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Weekly updates on family law topics by Brian C. Vertz | Partner
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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.

Do you need a prenup to deal with frozen eggs?

Women who are contemplating IVF, ZIFT, surrogacy and other alternative reproductive techniques (ART), and their parenting partners, should seriously contemplate their need for a pre- or post-nuptial agreement or cohabitation agreement, in order to determine how the frozen embryos will be used, stored or disposed in the event of a divorce or breakup.  In vitro fertilization (IVF) is a fertility treatment in which sperm and eggs are combined in a lab, with the resulting pre-embryos being transferred to the woman’s uterus, where they grow into a baby.  Zygote intrafallopian transfer (ZIFT) is similar procedure involving the implantation of zygotes, or fertilized eggs that have begun to grow.  Some couples elect to freeze their embryos or eggs, in a process known as cryopreservation. Couples may choose these ART methods because of fertility issues or serious health conditions that interfere with childbearing.  Others hope to stop the biological clock, preserving their genetic material to improve their chances of conceiving a healthy baby later in life.  In each of these situations, men and women should consider what will happen with the frozen eggs or embryos if they are not used.

In 2012, the Pennsylvania Superior Court decided how to dispose frozen embryos after a husband and wife divorced, awarding the embryos to Wife to use at her discretion.  In that case, the wife was diagnosed breast cancer and had her fertilized pre-embryos frozen (while husband and wife were harmoniously married) before undergoing extensive surgery, radiation treatment, and chemotherapy.  Husband and wife subsequently divorced, and wife testified that her highest priority in life was to have children before she died, even if she were no longer married to the man who would be involuntarily fathering her children.  The Superior Court held that the women’s interest in having children was greater than the man’s interest in refraining.  Similar cases have come before the state supreme courts in Tennessee, New Jersey, Iowa, and Massachusetts.

Generally, couples who have their eggs or embryos frozen must sign contracts with their fertility center, which may or may not contain policies on the care, use and disposal of genetic materials.  Yet, too often these contracts are incomplete or difficult to enforce, lacking details on how embryos and eggs may be used after a divorce or breakup, and who will pay for their care.  A pre- or post-nuptial agreement can effectively deal with these future possibilities.  Some couples do not wish to destroy their eggs or pre-embryos for religious or moral reasons. Cryopreserved materials may be donated to other couples, given to medical research, or allowed to thaw without donating.  They also might become useful for stem-cell medical treatment in the future.  However the materials might be used or disposed, it is a decision that couples should make before they are faced with an adversarial divorce or breakup.  Call our lawyers if you think you might need an agreement to resolve these issues.

Corporate Successor Not Marital Property Following Post-Sep Business Failure

There is often suspicion when a business that would be marital property fails shortly after marital separation, particularly if the owner spouse subsequently starts a new business.  This is the situation that the Superior Court addressed in its recent opinion, Weisman v. Weisman, Nos. 1471 EDA 2014 (July 14, 2015), a non-precedential decision.

Husband was the founder of PRN Healthcare Services, a company that provided skilled and non-skilled nursing care in Montgomery County.  The company was created during the Weismans’ lengthy marriage and prior to their separation in 1999. Shortly after the marital separation, PRN defaulted on its business loan, which was secured by the marital residence, resulting in its foreclosure.  As PRN was winding down its operations, a white knight (Reliance Home Healthcare) was formed by a third party, who hired Husband and assumed many of PRN’s accounts.  Wife argued that, as in Gioia v. Gioia, 555 A.2d 1330, 1334- 35 (Pa. Super. 1989), her husband’s interest in a corporate successor was a marital asset.

In this case, however, Husband did not own an interest in Reliance and denied that it was a successor.  The trial court agreed after hearing extensive testimony and evidence.  On appeal, Wife argued that Reliance must be a successor because it became immediately profitable despite its owner’s complete lack of experience, that PRN’s employees and accounts were responsible for the success of Reliance, and Reliance traded on the goodwill of PRN by using its phone number and advertising its years in business.

The Superior Court refused to overturn the trial court’s findings, stating that Wife’s appeal was merely an invitation to reconsider the credibility of Husband and other witnesses.  Interestingly, the Court remarked that “an expert report on the valuation of PRN—in particular its goodwill or going concern value—would have been useful to the trial court and to this Court in assessing the legitimacy of Appellant’s claim.” It’s not clear what impact such evidence might have had, if in fact the company had had transferable goodwill prior to separation, but perhaps husband might have been found guilty of dissipating a valuable marital asset.

Divorces involving privately-held businesses are some of the most complex and interesting cases that come before the family court.  Pollock Begg has assembled a team of lawyers with experience in handling complex divorces for business owners and their spouses.  Make an appointment to meet with one of our partners today.

Same-Sex Couples Need Prenups before Marriage

Same-sex couples who are getting married after spending many years in committed relationships may need prenuptial agreements even more than new couples who are just starting out.  That’s the conclusion I’ve reached after contemplating the ramifications of the U.S. Supreme Court’s recent decision in Obergefell v. Hodges, ___ U.S. ____ (June 26, 2015).

In Obergefell, the U.S. Supreme Court held that all Americans have a fundamental right, protected by the U.S. Constitution, to be married.  The opinion of Justice Anthony Kennedy, writing for a 5-4 majority of the Court, was simple and elegant because it concentrated on what we all agree upon.  It didn’t waste time chewing on disagreements. We all agree that marriage and family are the foundations of society. The right to marry is a fundamental right guaranteed by the U.S. Constitution, and every state must recognize a legally valid marriage issued by another state.

When a fundamental constitutional right is restricted for some people by a legislative or executive act, there must be a compelling reason and the restriction must be narrowly tailored.  Measured by this standard, the Defense of Marriage Act (or DOMA) did not pass muster.

So why should same-sex couples who have been involved for years in committed relationships get prenups before they marry? They need prenups to ensure that their entire relationships, not just the post-June 26, 2015 portion, will be considered by the courts for estate planning, divorce, tax and other legal reasons.  When couples marry without a prenup, the courts might not recognize the true duration of their relationship or the property they acquired before they were officially married.  It might be difficult for our courts to reach an equitable result in a divorce, estate or tax dispute without recognizing the entire duration of the relationship.

Long-term couples who are just now getting married may also need to update their wills, property deeds, insurance beneficiaries, and other legal documents.  And, they may need to untangle trusts, civil unions, adoptions, or other legal mechanisms that they were forced to use before marriage became a legal possibility.  My law firm has handled these issues and is capable of addressing the needs of same-sex couples who are getting married.  Call me today before you say “I do.”

Emotional Connection Does Not Guarantee Award of Marital Residence

According to the old saying, “possession is nine-tenths of the law.” Perhaps that’s true in some context, but in a Pennsylvania divorce decision that was recently published by the Superior Court, possession of a marital home during separation did not dictate the outcome.  In Markle v. Markle, No. 968 WDA 2014 (June 22, 2015)(non-precedential), the marital home was occupied by the wife during the separation period.  During the master’s hearing on equitable distribution, the husband argued that he had invested his time in repairing and improving the home.  Perhaps more persuasively, he testified that he would have the financial ability to refinance the mortgage loan in his own name, relieving the wife of any liability.  The master awarded the marital residence to husband instead of wife, who also wanted the home.  The trial court adopted this portion of the master’s recommendation.

On appeal, the wife argued that the home should have been awarded to her because of special needs.  The Superior Court reviewed case law in which special needs were considered, such as a spouse who had installed access ramps to accommodate a wheelchair, or a spouse who operated a child care business in the home.  Yet, the Superior Court dismissed the wife’s appeal in this case, finding that she did not present evidence of special needs. Wife had lived in the home with the children, resided three doors down from her ailing father, and spotted the home during her childhood, but these were not compelling reasons to overturn the court’s decision to award the house to the husband.  Notably, Wife had testified at an earlier stage of the divorce that she was ambivalent about keeping the house, and might be willing to sell it.

Market Risk in Dividing Retirement Assets upon Divorce

Divorcing spouses in Pennsylvania might be well-advised to consider the risks associated with various retirement vehicles, as they decide which assets to retain or divide in equitable distribution.  A recent non-precedential decision of the Superior Court, Wyatt v. Wyatt (No. 1228 MDA 2013, June 11, 2015), illustrates this point.

In Wyatt, one of the spouses had a railroad pension that would pay a guaranteed monthly annuity over the employee spouse’s lifetime.  By contrast, the other spouse had a 401-K plan.  Upon equitable distribution, the 401-K spouse asked the trial court to divide both retirement plans, so that each spouse would have a guaranteed benefit as well as a retirement account that would be exposed to the risks and rewards of the securities market.

The trial court declined, finding that the railroad employee could keep his entire pension, and giving equal assets to the other spouse.  The Superior Court affirmed, on the principle that immediate offset distribution is favored (as opposed to deferred distribution, or QDROs).

A good financial planner would probably recommend a healthy mix of slow-growing but guaranteed investments (like annuities) as a hedge against market-influenced investments that might be more volatile.  Perhaps it might be time for the court to give this a second look.

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.