificate.  To this date, Pennsylvania does not have a statute or procedural rules governing surrogacy, but an earlier Superior Court decision (J.F.v.D.B.,897 A.2d1261 (Pa.Super.2006)) has upheld the validity of a surrogacy contract.  Furthermore, the Pennsylvania Department of Health publishes procedures for assisted conception birth registrations.  Prior to the child’s birth, the intended parents are required to obtain a court order declaring them as the child’s parents; and file a supplemental report containing information about the intended parents.

Despite giving her assurances and expressing gratitude to the gestational carrier — right up to the 20 week ultrasound — Shepherd refused to sign a petition to be named as the child’s mother prior to the birth (as she had agreed in her surrogacy contract).  The gestational carrier then filed a petition to declare Shepherd and Sally — who were then divorcing — as the child’s parents on its birth certificate, and seeking reimbursement of legal fees.

Before the court could rule, the child was born, and a birth certificate was issued, naming the carrier as the child’s mother.  Mr. Sally assumed custody and moved to California with the child, where he applied for medical assistance because Shepherd did not add the child to her medical insurance.  Shepherd had no contact.  The gestational carrier received a medical bill from the Philadelphia hospital where the child was born, and a notice from the California child support agency regarding her potential liability for support.

Shepherd responded to the carrier’s petition to declare parentage with new matter alleging that the surrogacy contract was unenforceable, as well as a counterclaim for breach, specific performance and counsel fees.  After two days of hearings, the Montgomery County trial court held that Shepherd and Sally were the legal parents of Baby S.  The trial court held that Shepherd had breached the surrogacy contract and was liable for the carrier’s legal expenses under the terms of the contract. Shepherd filed an appeal, raising two issues:



Combining the issues, the Superior Court acknowledged the lack of any statute explicitly acknowledging the validity of surrogacy agreements.  Yet, the Court refused to infer that the General Assembly intended to prohibit them, just because a legislative initiative in 2005 failed to pass.  The Court acknowledged that J.F. was a custody action in which the carrier was held to have no standing, and did not address parentage.  And, the Court rejected the notion that parentage may be established in one of only two ways: by genetics/biology, or by adoption.

Shepherd argued that the gestational carrier contract was void as against public policy, because it circumvented the Adoption Act (which requires a termination of parental rights) and compensated the carrier monetarily for relinquishing custody of a child.  The Superior Court aligned itself with the trial court, which had relied on Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007).  In Ferguson, the Supreme Court affirmed an oral agreement between a mother and sperm donor who surrendered his parental rights in exchange for a release from support obligations.  The Supreme Court in Ferguson held that a contract cannot be found to violate public policy unless there is evidence in the form of statutes and precedents that express and amplify the policy.  There is insufficient support in the law of Pennsylvania, the Court held in Ferguson, to establish that alternative reproductive technology is contrary to public policy.

The Superior Court thus held that Shepherd failed to meet her burden to prove the existence of a public policy that her surrogacy contract violated.  The Court also noted that neither genetics/biology nor adoption were appropriate avenues to determine parentage in this case.  The gestational carrier was not genetically related to the child, nor did she have parental rights to be terminated in an adoption.

News reports indicate that Shepherd will continue to pay $4,100 per month child support.

Cyber Civil Rights Project Helps Victims of Revenge Porn

If a nude or explicit picture or video of you has been shared publicly by your ex-spouse or boyfriend/girlfriend, without your consent, there may be legal help available.

Revenge porn is defined as a form of sexual abuse that involves the distribution of nude or sexually explicit photos or videos of an individual without their consent.  Typically, when spouses or intimate partners break up, one of them distributes explicit photos or videos that were shared privately, with the expectation of keeping them confidential.  In an age of Instagram and Snapchat, revenge porn has become a common phenomenon, so much so that Pennsylvania has enacted criminal and civil liability laws to address the problem.

Title 18 of Pennsylvania Consolidated Statutes, Section 3131, creates a second degree misdemeanor for unlawful dissemination of an intimate image with intent to harass, annoy or alarm a current or former intimate partner.  Consent is a defense to this crime.  The law was enacted in the fall of 2014, and within the first six months, eleven individuals were criminally prosecuted for distributing nude selfies of their exes, according to the Pittsburgh Tribune-Review.

Additionally, some victims may seek monetary damages, particularly if revenge porn has caused the loss of employment, damage to one’s business reputation, or other harms.  When revenge porn occurs during a marital separation or divorce, the financial consequences may be addressed in combination with other family law issues.

A prominent Pittsburgh-based law firm has sponsored a Cyber Civil Rights Project to assist victims of revenge porn who qualify for pro bono representation.   Separated and divorced spouses who are threatened with revenge porn may also call Pollock Begg for legal help and referrals.

Father’s Inheritance Justifies Child Support Guideline Deviation

E.R.L. v. C.K.L., 2015 Pa.Super. 220 (October 19, 2015)

In this published decision, the Superior Court examined a child support order in which the trial court had granted an upward deviation from the guidelines, and ordered the father to pay his share of all extracurricular activities in which the children might participate.  The Court affirmed, holding that Father’s inheritance, while not counting as income for support purposes, justified an child support guideline deviation; and the directive to pay for extracurricular activities did not divest Father of his legal custody rights.

Mother and Father were the parents of three children ranging from ages 3 to 9 years old. Father was a police officer who was placed on administrative leave after a PFA order was entered against him; and then terminated from his employment. Mother was assessed with an earning capacity for 25 hours per week, perhaps because of her custodial responsibilities to the preschool aged child.  At the conference level, an interim support order of $1,458/month was entered.  Father requested a de novo hearing.

The trial court, in a de novo proceeding, applied a stipulated $76,440 earning capacity for Father and part-time earning capacity for Mother. The basic child support guideline for three children was approx. $1,350 per month.  The trial court added two upward deviations.  First, the trial court found that Father had access to approx. $600,000 in inheritance that he received during the course of the litigation. The trial court granted an upward deviation of $575 per month.  Next, the trial court ordered Father to pay an additional $349 per month for extracurricular activities, for a total of $2,267 per month.

On appeal, Father argued that his inheritance should not have been considered in setting his child support obligation. The Superior Court held that, while the principal portion of an inheritance cannot be counted as income, see 23 Pa.C.S. § 4302, Humphreys v. DeRoss, 790 A.2d 281 (Pa.2002), it could justify a guideline  deviation under Pa.R.C.P. 1910.16-5.  The Superior Court held that the trial court did not err by failing to address each of the nine criteria under that Rule individually.

Notably, the Superior Court was not swayed by Father’s argument that he should be permitted to preserve his inheritance to generate income that would reduce his need to work.

Next, Father argued that the trial court abused its discretion when it ordered him to pay eighty percent of all future activities in which his children might participate, because doing so would deprive him of his legal custody right to decide which activities were appropriate.  Father argued that he preferred to limit the children to one activity per season, but Mother enrolled them in any activity they desired.  Father’s complaint fell upon deaf ears, however.  The Superior Court held that Father should take up his argument in custody court instead.

If you need legal assistance with child support issues in Western Pennsylvania, send me a message:


Failure to Report Income Results in Retroactive Child Support Award (12+ years)

When divorced or unmarried parents who owe child support fail to report their income to the court, the consequences can be severe.  That’s what happened in Cortes v. Cortes (non-precedential), No. 624 WDA 2014 (Pa.Super., September 3, 2015).  The mother and father in this case were divorced in Texas in 2000 after a twenty year marriage.  There was a child support order running in Allegheny County, where mother moved with the children upon separation.  The Texas divorce proceeding left the Pennsylvania child and spousal support order in tact, and Allegheny County retained its jurisdiction.  Immediately after the child support order was final, father obtained employment at the Milton Hershey School, where he worked for the next dozen years until 2012.  Father never reported his employment, or the raises he received periodically, to the Pennsylvania courts.

In 2012, Mother filed a petition for alimony in Pennsylvania (because she could not receive it in Texas, as that state does not recognize alimony). She also requested modification of child support, due to father’s failure to report his income.  The hearing officer determined child and spousal support arrears for the period from 1999 to 2000 (when the divorce was final), and child support thereafter, for a total of more than $54,000.  Mother filed exceptions because the master imputed an earning capacity to her for the retroactive period, and denied her claims for post-divorce alimony and counsel fees.  Her exceptions were denied.

On appeal, mother argued that she should not have been assigned an earning capacity because her religious beliefs as a Seventh Day Adventist required her to home-school the children, leaving no time for paid employment.  The trial court found mother’s testimony to be less than credible, as she has previously enrolled one of the children in a Texas public school.  The trial court’s decision was affirmed.

Next, mother argued that the trial court should have considered the tax benefit that father received when he claimed the children as dependents on his income tax returns.  Because the trial court did not address this issue in its opinion, the Superior Court remanded.

The Court  also held that mother’s claim for post-divorce alimony was properly denied, both because she did not prove actual need and because the Texas court did not explicitly reserve jurisdiction for the Pennsylvania court to hear that claim, as it did for child support and custody.

Finally, the Court reversed the trial court’s denial of legal fees.  Citing the relevant statutes (23 Pa.C.S. 3703 and 4351), the Superior Court held that mother’s ability to pay legal fees was inferior to father’s, and his deliberate concealment of his income was responsible for the costly litigation.  The Superior Court directed the trial court to determine the portion of mother’s legal fees that were related to the retroactive modification of child support, and enter an order compelling father to pay them.

Undisclosed Trust Distributions May Justify Retroactive Child Support Modification

Parents who receive trust distributions may have a duty to disclose the amount and source, even if the trust distributions do not necessarily constitute income for child support purposes.  That’s one of the issues raised by Eisenman-Gomez v. Gomez, No. 1596 WDA 2014 (August 11, 2015), a recent decision of the Superior Court that should have been published, but wasn’t.

In Eisenman-Gomez, the mother of two minor children failed to disclose nearly $500,000 in distributions that she received from a trust established by her mother from 2007 to 2009.  During that time period, Mother sought and received child support based on her stipulated income of $25,000 per year.  During a support modification proceeding in 2010, Mother testified that she had withdrawn money in 2009 from a family trust account which had been established by her grandfather “when she was a little girl,” but she did not reveal the $500,000 in distributions from her mother’s trust.

In 2013, when the trust distributions came to light in another modification proceeding, the trial court ordered the support master to consider them with the following directive: “The court directs the parties and the Master to Mencer v. Ruch, 928 A.2d 294 (Pa. Super. 2007). Therein, the Superior Court held that distributions from a trust were to be considered as income for child support purposes.” Subsequently, the judge held: “[D]istributions from the trust that mother received might be treated as if it were in the nature of an inheritance and, therefore, should only be used as a reason for deviating from the support guideline amount as noted in Humphreys v. DeRoss[,790 A.2d 281 (Pa. 2002)]. The money received may not necessarily be considered as income for support purposes. Therefore, the hearing officer shall take testimony regarding the source of receipt.”  Thus, the trial court highlighted an important legal nuance when considering trust distributions in child support proceedings: that trust income distributions may be considered as income, but distributions of trust principal are merely grounds for guideline deviation.

During the ensuing hearing, Mother offered the testimony of a CPA, who testified that she could not distinguish in this case between trust income and principal in the distributions received by Mother.  The trial court therefore held that the distributions must be deemed to be gifts (trust principal), inheritance, or a hybrid — all of which are not income for support purposes.  On appeal, Father argued that the burden should have been Mother’s to demonstrate that the distributions were derived solely from trust principal if she wished to shield them from her support obligation.

The Superior Court disagreed, holding that it was Father’s burden in support modification proceedings to demonstrate a change in circumstances warranting modification.  He had not offered an expert opinion or other evidence to prove that the trust distributions were derived wholly or in part from trust income, so the trial court was correct in assuming they were from principal.  Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super. 2012).

Still, one must wonder whether the Superior Court’s decision was correct.  As the party having exclusive control of the evidence pertaining to the trust, shouldn’t Mother have sustained the burden of proving the source of her trust distributions?  And, didn’t Father by proving that Mother received and concealed the trust distributions, sustain his burden of showing a change in circumstances?  Perhaps the Superior Court in this case confused the burden of proving a change in circumstances with the burden of proving the amount and nature of a party’s incomes, which are separate issues.

The opinion also addresses Father’s request for retroactive modification, which was denied because Father failed to act promptly when he learned of Mother’s trust distributions (and perhaps also, tacitly, because the Court did not include the distributions in her income); Father’s request for a downward guideline deviation, which was denied because Mother’s trust distributions did not affect Father’s ability to pay child support to her; and Father’s request that the court assign a greater earning capacity to Mother, which he did not substantiate with evidence at trial.