pfl december 08 - Pennsylvania Bar Association > Home · PDF fileDECEMBER 2008 PENNSYLVANIA FAMILY LAWYER 202 EDITOR-IN-CHIEF David S. Pollock CO-EDITORS ... laughter, except when

Pennsylvania

LawyerFamily

DECEMBER 2008VOLUME 30 ISSUE NO. 4

IN THISISSUEFROM THE CHAIR............................201

EDITOR’S COLUMN ........................202

CASE NOTES

1. B.K.B. v. J.G.K. ................................203

2. Hopkins v. Byes ..................................205

3. Style v. Shaub ....................................208

4. Mescanti v. Mescanti ........................211

5. In re: R.P. ..........................................213

6. R.C. v. J.S. ........................................215

7. Ottolini v. Barrett ..............................217

8. Williams v. Williams ..........................219

TECHNOLOGY CORNER ................220

LEGISLATIVE UPDATE ..................222

PROSE ..................................................225

NEW YORKER CARTOON ..............225

SIDEBAR ..............................................226

SECTION NEWS ................................227

LEGAL EAGLE COMPILATION ....228

CHILDREN’S PLAYROOMS IN THE

COURTS ..............................................229

MEETING PHOTOS ..........................230

UPCOMING MEETINGS ..................239

FROM THE CHAIRBy Carol A. Behers, Esq.

[email protected]

The Winter Meeting of the

Section will be held Jan. 16-18, 2009,

at the Omni William Penn in

Pittsburgh. The Program Committee,

co-chaired by Gail Calderwood and

Darren Holst, has been working hard

to plan the sessions. A diverse group

of topics will be covered on Saturday,

including Hot Tips in Complex

Support and Equitable Distribution,

Ethics in Collaborative Law, Parent

Coordination, Use of GALS and

Child Advocates in family law, and

E-discovery and related family

issues. We are pleased to have collab-

orated with the ADR Committee and

the Children’s Rights Committee for

programming. Sunday morning will

feature our case law, legislative, and

rules updates in a town hall setting. It

is a great

opportunity to

earn up to 9

CLE credits

(including 1

ethics) and to

socialize with

c o l l e a g u e s

from across

the state.

The Eric Turner Award will be

presented, and Justice Max Baer

will be the keynote speaker during

Saturday’s lunch. BNY Mellon has

again generously agreed to be the

premier sponsor for the meeting.

Special thanks to Neil Brown and

Ron Clark of BNY Mellon. Please

keep them in mind when your clients

have investment/financial services

needs.

I attended the Section and

Committee Day Leadership breakfast

on Oct. 29 in Camp Hill. Many sec-

tions and committees were represent-

ed. The Family Law Section was rec-

ognized by PBA President Dale

McClain for our efforts in growing

our membership, as well as our out-

Carol A. Behers is a principal in thePittsburgh law firm of Raphael,Ramsden & Behers, P.C., Chair of thePBA Family Law Section; Past Chairof the Allegheny County BarAssociation Family Law Section; anda member of the Supreme CourtDomestic Relations Procedural RulesCommittee. (continued on Page 202)

Carol A. Behers, Esq.

standing CLE and the attendance at our meetings. Leaders of

the committees and sections expressed concern about finan-

cial issues, and exchanged ideas on how to reduce costs.

PBA Executive Director Barry Simpson reiterated the asso-

ciation’s commitment to its members, even during difficult

economic times.

I am looking forward to representing the Section at the

PBA Midyear meeting in St. Thomas, U.S. Virgin Islands in

February. Cheryl Young, Section First Vice Chair, will pres-

ent at one of the substantive law programs.

The Section also presented an Outreach to the Cambria

County Bar Association on Dec. 5 in conjunction with their

holiday social. Mary Schellhammer coordinated this effort,

and other participants included Joe Martone, Nick Mikesic,

Ken Horoho, Randi Silverman and me. Special thanks to

Mary for all her help in making this happen. We hope to

sponsor another Outreach in the spring in the eastern part of

the state. The Membership Committee is working on new

projects to grow and sustain the membership. We also wel-

come hearing from individual members.

The Rules and Legislative Committees have also been

very active addressing topics such as the alimony amend-

ments, Guidelines, Appellate Fast Track Rules and other

issues that impact family law.

Hoping all of you and your families enjoyed a joyous

holiday season and wishing you peace and prosperity in

2009. I look forward to seeing you in Pittsburgh.

Thanksgiving has come and gone. And Chanukah,

Christmas and New Year’s will soon be here. Rita and I have

very much enjoyed seeing and being with Adam, Michal,

Josh and Alicia during these holiday times. We are blessed

with a wonderful family and we know it. We wish you all a

happy and healthy holiday season and New Year. In these dif-

ficult times the multiple wars, worldwide economic chaos,

troubled local and national economy, personal portfolio

destruction, political turmoil and uncertainty and confusion

about the future should make us all fall back on the sources

of our greatest and lasting security: our families, our commu-

nities and our religious institutions. Let us hope for good

health for all ...

Your much supportive and faithful members of the PBA

Family Law Section, its Council and Officers, and especial-

ly its fine staff including our Section’s liaison, Michael

Shatto, our meetings planner, Janell Klein, and our editori-

al assistant, Lisa Granite, are a comfort and make us very

pleased to be apart of such a great and responsive organiza-

tion. Often lawyers take the various bar associations and law-

related organizations for granted. In the PBA Family Law

Section we have CLE, fellowship, travel, referrals and that

extra brain to rely, as well as the Pennsylvania FamilyLawyer. On behalf of the Editorial Board, we all wish you

good health, happiness and success.

Once again there are great casenotes organized by

David L. Ladov and Lori K. Shemtob:

a. B.K.B. v. J.G.K. – Stephanie H. Winegrad

b. Hopkins v. Byes – Amy J. Phillips

c. Style v. Shaub – Cheryl B. Krentzman

d. Mescanti v. Mescanti – Darren J. Holst

e. In re: R. P. – Christina M. DeMatteo

f. R.C. v. J.S. – Scott L. Levine

DECEMBER 2008

PENNSYLVANIA FAMILY LAWYER

202

EDITOR-IN-CHIEF

David S. Pollock

CO-EDITORS

Harry M. Byrne Jr./Benjamin E.Orsatti David L. Ladov/Lori K. Shemtob

William L. Steiner/Jay A. Blechman Gerald L. Shoemaker Jr.

Founder/Former Editor-in-Chief Former Editor-in-Chief

Jack A. Rounick Hon. Emanuel A. Bertin

Former Associate Editors: Gary J. Friedlander, Caron P. Graff

Published by the Pennsylvania Bar Association in conjunction with the Family

Law Section as a service to the profession. Mailing Address: Pennsylvania Bar

Association, 100 South St., P.O. Box 186, Harrisburg, Pa. 17108. Telephone: 1-

800-932-0311 or (717) 238-6715.

From time to time, the Pennsylvania Family Lawyer will publish articles that it

receives for submission. The views expressed in those articles are solely those of

the authors of the articles and do not reflect the views or policies of the editors,

the Pennsylvania Family Lawyer, the Family Law Section or the Pennsylvania

Bar Association, and no endorsements of those views should be inferred there-

from.

©2008 by the Family Law Section of the Pennsylvania Bar Association.

FROM THE CHAIR COLUMN

(continued from Page 201)

(continued on Page 203)

EDITOR’S COLUMNBy David S. Pollock, Esq.

[email protected]

David S. Pollock is a co-founder of the Pittsburgh firm ofPollock Begg Komar Glasser L.L.C., Editor-in-Chief of thePennsylvania Family Lawyer, Past Chair of the PBA FamilyLaw Section and current Chair of the ACBA Family LawSection and Treasurer of the Pa. Chapter of AAML.

B.K.B. v. J.G.K. v. M.M.K.

954 A.2d 630 (Pa. Super. 2008)

The Superior Court once again upheld the doctrine of

paternity by estoppel in the case of B.K.B. v. J.G.K. v.

M.M.K. In her concurring opinion, Judge Lally-Green urged

the General Assembly to adopt legislation to address this

issue, rather than deferring the decision to the slowly evolv-

ing body of jurisprudence.

In 1998, J.G.K. (Husband) and M.M.K. (Mother) sepa-

rated (the parties divorced in 2000). On Oct. 14, 1999,

Husband filed a Petition seeking primary physical custody of

K.J.K. (child) and Z.G.K (not at issue in the case). On July

22, 2002, after a hearing, Mother was granted custody of the

two minor children.

On Sept. 2, 2005, Husband filed a Petition requesting

primary physical custody of the children, arguing the

Mother’s second marriage was failing and she was in an

active relationship with B.K.B. (alleged biological father).

Husband feared that Mother was going to inform the child,

who was 8 years old, that B.K.B. was his biological father.

After the hearing, but prior to a decision, B.K.B. filed a

Petition to Intervene in the custody matter requesting partial

physical custody of the child. In his Petition, B.K.B. alleged

that DNA testing revealed that he was the biological father of

the child and that the marriage of Husband and Mother was

no longer intact. Before ruling on the Petition, the trial court

granted Husband primary custody of the children. In its

order, the Court specifically prohibited Mother from allow-

ing B.K.B. to be present during her period of custody.

g. Ottolini v. Barrett – Michael E. Bertin

h. Williams v. Williams – Elizabeth Billies

And most importantly, we are repeating the Christmas

issue tradition of prose by Penn State University Dickinson

School of Law Professor Robert L. Rains, the technology

shopping guide by Technology Guru Joel B. Bernbaum and

another New Yorker cartoon (which we began publishing in

the fourth quarterly issue of the Pennsylvania Family Lawyerafter the World Trade Towers were brought down). A little

humor, a bigger smile and a big laugh are great anecdotes for

what can ail us. As Woody Allen wrote, “I am thankful for

laughter, except when milk comes out of my nose.” But Kurt

Vonnegut wrote, “Laughter and tears are both responses to

frustration and exhaustion. I myself prefer to laugh, since

there is less cleaning up to do afterward.” And, for all of us,

Alan Alda says it best, “When people are laughing, they’re

generally not killing each other.”

DECEMBER 2008


203

EDITOR’S COLUMN



Case Notes:David L. Ladov, Esq., Co-Editor, [email protected]

Lori K. Shemtob, Co-Editor, [email protected]

PATERNITY BY ESTOPPEL

BY STEPHANIE H. WINEGRAD, ESQ.

David L. Ladov is a partner in the West Conshohocken officeof the law firm of Cozen O’Connor, Case Notes Editor of thePennsylvania Family Lawyer and Immediate Past Chair ofthe PBA Family Law Section. Lori K. Shemtob is a partner inthe Blue Bell law firm of Shemtob & Shemtob and a memberof the Council of the PBA Family Law Section.

Stephanie H. Winegrad is an associate in the Doylestownfirm of Law Offices of Jeffrey M. Williams, P.C., and a mem-ber of the Bucks County and Pennsylvania Bar AssociationFamily Law Sections.

On Dec. 13, 2005, Mother appealed the decision to the

Superior Court. On Dec. 20, 2005, Husband filed a Motion

to Dismiss the Petition to Intervene. The trial court declined

to decide the pending Petition to Intervene and the Motion to

Dismiss, opining that it lacked jurisdiction, as Mother

appealed the custody order. On appeal, the Superior Court

quashed Mother’s appeal and remanded the case to the trial

court. The Superior Court held that the trial court’s order was

not final, since there was in fact the pending Petition to

Intervene and Motion to Dismiss.

On remand, the trial court denied B.K.B.’s Petition to

Intervene on the basis of the doctrine of paternity by estop-

pel. B.K.B. appealed the decision to the Superior Court. In

support of his appeal, B.K.B. argued that estoppel was not

applicable in the instant case, as neither Mother or Husband

denied that he was the biological father of the child. Further,

B.K.B. never denied he was the child’s father and supported

the child both emotionally and financially.

In its opinion, the Superior Court provided an overview

of the case law in paternity cases. Specifically, in Brinkly v.King, 701 A.2d 176 (Pa. 1997), the Pennsylvania Supreme

Court set forth the analysis required to determine the pater-

nity of a child conceived or born during a marriage:

“Th[e] ... essential legal analysis in these cases is two

fold: first, one considers whether the presumption of paterni-

ty applies to a particular case. If it does, one then considers

whether the presumption has been rebutted. Second, if the

presumption has rebutted or is inapplicable, one then ques-

tions whether estoppel applies. Estoppel may bar either a

plaintiff from making the claim or a defendant from denying

paternity. If the presumption has been rebutted or does not

apply, and if the facts of the case include estoppel evidence,

such evidence must be considered. If the Trier of fact finds

that one or both of the parties are estopped, no blood tests

will be ordered.”

The policy underlying the presumption of paternity is

the presumption of marriage. In the instant case, there is no

longer an intact family or a marriage to preserve.

Accordingly, the Superior Court held that the presumption

was inapplicable.

Second, the Superior Court considered whether B.K.B.

was estopped from challenging the paternity of the child. Our

Supreme Court held as follows:

“… estoppel in paternity actions is merely the legal

determination that because of a person’s conduct (e.g., hold-

ing out the child as his own or supporting the child), that per-

son, regardless of his true biological status, will not be per-

mitted to deny parentage nor will the child’s mother who par-

ticipated in such conduct be permitted to sue a third party for

support by claiming that the third party is the true father. The

doctrine of estoppel in paternity actions is aimed at ‘achiev-

ing fairness between the parents by holding them, both moth-

er and father, to their prior conduct regarding the paternity of

the child.’ ” Fish v. Behers, 741 A.2d 721 (Pa. 1999).

The Superior Court held that the doctrine of estoppel

will not apply when evidence establishes that a father failed

to accept the child as his own either by holding the child out

or support the child. In Jones v. Trojak, 634 A.2d 201 (Pa.

1993), Mother sought child support from a third party who

she claimed was the father of her child. The Superior Court

held that the doctrine did not apply since there was no evi-

dence that Husband acted as the child’s father or that Mother

treated Husband as the child’s father. Accordingly, Mother

was permitted to sue the child’s biological father for support.

Contrary to the Jones case, the Mother in the instant case

assured Father that he was the child’s biological father.

Husband was named as the child’s father on the birth certifi-

cate, school records and coached his Little League games.

Further, the child was covered on Husband’s medical insur-

ance and used Husband’s last name. At no point did Father

fail to accept the child as his own. In fact, Husband only

became aware that paternity was an issue during the custody

hearing in 2005, which was eight years after the birth of the

child. Husband and the child had already formed a father-son

relationship. The Superior Court held that it was not in the

best interest of the child to force a parenting relationship with

M.K.B., who has been presented as a “family friend.” The

Court cited Brinkly, once again, “estoppel is based on the

public policy that children should be secure in knowing who

their parents are. If a certain person has acted as the parent

and bonded with the child, the child should not be required

to suffer potentially damaging trauma that may come from

being told that the father he has known all his life is not in

fact his father.” Accordingly, the Superior Court in the instant

case held that B.K.B. was estopped from asserting that

Husband is not the biological parent of the child.

B.K.B. next argued that the trial court erred by refusing

to hear DNA evidence establishing B.K.B. as the child’s bio-

logical father. The Superior Court reiterated its holding that

the doctrine of estoppel is applicable and therefore the results

of the DNA test are irrelevant.

In his final argument, B.K.B. argues that the doctrine is

inapplicable because Mother misled both Husband and

B.K.B by allowing each to believe he was the child’s biolog-

ical father and received financial assistance from both of

them. The Superior Court dismissed B.K.B.’s argument. The

testimony was clear that Mother deceived Husband, not

B.K.B., who was aware that he was the child’s father since

birth. He chose to wait until the child was 8 years old, after

two custody hearings, to claim he was the biological father.

In the absence of fraud of Mother against B.K.B., the


DECEMBER 2008


204

CASE NOTES


HOPKINS v. BYES

954 A.2d 654 (Pa. Super. 2008)

In its July 30, 2008, decision, the Pennsylvania Superior

Court (Bender, Gantman & Tamilia, J.J.) found that Mother

violated the parties’ Consent Custody Agreement by interfer-

ing with Father’s custody rights even though Father failed to

exercise his rights of custody from Thanksgiving Day 2006

through Jan. 29, 2007, approximately two months. The

Superior Court, per Tamilia, J., further concluded that the

directive that Mother pay Father counsel fees in the amount

of $500 was appropriate as there was no requirement that the

trial court first determine Mother’s ability to pay those fees.

Consequently, the Superior Court affirmed the trial court’s

finding of contempt and imposition of counsel fees as a sanc-

tion in its entirety.

Mother (Sonya F. Byes) and Father (John E. Hopkins)

are the parents of one minor child, Johnathan, born on Dec.

28, 1997. The parties entered into a Consent Custody

Agreement on Jan. 31, 2006, that provided in part for a holi-

day schedule with the child including Thanksgiving Day,

Christmas and the child’s birthday.1 The Erie County trial

court’s record reflects that Father did not exercise physical

custody of Johnathan from Thanksgiving Day 2006 through

Jan. 29, 2007.2 Not surprisingly, the trial court’s record fur-

ther reflects that each party’s recollection and/or reasoning as

to why Father did not exercise physical custody of Johnathan

during that period is different. Father maintains that Mother

interfered with his rights of custody and Mother asserts

Father chose not to exercise his rights of custody.

According to Mother’s testimony, Father contacted her

on Thanksgiving Day 2006 to discuss their exchange of cus-

tody of Johnathan for the Thanksgiving holiday. In the past,

Mother had exercised custody of Johnathan on Thanksgiving

Day until 4:00 p.m., when Father picked up the child and

returned him to Mother at 9:00 p.m. on that day. In 2006,

however, Mother’s birthday fell on the day after

Thanksgiving; when Father contacted Mother to make

arrangements for the holiday, Mother requested that Father

delay his period of custody to 6:00 p.m. so that she could cel-

ebrate her birthday with the child and extended family mem-

bers. Father refused, demanding that Mother relinquish cus-

tody of the child at 4:00 p.m. as prior practice had established

due to the fact that his family was scheduled to have their

holiday dinner at 4:30 p.m. Mother refused to compromise

and both parties became angry. Out of anger directed at

Mother, Father ultimately chose to forgo his period of cus-

tody of Johnathan on Thanksgiving Day 2006.

As Father then testified, he did not telephone Mother

again about custody arrangements pertaining to their son

until the Saturday following Thanksgiving Day 2006. On

that morning, Father telephoned Mother in anticipation of his

period of custody and asked Mother if Johnathan could spend

Superior Court held that B.K.B was estopped from using

fraud refute the applicability of the doctrine of estoppel.

CASE NOTE AUTHOR’S EDITORIAL COMMENTS:

This case is the most recent of the evolving case law

addressing paternity of a child born during marriage. It is

amazing, considering the advances in technology over the

years, that the appellate courts remain unwilling to allow

DNA testing in certain instances. In refusing to accept DNA

evidence of paternity in these cases, the courts focus on the

potential adverse effect on the child if he learns his true bio-

logical parentage. If a child will be harmed by learning that

his father is not his biological parent, the appellate courts are

only delaying the point in time when the child will be

harmed. It is inevitable that the child will at some point learn

that the father he has known for most of his childhood is not

his true biological father. Allowing DNA evidence to deter-

mine paternity does not necessarily translate to a transfer of

custody rights. Interestingly, the appellate courts have

expanded custody rights of third parties so that persons other

than biological parents have standing to sue for custody of a

minor child. In many instances, the courts grant third parties

significant custody rights.

DECEMBER 2008


205


CASE NOTES


FATHER’S FAILURE TO EXERCISE CUSTODY DOES NOT EXCUSE

MOTHER’S FAILURE TO FOLLOW PARTIES’ CUSTODY ORDER

BY AMY J. PHILLIPS, ESQ.

Amy J. Phillips is a Senior Associate in the York Law firm ofHoffmeyer & Semmelman, L.L.P. and a member of the PBAand York County Bar Association Family Law Sections.

the night in his home that evening. Mother refused.

Consequently, Father again chose not to exercise his custody

rights of Johnathan on either that Saturday or the following

day, Sunday.

Father also failed to exercise custody of Johnathan from

the Sunday after Thanksgiving through Jan. 29, 2007. When

questioned by the Erie County Judge Dunlavey why Father

did not exercise custody of the child during this time-frame,

particularly over Christmas and the child’s birthday (Dec.

28), Father testified that he attempted to reach Mother sever-

al times by calling her from both his home and cellular tele-

phones without success. Father indicated that Mother never

answered his telephone calls and the child did not return his

calls either. Contrary to Father’s testimony, Mother testified

that Father never telephoned her to discuss custody arrange-

ments for Johnathan over Christmas, his birthday or other-

wise from the Saturday after Thanksgiving Day 2006

through Jan. 29, 2007. When specifically questioned about

Father’s custody rights over Christmas and the child’s birth-

day, Mother stated “no show, no call, no gifts, nothing.”

In the interim between Thanksgiving and Christmas

2006, Father filed a Petition for Contempt of the parties’

Consent Custody Agreement alleging Mother refused to

allow Father to exercise his custody rights on Thanksgiving

Day 2006 and, in part, to ensure that he would be able to

exercise the agreed-upon Christmas schedule.3 The trial

court, however, did not conduct a hearing on Father’s

Petition for Contempt until Jan. 29, 2007. At the hearing, the

parties testified to the events surrounding Father’s failure to

exercise custody or Mother’s interference with custody of

Johnathan as set forth above. In light of their contradictory

statements regarding Father’s attempts to exercise custody

over the Christmas holiday, the trial court directed the parties

to provide their home and cellular telephone records. In its

order requesting the parties’ telephone records, the Court

also questioned Mother’s failure to allow Father to see the

child on Thanksgiving Day 2006 and Father’s failure to then

exercise his rights of custody from Thanksgiving 2006

through Jan. 29, 2007.

On July 24, 2007, after Father had submitted his cellular

telephone records and Mother had submitted her cellular

telephone records, the trial court issued its order finding

Mother in contempt and directing her to pay counsel fees to

Father in the amount of $500. In its order, the trial court

noted that Father’s cellular telephone records supported his

claim that he attempted several times to arrange to exercise

custody of his son through Mother.4 From this Order, Mother

filed a timely appeal arguing that the evidence presented to

the trial court did not support a finding of contempt and that

the trial court further erred in assessing counsel fees as a

sanction without first considering her ability to pay those

fees.5

In support of her appeal, Mother argued to the Superior

Court that she had submitted her cellular telephone records

but not her land telephone records, just as Father had, and

there was no evidence suggesting that Father had contacted

her on either Christmas Day or the child’s birthday to arrange

for time with Johnathan. As further support for her claim that

she was not in violation of the parties’ Consent Custody

Agreement, Mother emphasized that she could not be found

in contempt of that Agreement when Father chose not to

exercise the rights of custody awarded to him by that

Agreement.

Affirming the trial court’s order, the Superior Court

found that Father had demonstrated by a preponderance of

the evidence6 that Mother had violated the terms of the par-

ties’ Consent Custody Agreement even though Father had not

exercised his periods of custody on Thanksgiving Day 2006

and Christmas Day 2006. The Superior Court held that

Mother failed to contradict Father’s allegations of contempt

citing the following excerpt from the trial court’s opinion:

“The Court has no duty to compel Father to exercise his cus-

todial time with Johnathan. But, Mother has a duty to follow

the custody order and encourage Johnathan to spend time

with Father. Father’s decision not to follow through with vis-

itation on or around Christmas and Johnathan’s birthday,

while insensitive, is not a defense to Mother’s actions. (N.T.

Jan. 29, 2007 Custody Contempt, pp. 11, 14)[.] Therefore,

the Court finds Mother’s refusal to permit Johnathan to visit

or call Father during Christmas and his birthday to be a vio-

lation of the custody order.”

The parties’ conflicting testimony demonstrated that

Father attempted to exercise his custody rights over the

Thanksgiving Day 2006 holiday to no avail. Father’s cellular

telephone records demonstrated that he attempted to contact

Mother approximately four (4) times prior to Christmas 2006

to arrange for custody of his son to no avail. The trial court,

and hence the Superior Court, found that Mother’s cellular

telephone records did not depict that she had responded to

Father’s efforts to arrange for custody of Johnathan.

Therefore, neither the trial court nor the Superior Court was

in a position to find that Mother encouraged Johnathan to

spend time with Father and, therefore, Mother was in viola-

tion of the parties’ Consent Custody Agreement. While nei-

ther the trial court nor the Superior Court condoned Father’s

decision to forgo his custody rights as a result of his difficul-

ties trying to communicate with Mother, Mother’s actions,

nevertheless, were contemptuous in that she failed to act in

good faith to mutually arrange custodial time between Father

and Johnathan despite Father’s efforts to do so.

DECEMBER 2008


206

CASE NOTES



DECEMBER 2008


207

Mother also argued on appeal that the trial court erred in

directing her to pay counsel fees in the amount of $500 to

Father as a sanction for violating the parties’ Consent

Custody Agreement without first determining if Mother had

the ability to pay those counsel fees. Mother was directed to

pay the award of counsel fees within 90 days of the date of

the trial court’s order. In support of her contention, Mother

relied on the Superior Court’s decision in Hyle v. Hyle, 868

A.2d 601 (Pa. Super. 2005), which involved an incarcerated

father’s failure to pay support. In the Hyle case, the Superior

Court found that the trial court had erred in directing the

incarcerated father to pay $2,500 as a purge amount for fail-

ure to pay a child and spousal support order without first

assessing whether the incarcerated father had the ability to

pay that amount. Thus, the Hyle case was remanded for a

finding of “what conditions will be sufficiently coercive yet

enable [the incarcerated father] to comply with the order.”

Rejecting Mother’s argument that the trial court was

obligated to first assess her ability to pay counsel fees as a

sanction, the Superior Court distinguished the Hyle case

finding that a party’s failure to comply with a custody order

to be different from a party’s failure to comply with an order

for support.7 Having found no controlling case law, the

Superior Court relied on the reasoning of the trial court,

which was expressed as follows:

“[I]t has been [the trial court’s] experience that awarding

attorney fees often motivate[s] the losing party to refrain

from continuing contemptible conduct. Here, as indicated by

Mother’s appellate counsel’s May 17, 2007, letter, since the

contempt hearing, “the visitation schedule has been going

very well and there have not been any further complications

with the custody matter.

“[The trial court] cannot compel both parties to like each

other, but it can encourage them to try and work together in

the best interests of Johnathan.”

In conjunction with the above reasoning, the Superior

Court directed the parties’ attention to 42 Pa. C.S.A. § 2503,

which permits an award of counsel fees as a means of penal-

izing a party’s “dilatory, vexatious and obdurate behavior.”

The Superior Court further found that the trial court’s intent,

in part, in awarding counsel fees to Father in the amount of

$500 was to encourage cooperation regarding custody of

Johnathan between the parties and that this appeared to have

worked. Thus, the Superior Court concluded that the trial

court did not abuse its discretion in directing Mother to pay

counsel fees in the amount of $500 to Father without first

considering her ability to pay an award of counsel fees.

Based on the reasoning set forth above, the Superior

Court concluded that the trial court neither abused its discre-

tion or erred as a matter of law in finding Mother in contempt

of the parties’ Consent Custody Agreement or in assessing

Mother with Father’s counsel fees in the amount of $500

payable within 90 days of its order.


The Hopkins v. Byes decision is important in two

respects. First, this decision establishes a precedent that a

parent cannot rely on the other parent’s failure to exercise his

or her rights of custody as a basis to violate an Order for

Custody or otherwise interfere with the other parent’s cus-

tody rights of the child(ren). In the Hopkins case, the con-

temptible action is Mother’s failure to respond and/or act in

good faith with respect to Father’s efforts to schedule his hol-

iday custody rights with the child by either answering or

returning Father’s telephone calls as well as her perceived

indifference toward encouraging a relationship between

Father and the child. It is also obvious that the parties in this

matter were following an open-ended custody schedule, at

least with respect to the holidays. One cannot help but won-

der if both the trial court and Superior Court would have

reached the same conclusion that Mother was in violation of

the custody order in a situation where the order in question

clearly delineated a schedule with precise times for both par-

ties to have on the holiday such that there was no need for

arrangements by “mutual agreement.” By way of example, if

the facts were changed in Hopkins such that the parties’

Consent Custody Agreement specifically provided that

Father would have the child from 4:00 p.m. through 9:00

p.m. on Thanksgiving Day, is Mother in contempt if Father

chooses not to exercise that period of custody because the

parties disagreed over changing Father’s period of custody?

Given the factual scenario set forth in the Hopkins decision,

the application of the principles espoused by the Superior

Court in future contempt actions will likely depend on the

facts and circumstances of a particular case as it is presented

to the family law practitioner.

The Hopkins decision is also important in the sense that

it establishes a “standard” for the assessment of counsel fees

as a sanction or punitive measure in a custody contempt set-

ting. The Hopkins court analogizes the award of counsel fees

in a custody contempt setting to that set forth in 42 Pa.

C.S.A. § 2503, which provides for the recovery of counsel

fees when a party has engaged in dilatory, vexatious and/or

obdurate conduct. Where else other than a custody contempt

situation can one’s conduct be dilatory, vexatious and obdu-

rate without question? A parent’s failure to abide by the pro-

visions of a custody order is unmistakably a dilatory, vexa-

tious and obdurate hurdle to the other parent in trying to

maintain a relationship with his or her child(ren) once the

parents have separated and/or divorced. Further, the motiva-

CASE NOTES



STYLE v. SHAUB

955 A.2d 403 (Pa. Super. 2008)

In Style v. Shaub, the Superior Court (Ford Elliott,

Donohue and Popovich, JJ) rejected Lancaster County Judge

Gorbey’s determination that Mother was equitably estopped

from raising a claim for post-majority support when the orig-

inal support order was terminated pursuant to Rule

1910.19(e), but affirmed the decision to dismiss the post-

majority child support claim based on insufficient evidence

to rebut the presumption that a parent’s child support obliga-

tion ends upon the child reaching majority.

Factual and Procedural History

Sharon Style (Mother) and Ronald Shaub (Father) had a

child, Dustin Shaub (Son), in 1987. For most of his life, Son

has had various psychiatric and medical disabilities, and has

been diagnosed with ADHD, ODD, dysthymia (chronic

depression) and Atypical Autism. Although it is unclear

tion behind the award of counsel fees is to encourage parents

to abide by custody orders and work together amicably.

Therefore, it makes no sense to impose qualifications or

requirements for the imposition of such a sanction, which

qualifications and/or requirements would only derogate from

the punitive nature of a counsel fees award in a custody con-

tempt setting.

1 The parties’ Consent Custody Agreement provided that

“[t]he parents shall share Thanksgiving Day and Christmas

Day; the times shall be by mutual agreement[,]” and [t]he

term ‘mutual agreement’ contemplates good faith discussion

to reach an agreement. ...” The Superior Court’s opinion does

not specify the parties’ agreement with respect to sharing

custody on Johnathan’s birthday. Additionally, there was no

definitive evidence that the parties’ birthdays were included

in their Consent Custody Agreement or that there was a prior

practice to share custody of Johnathan on their (the parties’)

birthdays.2 Father chose not to exercise custody until Jan. 29,

2007, as this was the date on which a hearing was ultimately

held on Father’s Petition for Contempt of the parties’

Consent Custody Agreement filed on Dec. 15, 2006. 3 Also, on Dec. 15, 2006, Father filed a Petition to

Modify Custody, which was addressed at a Conciliation

Conference on Dec. 27, 2006. At the Conciliation

Conference, the parties reached an agreement to resolve their

custody dispute, which amended agreement was adopted as

an Order of Court on Jan. 31, 2007, just days after the par-

ties’ contempt hearing.4 The trial court also noted in its July 24, 2007, Order

that Mother had apparently experienced difficulty in obtain-

ing her home telephone records for submission to the court

due to poor recordkeeping by Verizon and in spite of a sub-

poena directed to Verizon. 5 Procedurally, on Feb. 29, 2008, the Superior Court of

Pennsylvania directed the trial court to file an opinion sup-

porting its decision, which the trial court complied with on

May 28, 2008. The parties were then afforded additional time

to respond, which Mother did on June 3, 2008. Father did not

file a reply brief.6 See Hyle v. Hyle, 868 A.2d 601 (Pa. Super. 2005) (stat-

ing that the complaining party must demonstrate by a pre-

ponderance of the evidence that the other party violated a

court order to sustain a finding of contempt), appeal denied,

890 A.2d 1059 (Pa. 2005). The Hyle decision also sets forth

that an appellate court, here, the Superior Court, may only

reverse a finding of contempt upon a showing that the trial

court abused its discretion by misapplying the law or “exer-

cise[ing] its discretion in a manner lacking reason.” 7 Contempt of Support Orders is governed by 23 Pa.

C.S.A. § 4345.

DECEMBER 2008


208

CASE NOTES



Cheryl B. Krentzman is an associate in the State Collegeoffice of McNees, Wallace & Nurick L.L.C., and is a memberof the PBA Family Law Section, the Centre County BarAssociation, the Dauphin County Bar Association and theWilkinson-Campbell American Inn of Court.

TERMINATION OF CHILD SUPPORT ORDER PURSUANT TO RULE 910.19(e)

DOES NOT AUTOMATICALLY BAR A LATER CLAIM FOR POST-MAJORITY

SUPPORT

BY CHERYL B. KRENTZMAN, ESQ.

exactly when his problems began, Son’s disabilities predated

his 18th birthday.

Pre-Majority Child Support OrderIn 1999, when Son was 12 years old, Mother and Father

separated and Mother began to receive child support pur-

suant to an order established through the Lancaster County

Domestic Relations Office (Pre-Majority Order). Son turned

18 in January 2005 and he graduated from high school in

July 2005. In conjunction with these events, the Lancaster

County Domestic Relations Office issued a notice to Mother

pursuant to Pa.R.C.P. 1910.19(e) stating that the Pre-

Majority Order would be terminated unless Mother notified

that office that there was a reason to continue the support.

Having not received a response from Mother or Son, the Pre-

Majority Order was terminated on July 14, 2005.

Post-Majority Claim for Child SupportThe record indicates that from approximately July 2005

until September 2006, Son held three separate jobs with

varying degrees of success. Ultimately, in September 2006,

Son enrolled in a residential institution specializing in voca-

tional training for disabled individuals. On Oct. 25, 2006,

over one year after the Pre-Majority Order terminated,

Mother filed a new Complaint for Support on Son’s behalf

(Post-Majority Claim). Son’s pre-existing psychiatric and

medical disabilities were the basis for the Post-Majority

Claim, as Mother asserted that these conditions prevented

Son from maintaining employment sufficient to support him-

self.

Evidentiary Hearing Initially the trial court dismissed the Post-Majority

Claim outright, but then granted an evidentiary hearing at

Mother’s request. At the hearing, the trial court heard of

Son’s long history of disabilities. Mother testified that Son

had an unsuccessful work history, that Son requires full-time

supervision, and that Son is unemployable and cannot live on

his own. Son’s vocational evaluator from the residential

institution also testified at the hearing, and stated, in part, as

follows:

● Son demonstrated adequate oral communication skills,

but lacked initiative, motivation and was easily distracted;

Medication might alleviate the distractions;

● Son was able to perform a variety of physical tasks;

● Son worked slowly but consistently;

● Son performed a satisfactory amount and quality of

work with some supervision; and

● Son was courteous and cooperative.

The vocational evaluator’s report indicated that Son

reads at an eighth-grade level, does mathematics at a ninth

grade level and has an IQ of 78. Ultimately, the vocational

evaluator stated that Son was in need of rehabilitative assis-

tance and gave Son a “guarded diagnosis for successful entry

in the workforce.”

Trial Court Dismissal of the Post-Majority ClaimFollowing the hearing, the trial court dismissed

Mother’s Post-Majority Claim on two grounds. First, the trial

court found that Mother was estopped from raising the Post-

Majority Claim because she and Son failed to respond to the

1910.19(e) notice. Second, the trial court found that even if

properly raised, the Post-Majority Claim should be denied

because Mother and Son failed to present sufficient evidence

to rebut the presumption that because he reached majority,

Son was able to engage in profitable employment at a sup-

porting wage. The trial court recognized Son’s difficulties in

his past employment but stated that poor employment choic-

es, rather than an inability to work, were the cause of those

problems. The trial court also stated that the evidence did not

demonstrate a lack of supporting wage employment opportu-

nities for which Son is qualified and in which he might suc-

ceed.

Superior Court Decision

In assessing whether the trial court committed an abuse

of discretion or an error of law, the Superior Court, per Judge

Donohue, rejected the trial court’s determination that Mother

was estopped from raising the Post-Majority Claim, but ulti-

mately affirmed the decision of the trial court on the merits.

A Procedural Issue of First Impression: Impact of Failure toRespond to Rule 1910.19(e) Notice

After noting that all prior Superior Court decisions

regarding post-majority child support relate to either an unin-

terrupted continuation of support or to a first request for sup-

port, the Superior Court considered, as a matter of first

impression, the impact of Mother’s failure to respond to the

Rule 1910.19(e) notice on her subsequent Post-Majority

Claim. The Superior Court classified Rule 1910.19(e) as a

“house-keeping” rule that is in place to prevent the continu-

ation of support once children reach majority. The rule

requires Domestic Relations to send an “emancipation

inquiry” within one year from the date the child will reach

18. This inquiry seeks information regarding whether the

child support should be continued, such as whether any spe-

cial needs exist. In the event that a response to the inquiry is

not received or if grounds are not asserted to justify the con-

tinuation of support, the trial court may automatically termi-

nate the pre-majority order. In applying Rule 1910.19(e) to

DECEMBER 2008


209


CASE NOTES


the instant facts, the Superior Court determined that the trial

court’s termination of the Pre-Majority Order was proper.

In analyzing whether Mother was equitably estopped

from raising a Post-Majority Claim on behalf of Son after the

Pre-Majority Order was properly terminated pursuant to

Rule 1910.19(e), the Superior Court refused to engage in a

discussion of the general applicability of the doctrine of equi-

table estoppel to this issue. Instead, the Superior Court

explained that in order to find estoppel, a party must demon-

strate detrimental reliance. Having found that Father offered

no evidence of detrimental reliance, the Superior Court

reversed the trial court’s finding that Mother was equitably

estopped from raising the Post-Majority Claim.

The Standard Governing Post-Majority Claims for SupportThe Superior Court also seized the opportunity to reiter-

ate the standard governing claims for post-majority support.

The following provides a step-by-step breakdown of the

legal roadmap set forth by the Superior Court in the analysis

of this post-majority claim for child support:

● Step One: Upon the child reaching majority (the later

of turning 18 or graduating from high school), a presumption

arises that the duty to support the child terminates. Blue v.Blue, 532 Pa. 521 (1992); 23 Pa.C.S.A. § 4321(3);

Commonwealth ex rel. O’Malley v. O’Malley, 161 A.883 (Pa.

Super. 1932).

● Step Two: If the child becomes disabled after reaching

the age of majority, the presumption cannot be rebutted.

Overseers of Mount Pleasant v. Wilcox, 12 Pa.CC. 447 (Pa.

Quar. Sess. 1893).

● Step Three: If the disability preventing the child from

being self-sufficient existed at the time the child reaches

majority, the adult child can rebut the presumption. Hansonv. Hanson, 625 A.2d 1212 (Pa. Super. 1993).

● Step Four: To rebut the presumption, the adult child

has the burden of proving that the disability prevents the

child from being self-supporting as assessed by a two-part

test:

Part 1: Whether the child is physically and mentally able

to engage in profitable employment, and

Part 2: Whether employment is available to the child at

a supporting wage. Hanson v. Hanson, 625 A.2d 1212 (Pa.

Super. 1993).

In the instant case, the Superior Court found that Son’s

conditions predated the time he reached majority, so the issue

became whether Son met the burden to overcome the pre-

sumption. In applying part 1 of the test, the Superior Court

found that the trial court’s determination that Son did not

present sufficient evidence to prove that he is unable to

engage in profitable employment was adequately supported

by the record. Similarly, with regard to part 2 of the test, the

Superior Court agreed with the trial court that the lack of evi-

dence presented by Son prevented a determination that Son

could not find employment at a supporting wage. The

Superior Court specifically stated that they were forced to

reach this decision due to the lack of evidence regarding the

types of jobs Son could perform, the reasonable compensa-

tion that could be expected from these jobs, the availability

of the relevant jobs in the local area, and whether the com-

pensation Son could receive would enable him to support

himself. Because the trial court completed this analysis with

regard to the Post-Majority Claim for support, the Superior

Court affirmed the decision despite the rejection of the trial

court’s determination of the procedural impact of Mother’s

failure to respond to the Rule 1910.19(e) notice.


This case presents a legal cliffhanger — what happens

when the obligor produces evidence to show detrimental

reliance on the termination of the original support order pur-

suant to Rule 1910.19(e)? The Superior Court states general-

ly that when adult children have pre-majority disabilities, a

post-majority claim for support should not be dismissed as a

matter of law, but declines to assess the overall applicability

of the doctrine of equitable estoppel to this issue. The reality

is that there may never be an obligor who can assert a col-

orable equitable estoppel claim in these circumstances. This

is because in order to even reach an equitable estoppel claim

based on the termination of the pre-majority order, the dis-

ability will have existed prior to the child reaching majority,

a support order will have previously governed, and a signif-

icant time period will have passed prior to the assertion of the

post-majority claim (without the passage of time, detrimen-

tal reliance would be difficult to prove). In situations where

the disability is severe enough to satisfy the two-part test to

rebut the presumption of termination of support and give rise

the need for the equitable estoppel claim, it is unlikely that

either 1) the custodial parent or disabled child will allow a

lengthy lapse in support to occur, or 2) a court would find

credibility in the obligor’s reliance on the termination of the

pre-majority order as a sufficient basis for the obligor to

believe that the disabled child no longer required support in

light of the extent of the disability. Moreover, it is unclear

what facts an obligor could even assert to prove detrimental

reliance — the purchase of a new house, retirement, the deci-

sion to have another child? While these events may operate

to reduce a post-majority support obligation, it is a stretch to

imagine that they would nullify the obligation outright.

DECEMBER 2008


210


CASE NOTES


MESCANTI v. MESCANTI

956 A.2d 1017 (Pa. Super. 2008)

In this protection from abuse (PFA) action from the

Court of Common Pleas of Chester County, a panel of the

Pennsylvania Superior Court (Ford Elliott, Allen and Kelly,

J.J.) analyzed whether the trial court, the Hon. Edward

Griffith, abused its discretion in entering a PFA order despite

the absence of evidence establishing physical injury, and

whether the evidence, as a whole, demonstrated a course of

conduct possible of placing a party in fear for his or her safe-

ty. Ultimately, the Superior Court affirmed the decision of

the trial court finding the evidence more than sufficient that

Appellant, William M. Mescanti (Husband), engaged in a

course of conduct, not only in the form of threats on the night

in question, but also an historical pattern of intimidation and

harassment, that placed the Appellee, Elizabeth Mescanti

(Wife), in reasonable fear of bodily harm. Bodily injury is

not a necessary prerequisite to a finding of abuse.

On Oct. 9, 2007, after a verbal altercation two days ear-

lier, Wife filed a PFA petition against Husband, and the trial

court entered a temporary order affording her, among other

things, protection, exclusive possession of the marital resi-

dence and primary physical custody of the minor children.

An evidentiary hearing on Wife’s PFA petition was held on

Oct. 19, 2007, after which the trial court entered a final,

three-year PFA order prohibiting Husband from contacting

Wife. The court maintained Wife’s exclusive possession of

the home and confirmed temporary primary physical custody

with her; Husband received supervised visitation pending

further custody proceedings. Husband took a timely appeal

to the Superior Court wherein he asserted three issues, two of

which essentially challenged the sufficiency of the evidence

from which the trial court concluded he had engaged in

“abuse” as defined by the PFA statute. Husband’s final issue

centered on his belief the trial court impermissibly curtailed

his ability to cross-examine Wife as to her motive for filing

the petition.

The Superior Court, per Judge Allen, commenced its

analysis by noting that, in PFA actions, the Superior Court

reviews the trial court’s legal conclusions pursuant to the

stringent abuse of discretion standard. Only where the trial

court commits and error or law or engages in an abuse of dis-

cretion is relief appropriate. Further, it restated the well-

established principle that witness credibility and the specific

weight to be accorded to such testimony is within the sole

province of the fact finder. Mindful of such axioms, the

Superior Court considered Husband’s points of error.

As Husband’s primary challenge centered on the suffi-

ciency of the evidence, the Superior Court was obligated to

“view the evidence in the light most favorable to the verdict

winner, granting her the benefit of all reasonable inferences.”

Mescanti, 956 A.2d at 1020 [citing Fonner v. Fonner, 731

A.2d 160, 161-63 (Pa. Super. 1999)]. The Court must then

decide whether that evidence establishes proof by a prepon-

derance of the evidence, the standard for PFA actions, which

merely requires the evidentiary scale tip only slightly in

favor of the verdict winner.

The trial court made the following findings as part of its

adjudication. On Oct. 7, 2007, two days prior to the filing of

the PFA petition, Husband completed a three-year renovation

project on the master suite of the marital residence. Although

Finally, the impact of a court crediting such arguments and

finding that equitable estoppel generally applies to this area

would not only affect cases involving termination pursuant to

Rule 1910.19(e) but also would open the door for similar

arguments in cases involving a first request for support of a

disabled adult child. Ultimately, however, the Superior Court

declined to address these matters, and while one can find

many reasons why families and communities would benefit

from an initial decision to forego a claim for continued sup-

port so that disabled children can truly test their skills in the

market place upon reaching majority, the uncertainty left

open by this case cautions against this approach.

DECEMBER 2008


211


CASE NOTES


EVIDENCE SUFFICIENT FOR PROTECTION FROM ABUSE ORDER

DESPITE ABSENCE OF PHYSICAL INJURY

BY DARREN J. HOLST

Darren J. Holst is a partner at the Harrisburg law firm ofHowett, Kissinger & Holst, P.C., a member of Council of thePBA Family Law Section and a member of the Board ofDirectors of the Dauphin County Bar Association.

the parties had been sleeping in separate rooms for those last

three years, Husband nonetheless expected Wife to join him

in the newly-completed suite that evening. As the day wore

on, and as the issue of Wife’s sleeping arrangement that

evening remained unanswered, Husband proceeded to con-

duct himself towards Wife in an icy and mean manner.

Husband then progressed to confronting Wife and making

repeated snide comments. Around bedtime, as Wife sat at her

computer searching the Internet for available homes and

mortgage rates, Husband approached her from behind on

several occasions. Husband ultimately announced he would

be in the new bedroom if she wished to talk and that “If she

did not come in, he knew what that meant.”

Husband left Wife alone for 30 minutes before coming

out of the bedroom and confronting her once more. This

time, Husband stated, “This is going to get ugly,” and that

“This just the tip of the iceberg.” Despite such threats, Wife

proceeded to follow Husband to the basement where he went

to use his computer. Wife sat next to Husband at the comput-

er, but instead of working on his computer, Husband grabbed

a phone bill and ranted about the charges. Husband also

made a vague threat to do something to curb the excessive

charges. As Husband continued to rail against Wife about the

charges, he paced back and forth. Eventually, Husband

returned upstairs and left the home.

After Husband vacated the premises, Wife turned off the

lights and went to bed on the living room couch, where she

had been sleeping for several months. Shortly thereafter

Husband returned home, sat down in the living room and

turned on the television. Wife asked Husband to leave the

room and watch television in the master bedroom. Husband

refused. Wife got off the couch and turned off the television,

but Husband immediately turned it back on. After several

rounds of such behavior, Wife unplugged the television, and

Husband stormed out of the room cursing Wife. Wife

returned to the couch to sleep.

Husband immediately returned to the room, turned on

the lights and proceeded to turn on Wife’s computer (only

Wife and the children used the computer on the first floor).

Wife voiced her objection after Husband began to try to log

onto the computer and refused to tell her what he intended to

do. Wife disengaged several cords to impede his access, at

which time the argument escalated. According to Wife,

Husband turned to her, looked her in the eyes, cursed her

once more and, as he left the room, said, “You better not go

to sleep. You better not even close your eyes.” Wife testified

to past arguments with Husband where, following the argu-

ment, she heard Husband in the basement playing with and

“cocking” the many guns he stored there. She testified she

was very familiar with such noises, and for a long time she

believed Husband ultimately intended to kill her if she tried

to leave him. Wife called the police after Husband made

these specific threats.

On the stand Wife further relayed a pattern of harass-

ment and intimidation spanning several months. As the par-

ties worked different shifts, Husband would routinely insti-

gate fights with Wife when he got home from work as she

attempted to sleep, and he would restrict Wife’s movements

within and without the home. He would curse her and call

her derogatory names. She further reported Husband had

hacked into her private e-mails on several occasions and had

on several occasions searched her belongings, her cell phone

logs and her car. Husband further had followed Wife around

town on several occasions, and when Wife had told Husband

in the past she wished to separate, his reaction had always

been he would never allow her to leave. She testified

unequivocally that she was afraid of Husband, she did not

know what he was capable of doing and she believed he

would eventually harm or kill her.

Wife also relayed an incident in September 2007, when

after a fight she attempted to leave the home only to find her

cell phone and car keys were missing. When Wife attempted

to re-enter the home after learning of such facts, she realized

Husband locked her out. After Wife ultimately regained entry

to the home, she discovered Husband had disconnected the

home phone line. When she returned to her car, she observed

Husband under the hood tampering with the engine.

Based upon the established facts, the Superior Court

could find no abuse of discretion with trial court’s conclusion

that Husband engaged in a course of conduct placing Wife in

reasonable fear of bodily injury, which constitutes abuse

under the statute. The Court noted the purpose of the PFA

statute is protection against domestic violence; the primary

incentive is advance prevention of abuse. Pursuant to the

statute, “abuse” is defined in such a fashion that physical

contact or physical injury is not a necessary prerequisite.

Placing another individual in reasonable fear of imminent

serious bodily injury constitute abuse, as does knowingly

engaging in a course of conduct or committing repeated acts

that, under the circumstances, place a person in reasonable

fear of bodily injury. The trial court reasonably concluded

Husband had engaged in a course of conduct over time, rea-

sonably placing Wife in fear of bodily injury in light of

months of repeated arguments and confrontations; searching

through her belongings; restricting her movements; follow-

ing her; and, on occasion, intimidating her by flagrantly play-

ing with weapons and other mind games. Such course of con-

duct, coupled with his threats on the night in question, unde-

niably placed Wife in fear of bodily injury. The absence of

bodily injury in no way jeopardized her claim.

DECEMBER 2008


212


CASE NOTES


In Re: R.P.

957 A.2d 1205, 2008 Pa. Super. 196 (Aug. 21, 2008).

In In re: R.P., the Superior Court (Ford Elliott, Bowes

and Colville, JJ.) affirmed the order of Judge Kameen of Pike

County, which 1) determined that the children were depend-

ent; 2) found the existence of aggravated circumstances; and

3) placed the children in foster care, with no further efforts to

preserve or reunify the family.

The children at issue in this case were adopted from dif-

ferent orphanages in Russia. L.P. was adopted June 2004 and

R.P. was adopted June 2007. Shortly after R.P.’s adoption,

Mother and Father brought 18-month-old R.P. to the emer-

gency room in critical condition, where it was noted that R.P.

was wearing only a diaper and had approximately 100 bruis-

es of varying coloration all over his body. The doctor who

examined R.P. in the ER noted that many of his bruises were

more than 24 hours old. Additionally, the doctor noted that

R.P. exhibited a Battle’s sign behind his ear, which is indica-

tive of a skull fracture, and several healing cuts on his scalp.

A CAT scan revealed that R.P. suffered a right occipital skull

fracture and a bilateral subdural hematoma. R.P. had over

100 hemorrhages within his eye. A skeletal survey revealed a

While the trial court did erroneously conclude Husband

engaged in weapons play on the day he threatened Wife, the

day that prompted the PFA filing, the Superior Court found

this error to be harmless in light of the overwhelming evi-

dence of a course of conduct placing Wife in reasonable fear

for her safety. Moreover, the Court rejected Husband’s asser-

tion that the abuse finding was improper, notwithstanding his

acknowledged course of harassment, because there was no

testimony that he had ever previously threatened Wife in a

fashion similar to the night of Oct. 7. It was the single inci-

dent of threats coupled with the established course of con-

duct that justified the PFA order.

The Superior Court lastly determined Husband’s final

appellate issue had been waived due to lack of preservation.

Husband argued Wife filed the PFA solely to gain leverage in

a subsequent divorce and custody action, and the trial court

restricted his ability to cross-examine Wife as to her motives.

However, the record revealed Husband failed to preserve the

issue by failing to state his position to the trial court after it

sustained an objection to the initial line of questioning. His

failure to alert the trial court as to his reason for the question-

ing barred review on appeal.


Mescanti is unremarkable for the most part, as previous

precedent firmly established that physical contact and bodily

injury are not necessary prerequisites to a finding of abuse.

In a litany of cases, abuse has been found premised upon fear

of imminent bodily injury or a course of conduct placing an

individual in fear of injury, two separate bases for relief

under the statute. The overriding objective of the PFA statute,

abuse prevention, supports this conclusion. Because abusers

tend to escalate their actions over time, it would be ludicrous

to require an individual to wait until physical injury occurs

before seeking relief. By then it may be too late.

In some respects, Mescanti is notable. Foremost, the

Superior Court’s discussion of Husband’s third issue offers

considerable guidance. Unfortunately, as repugnant as it may

be, there are cases where an individual attempts to use the

PFA statute as a “sword” for leverage in divorce or custody

litigation. Where the practitioner wishes to pursue such a the-

ory, he or she must ensure their offer of proof and position is

soundly on the record if the trial court restricts such inquiry.

Also, the case illustrates that a single record incident of

threats can justify a PFA order where a pattern of behavior is

established. The pattern of behavior need not be as egre-

gious.

DECEMBER 2008


213


CASE NOTES


DEPENDENCY BY OMISSION: TRIAL COURT’S FINDING THAT A CHILD IS

WITHOUT PROPER PARENTAL CARE SUPPORTS AN ADJUDICATION OF

DEPENDENCY

BY CHRISTINA M. DEMATTEO, ESQ.

Christina M. DeMatteo is an associate in the Norristownoffice of Hangley Aronchick Segal & Pudlin. She currentlyserves as President of the Doris Jonas Freed Inn of Courtand Treasurer of the Montgomery Bar Association FamilyLaw Section. She is an active member of the PennsylvaniaBar Association Family Law Section.

healing wrist fracture and a possible hip fracture. After

extensive examination, including consultation with an

endocrinologist, hematologist, orthopedist, radiologist, oph-

thalmologist and a geneticist (to rule out any genetic disor-

ders which could cause R.P.’s presentation), doctors conclud-

ed that R.P.’s condition was consistent with Shaken Baby

Syndrome.

When interviewed by the police, Mother told the police

that she had bathed R.P. that morning and had not observed

any bruises. Father told police that he was jumping on the

trampoline with R.P. and that when he turned his back, the

child fell off the trampoline. Mother also told the police that

R.P. had fallen down stairs two days earlier when the fami-

ly’s dog knocked him over, stating that “[h]e would slip

down the stairs every once in a while.” Both parents advised

that R.P. was a clumsy 18-month-old who recently learned to

walk. The parents later repeated these facts to a CYS case-

worker.

Initially, while R.P. was in the hospital, CYS permitted

the child’s Grandparents to take custody of the other child,

L.P., with a safety plan in place providing that the child had

to be supervised during any visitation with Parents; howev-

er, several days later CYS filed a petition for emergency pro-

tective custody, based on the fact that Grandparents lived

across the street from Parents and knew or should have

known that R.P. was an abused child. The Petition was grant-

ed.

At trial, CYS presented the agency’s recommendation

that L.P. and R.P. be declared dependent children with no

kinship reunification plan due to the presence of aggravated

circumstances. Following a hearing, the trial court found the

children to be dependent and determined that aggravated cir-

cumstances existed as to both Mother and Father, finding that

Mother was a perpetrator by omission. As the court also

found aggravated circumstances, the order provided that no

further efforts to preserve or reunify the family were neces-

sary.

Mother appealed, arguing that there was a dearth of evi-

dence demonstrating that she knew or should have known

about R.P.’s abuse. Mother pointed out that many of the

bruises were bright red and therefore fresh, and noted that

R.P.’s physicians had testified that many of R.P.’s injuries

could have occurred during the same event. With regard to

the remaining bruises, Mother offered other explanations,

including R.P.’s falls down stairs, his baths,1 his fall in his

crib, his habitual pinching and hand biting, a recognized

bruise on the forehead and rough play with L.P. and the fam-

ily dog.

The Superior Court concluded that there was clear and

convincing evidence to support the trial court’s finding of

dependency. Although Mother argued that there was a dearth

of evidence that she knew or should have known about the

child’s abuse, the Superior Court held that the evidence sup-

ported the trial court’s conclusion that the child’s injuries

would not have occurred if the child had been under the

proper care and control of the parents. The Trial Court found

Mother’s testimony to be “evasive, self-serving, inconsistent,

and false.” For example, Mother initially claimed ignorance

of the bruises, but later admitted she knew of them and had

even questioned Father about some of them. Although

Mother submitted 28 summer photographs of the children

showing them in summer clothing from June 14, 2007

through Aug. 26, 2007, the Superior Court noted that 25 of

the photographs were taken prior to Aug. 4, 2007, more than

three weeks prior to the incident in question, and in the two

pictures of R.P. taken on Aug. 17, 2007, the clothing or cam-

era angle conceals the majority of his body. Notably, the

Juvenile Act does not require a finding that a parent has com-

mitted or condoned abuse, but merely a finding that the child

is without proper parental care to support an adjudication of

dependency. Accordingly, the Superior Court concluded and

the record supports that Mother had placed R.P. at risk by her

failure to protect him from harm, and therefore affirmed the

trial court determination of dependency. The Superior Court

also affirmed the finding of dependency with regard to L.P.,

noting that where one sibling is abused and found to be

dependent, it is within the trial court’s discretion to deter-

mine other siblings are dependent even if they are not

abused. In re. S.B., 833 A.2d 1116 (Pa. Super. 2003).

The Superior Court affirmed the trial court’s finding that

aggravated circumstances existed. Mother argued that aggra-

vated circumstances existed only to Father; noting that she

immediately took action and brought the child to the hospi-

tal upon discovering his injuries. The trial court found that it

was Father who inflicted the child’s Aug. 26, 2007 injuries;

however, the court noted that it was impossible to determine

which parent caused the older injuries which were apparent.

The trial court also found that the Shaken Baby Syndrome

suffered by the child would not have occurred but for

Mother’s omissions as his primary caretaker.2 The Superior

Court noted that the court need not find the existence of

aggravated circumstances as to a particular party; rather, they

merely must determine whether they are present in the case.

The Superior Court affirmed the trial court’s determina-

tion that no further efforts towards reunification were neces-

sary. In support of her arguments favoring reunification,

Mother cited several cases in which aggravated circum-

stances were found, but the children were placed with the

parent. Mother argued that the trial court did not consider the

DECEMBER 2008


214


CASE NOTES


R.C. v. J.S.

957 A.2d 759 (Pa. Super. 2008)

In R.C. v. J.S., the Pennsylvania Superior Court (Stevens,

Bowes and McEwen, JJ.) addressed whether the temporary

institutionalization of the parties’ minor child was a sufficient

change of circumstances to warrant a suspension of Appellee-

father’s child support obligation. The Superior Court (per

Bowes, J.) reversed the ruling of the Allegheny County Judge

Flaherty, which held that the institutionalization of the minor

child was sufficient to suspend father’s child support obliga-

tion.

A support order was entered pursuant to which father was

ordered to pay child support for the parties’ minor child, who

was diagnosed with Asperger’s syndrome. At the age of 12, the

child was admitted to an inpatient mental health facility for

treatment and father filed a Petition for Modification seeking

to have his support obligation suspended based on the child’s

institutionalization. At the hearing mother testified that the

child’s institutionalization was temporary, that the child

returned to her home every other weekend for visitation, and

that she regularly went to visit the child in treatment, bringing

with her gifts and clothing. After a hearing, father’s support

order was suspended based on the child’s temporary institu-

tionalization. Mother filed exceptions and the trial court

upheld the decision. The trial court held that mother did not

have standing to contest father’s request for suspension of the

support order, citing Rule 1910.3 and Section 4341(b) which

provide when a party has standing to commence an action, and

suspended the support order, indicating that mother could file

to have support reinstated at such time as the child was dis-

charged. The trial court reasoned that because mother exer-

cised what was tantamount to partial custody, she did not have

issue of bonding between herself and the children, or bond-

ing between the children, before deciding that reunification

efforts had taken place. The Superior Court rejected

Mother’s arguments, noting that the record established that

Mother was clearly not an attentive parent, and that the trial

court appropriately focused on the best interests of the chil-

dren rather than the rights of Mother. The Superior Court

noted that Mother’s failure to protect the children precludes

her continued care of them.

Finally, the Superior Court rejected Mother’s argument

that the trial court erred by failing to place the children with

family members, where kinship care was not recommended

in light of the aggravated circumstances present in the instant

case. Additionally, Children and Youth testified that kinship

care could not be used because the goal was not reunifica-

tion. The trial court also expressed concern with the ease of

access the parents would have if the children were placed

with relatives. Accordingly, the Superior Court affirmed.


While In re: R.P. is a difficult case to read due to the

graphic descriptions of the child’s horrific injuries, the

Superior Court opinion provides a good primer on some of

the issues raised in litigating a dependency case. Notably,

this case highlights an issue that attorneys may not be aware

of — the issue of dependency by omission. To establish

dependency, the Juvenile Act does not require proof that the

parent has committed or condoned abuse, but merely evi-

dence that the child is without proper parental care. In deter-

mining whether there is parental care, acts or omissions of a

parent weigh equally since parental duty includes protection

of a child from the harm others may inflict.

1 Mother explained that both children had to be held

down during baths due to traumatic experiences in Russian

orphanages.

2 42 Pa. C.S. §6302(2) defines aggravated circumstances

to include aggravated physical neglect, which is defined as

“[a]ny omission in the care of a child which results in a life

threatening condition or seriously impairs the child’s func-

tioning.”

DECEMBER 2008


215


CASE NOTES


Scott L. Levine, Esq., is associated with the Pittsburgh firm ofFried & Davis, L.L.C., and a member of the AlleghenyCounty Bar Association and Pennsylvania Bar AssociationFamily Law Sections.

TEMPORARY INSTITUTIONALIZATION DOES NOT CONSTITUTE

PERMANENT CHANGE IN CIRCUMSTANCES

BY SCOTT L. LEVINE, ESQ.

DECEMBER 2008


216

standing to contest father’s petition to suspend the support

order.

Mother appealed to the Superior Court, which reversed

the trial court’s ruling, holding that because the child’s institu-

tionalization was temporary in nature, and mother still provid-

ed for the child, the support order should not be suspended.

The Superior Court found that although the child was

temporarily institutionalized, mother had standing to contest

father’s request for modification. The Court held that the trial

court erred in finding that mother was not “caring” for the

child opining:

“We disagree with the

trial court’s factual conclu-

sion that Mother is not caring

for James. She visits him

each week and participates in

his treatment. In turn, James

returns home biweekly, and

Mother takes him on trips.

Mother performs all of

the parental responsibilities

attendant with a child receiv-

ing in-patient mental health

care. Accordingly, we con-

clude that the trial court

improperly opined that

Mother is not caring for this

child.” R.C. v. J.S., 957 A.2d

at 762.

The Court noted that at

the time father sought to

have the support order sus-

pended, mother had sole custody of the child and was caring

for the child. In support of its holding the Court cited McClainv. McClain, 872 A2d 856, 860 (Pa. Super. 2000) which held

that a duty to pay child support is “absolute” and meant to pro-

mote the child’s best interest.

The Court held that father did not have a sufficient change

in circumstances to warrant a suspension of the support order

as the child’s institutionalization was temporary in nature. The

Court further opined that while this was a case of first impres-

sion, it was difficult to characterize an “impermanent change

in living arrangements as a ‘substantial change in circum-

stances’ permitting modification proceedings in the first

instance.” R.C. v. J.S., 957 A.2d at 763. In support of this hold-

ing, the Court cited McClain, which limited support modifica-

tions where there is a change in circumstances that was either

“irreversible” or “indefinite.” However, in R.C., the child was

institutionalized for a temporary and finite period of time,

which the Court found precluded father’s modification action.

In fact, the Court opined that “… when a child is receiving

provisions in-patient treatment, the custodial parent’s child-

related expenses, as a practical matter, are not altered signifi-

cantly. The custodial parent still must maintain an appropriate

residence in anticipation of the child’s eventual return.” R.C. v.J.S., 957 A.2d at 764. The Court cited Conley v. Conley, 651

N.Y.S. 2d 802 (N.Y.A.D 1996), in which the New York

Supreme Court affirmed the trial court’s decision to deny a

request to terminate support based upon the child’s placement

in a juvenile detention facility. In its holding the New York

Supreme Court relied on the temporary nature of the place-

ment. The Court also relied on Van Winkle v. Van Winkle, 437

N.W.2d 358 (Ill. App. 1982), in which an Illinois court refused

to suspend a support order

where the child was placed

in a detention facility after a

delinquency adjudication.

The Superior Court

found that the trial court

“disregarded unrebutted evi-

dence” regarding mother’s

support of the child, despite

the institutionalization, as

“the only nurturing parent.”

The Court feared that

upholding the trial court

would set “dangerous prece-

dent that runs the risk of

being applied to any number

of scenarios where a child is

in transitory placement out-

side the custodial parent’s

home.” R.C. v. J.S., 957 A.2d

at 764. The Court concluded

by opining that to permit

suspension of support based on a temporary placement would

invite a “plethora of petty legal challenges that would impose

a significant burden on our judicial resources.” R.C. v. J.S.,957 A.2d at 764.


The Superior Court reminds the practitioner and the

Courts that in child support cases a temporary institutionaliza-

tion with continued and frequent contact by the custodial par-

ent with home visits does not constitute a permanent change of

circumstances to warrant a suspension or termination of child

support. Query whether this decision precludes the County on

behalf of the mental hospital to bring an action for child sup-

port pursuant to 23 Pa.C.S. 4341(b)?


CASE NOTES


DECEMBER 2008


217

OTTOLINI v. BARRETT

954 A.2d 610 (Pa. Super. 2008)

In Pennsylvania child custody cases, two issues fre-

quently arise: the court interviewing a child and expert

reports. The recent Pennsylvania Superior Court Case of

Ottolini v. Barrett (Bender, Gantman, and Tamilia, JJ.), in an

opinion authored by Superior Court Judge Tamilia, covers

both of these issues.

The facts are as follows: Mr. Ottolini (Father) and Ms.

Barrett (Mother) were married on Oct. 18, 1997, and

divorced on Nov. 20, 2003, in Potter County. There were two

children born of the parties’ marriage.

The parties’ divorce and custody actions began on April

8, 2003, when Father filed a Complaint in Divorce. Two days

after Father’s filing, Mother filed an Emergency Motion

requesting primary physical custody of the children. That

same day, Father filed a cross petition for special relief aver-

ring that Mother had removed the children from the marital

home and requesting that he be awarded primary custody. On

April 16, 2003, Mother again raised a claim for primary cus-

tody in her answer and counterclaim to Father’s petition. On

April 22, 2003, the trial court entered an interim order

“awarding Mother physical custody of the children and

granting Father ‘such partial custody as Mother shall

agree.’ ” On May 16, 2003, the parties entered into a stipula-

tion where they agreed to share legal and physical custody of

the children. On April 20, 2004, after Mother petitioned to

modify the stipulation, the court entered an order slightly

modifying the parties’ stipulation.

Years later, it appears that Father petitioned to modify

the existing child support order between the parties alleging

“a change in Mother’s status.” As a result of Father’s peti-

tion, the court issued an order providing, in part, “Father hav-

ing requested a modification of the existing child support

Order and alleging a change in Mother’s status, a review of

both custody and child support is required.” Thereafter, on

Dec. 6, 2005, Mother filed a petition to modify custody,

seeking primary custody of the children. According to the

Opinion, “later that day, the court held an in chamber’s hear-

ing with the children but without the presence of a court

reporter or counsel.” On Dec. 12, 2005, the trial court entered

an order appointing a guardian ad litem to represent the inter-

est of the children. “On April 21, 2006, the court held anoth-

er hearing at which it considered the testimony offered by

expert witness, Dr. Joseph McNamara, Ph.D., and on June 2,

2006, the court directed the children to submit to a psycho-

logical custody evaluation with Dr. John W. Addis, Ph.D.”

A third hearing was held on July 28, 2006, a fourth hear-

ing was held on Nov. 1, 2006, and a final custody hearing

was held on May 17, 2007.

The result of the custody litigation, in part, was the

transfer of primary physical custody of one of the children to

Mother. Father filed a timely notice of appeal and raised four

issues, two of which will be discussed in this article. The first

issue was whether the trial court of Potter County

(Williamson, J.) abused its discretion in denying counsel to

be present and have an opportunity to participate in inter-

viewing the two children and whether the court abused its

discretion in failing to make the interview a part of the record

so that counsel could be fully aware of what was exactly said

during the interview. The second issue on appeal was

whether the trial court abused its discretion “in considering

Dr. Addis’ report even though the report was not entered into

evidence nor was Dr. Addis called as a witness; and that

[Father] objected to Dr. Addis’ report being admitted into

evidence absent the opportunity to cross-examine him.”

With regard to interviewing or interrogating children in

a child custody case, Pennsylvania Rule of Civil Procedure

1915.11(b) controls. Rule 1915.11(b) provides as follows:

“The court may interrogate a child, whether or not the sub-

ject of the action, in open court or in chambers. The interro-

gation shall be conducted in the presence the attorneys and,

if permitted by the court, the parties. The attorneys shall have

the right to interrogate the child under the supervision of the

court. The interrogation shall be part of the record.”

By reviewing the clear meaning and words in Rule

1915.11(b), the court does not have the discretion of whether

the attorneys should be present during the interrogation/

interview and whether the interrogation/interview should be

on the record, as the Rule uses the word “shall” with regard

to same. In Ottolini, the court chose to interview the children

without counsel present and not on the record. The trial court

justified its decision by stating: “Father suggests we erred in


COURT ENFORCES RULES REGARDING IN CAMERA INTERVIEWS WITH

CHILDREN AND EXPERT REPORTS

BY MICHAEL E. BERTIN, ESQ.

Michael E. Bertin is an associate in the Philadelphia lawfirm of Obermayer Rebmann Maxwell & Hippel L.L.P. He isCo-Chairman of the Custody Committee and a member of theExecutive Committee of the Family Law Section of thePhiladelphia Bar Association, and a member of the ExecutiveCommittee and Council of the Family Law Section of thePennsylvania Bar Association.

interviewing the children on the two occasions mentioned

without the presence of counsel, the parties, and/or the court

reporter. While we recognize that by doing so, no record is

created, we are absolutely convinced that our practice pre-

serves the confidentiality of the children and protects them

from recriminations which befall them if their parents hear

their comments to the Court or those comments are relayed

by counsel.”

In response to the trial court’s reasoning, the Superior

Court held, “We do not share the trial court’s conviction, nor

does our Supreme Court. While we appreciate the concerns

which prompted the court to interview the children in cam-era, over Father’s objections and without either of the par-

ties’ attorneys or a court reporter present, our Supreme

Court’s mandate could not be clearer (referring to Rule

1915.11(b)).”

This issue has been discussed at many seminars and lec-

tures. This case strongly reiterates that Rule 1915.11(b) shall

be followed and counsel shall be present during the inter-

view/interrogation of the child/ren and that the court reporter

shall be present. In the present case, Mother argued that Rule

1915.11(b) should be disregarded because Father was not

prejudiced by the court’s in camera interview of the children.

The Superior Court disagreed with Mother and indicated that

the trial court’s order must be vacated because the interview

was conducted contrary to the mandates of Rule 1915.11(b).

The Superior Court then went on to discuss Father’s sec-

ond issue on appeal regarding expert reports and stated:

“While there is no question that the trial court’s order must

be vacated, we are compelled to address Father’s second

assignment of error given the impending remand of this

case.” The expert report at issue in this case was that of Dr.

Addis. Dr. Addis was appointed sua sponte. Pursuant to

Pennsylvania Rule of Civil Procedure 1915.8(a), trial courts

are authorized to order children to submit to “an evaluation

by an appropriate expert or experts” sua sponte “Once the

court appointed expert delivers a report to the trial court and

the parties, Rule 1915.8(b) controls.” Rule 1915.8(b) pro-

vides, in part: “… no report shall be filed of record or con-

sidered evidence unless and until admitted by the court. … If

the report or any information from the evaluator is provided

to the court, the evaluator shall be subject to cross-examina-

tion by all counsel and any unrepresented party without

regard to who obtains or pays for the evaluation.” Because

Rule 1915.8(b) provides that the evaluator “shall” be subject

to cross-examination, the plain meaning of the Rule removes

the discretion of the trial court regarding same.

It is to be noted that Father filed a motion on Oct. 30,

2006, requesting permission to cross-examine Dr. Addis. At

the Nov. 1, 2006, hearing, the trial court stated: “I am not

going to worry about Dr. Addis. When I get a date the court

administrator will call Dr. Addis find out when he’s available

when I’m available and that’s when we’ll have the hearing,

and he’ll be issued subpoena whether he gets money or not.

If he doesn’t show up he’ll be in jail. Next problem.”

However, the trial court issued an interim custody Order the

following day “responding, in part, to Father’s Oct. 30, 2006

motion,” and the Order was silent regarding Father’s request

for cross-examination of Dr. Addis. It is assumed by the

Superior Court Opinion that Dr. Addis was never called at

the final hearing conducted on May 17, 2007, as it is silent as

to Dr. Addis ever testifying.

The Superior Court stated: “In sum, the trial court

ordered Dr. Addis’ report sua sponte and, in doing so, accept-

ed the responsibility for ensuring Dr. Addis was subject to

cross-examination in accordance with Rule 1915.8(b). …

Father, in exercise of due diligence, filed a motion seeking

permission to cross-examine Dr. Addis. [and] … the court

made it clear it would procure Dr. Addis, … but then issued

an Order not referencing the issue. To then place the burden

on Father to subpoena Dr. Addis would be inequitable.”

Though Dr. Addis’ report was not introduced into evi-

dence or made a part of the official record, it was stamped by

the trial judge’s chambers as being received on Oct. 3, 2006,

and the Superior Court states that “the trial court considered

opinions offered by three experts,” and that “only Dr. Addis

offered an opinion which could be construed as supporting

mother’s position.”

Father’s primary two issues on appeal regarding the incamera interview and the expert’s opinion appear to intersect

and culminate with a compound fatal abuse of discretion by

the trial court as the Superior Court stated the following:

“While the trial court does note at one point that Dr. Addis’

report merely confirmed its ‘own observations,’ mainly that

[the parties’ son] supposedly wanted to live with Mother, it is

clear from the record that the trial court’s ‘observation’ in

this regard occurred in the context of the trial court’s unlaw-

ful in camera examination of [the son].”

The Superior Court then vacated the trial court’s order

and remanded the case for proceedings consistent with its

opinion.


This case sends a clear message to all courts and coun-

sel that in camera interviews of children shall be conducted

with the attorneys present and on the record, and when any

expert reports are received by the court, the expert shall be

subject to cross-examination. However, it is interesting to

note that the Rule regarding in camera interviews provides

that they shall be conducted in the presence of attorneys and

DECEMBER 2008


218

CASE NOTES



WILLIAMS v. WILLIAMS

Lancaster Co. CCP, CI-99-06533 (June 19, 2008)

*This decision is published in the Pennsylvania Divorceand Domestic Relations Reporter, 108 PDDRR 87 p. 321.

In Williams v. Williams, Judge Gorbey of the Court of

Common Pleas of Lancaster County determined that pur-

suant to the parties’ Post-Nuptial Agreement, Husband could

not unilaterally reduce his monthly alimony payments to

Wife when his loss of employment was a result of voluntary

resignation and not termination. Although Husband argued

that he was in fact fired from his job, the Court found that

Husband had not presented any evidence to corroborate this

fact. Thus, the Court held that Husband was to continue to

pay alimony to Wife at the amount set forth in the parties’

Agreement, including all arrearages and was required to

reimburse Wife for attorneys’ fees incurred to enforce the

Agreement.

Prudence Williams (Wife) and James Williams

(Husband) were divorced in Lancaster County in 2002. As

part of their divorce settlement, the parties entered into a

Post-Nuptial Agreement (Agreement) to resolve all pending

economic issues, including alimony. The Court recited the

Agreement’s alimony provision as follows: “Husband would

pay to Wife alimony in the amount of $5,500 per month until

he reaches 65 years of age, unless he loses employment

involuntarily and through no fault of his own, such as

because of illness or a non-negotiated corporate decision to

fire him, causing a substantial reduction of income. In such a

case, there was to be a rebuttable presumption that the stated

amount of alimony would be reduced by a percentage equal

to the Husband’s percentage reduction of income, though no

lower than to $3,000 per month.” Williams v. Williams, 108

PDDRR 87, p. 321.

At the time that the parties signed the Agreement,

Husband was employed at a Lancaster company. Shortly

after signing the Agreement, Husband switched jobs and

became the President, CEO and a board member of

Monterrey Gourmet Foods (Monterrey). In September 2006,

Monterrey issued a press release, written by Husband, stating

that Husband was resigning from the company for “personal

reasons.” Upon resignation, Husband received a severance

package of one year’s salary and significant fringe benefits.

In September 2007, when Husband stopped receiving his

salary from the severance package, Husband, without notifi-

cation, reduced his alimony payment to Wife to $3,000 per

month. Husband subsequently obtained employment with

Carlos Pasta in March 2008. At that time, he increased his

alimony payment to Wife to $3,700 as his new salary was

approximately two-thirds of his Monterrey salary.

In response to Husband’s unilateral reduction in her

alimony, Wife filed a Petition to Enforce the Post-Nuptial

Agreement. Husband replied in opposition. The Court then

held a hearing on the matter. At the hearing, Husband testi-

fied as to the circumstances of his loss of employment with

Monterrey. Husband stated that he was fired by Monterrey’s

board of directors and did not leave his position voluntarily.

With regard to the press release authored by him, Husband

stated that the release’s, “characterization of his firing as a

resignation was done in order to help his future employment

search and so as not to have a negative effect on sharehold-

ers.” Id at 322. Husband further explained that both the press

release and the substantial severance package were “merely

“if permitted by the court, the parties.” Therefore, should a

pro se litigant be present during an in camera interview with

opposing party’s attorney when opposing party is the only

represented litigant? And, if the pro se litigant is present dur-

ing the interview, should the represented party be present as

well, in addition to his/her attorney?

This Oct. 14, 2008, article is reprinted with permission fromThe Legal Intelligencer © 2008.

DECEMBER 2008


219


CASE NOTES


VOLUNTARY RESIGNATION FROM EMPLOYMENT DOES NOT JUSTIFY

REDUCTION OF ALIMONY PAID PURSUANT TO POST-NUPTIAL

AGREEMENT

BY ELIZABETH BILLIES, ESQ.

Elizabeth Billies is an associate in the Lansdale firm ofDischell, Bartle, Yanoff & Dooley and a member of theMontgomery County Bar Association and Pennsylvania BarAssociation Family Law Sections.

My favorite column of the year is to help find gifts for

your special techies. Here is the 2008 list, in no particular

order:

1. Cell phones — Shopping for a cell phone means you

have to look for special deals. Each carrier has different loss

leaders and in some case exclusive phones (i.e., AT&T’s

iPhone). For lawyers, a phone that receives e-mail and allows

you to easily synch contacts and appointments with your

desktop, firm and home computer is a major timesaver.

These new generation phones are around $200 with a two-

year contract. The reviews for the new Blackberry are not

good, so I would stay with the current models. You might get

a better deal, too! When it comes to handsets, the iPhone is

the leader, and will be for the immediate future. But if you

are buying for the gadget freak, you might not want to lock

in to a two-year contract. The job of picking a plan and a

phone can be aided by a handful of specialty Web sites.

DECEMBER 2008


220

ways to make life easier for himself and the company in the

negative face of his firing.” Id.

Following this testimony, the Court determined that

Husband had voluntarily terminated his employment with

Monterrey and granted Wife’s Petition. The Court ordered

Husband to pay Wife $5,500 per month until he reaches the

age of 65 as set forth in the Agreement. It should be noted

that the Court continued Wife’s alimony at $5,500 per month

despite the fact that Husband’s salary at his new job was sig-

nificantly less than what he earned at Monterrey. The Court

also ordered Husband to pay all arrearages and Wife’s attor-

ney’s fees related to the Petition. Husband appealed this deci-

sion.

In its opinion, the Court began its explanation of the

decision with a recitation of Pennsylvania’s well-established

case law regarding interpretation of Post-Nuptial

Agreements. The Court found that the Agreement unam-

biguously stated that the only time that Husband could

reduce his alimony payments to Wife was if his income

decreased as a result of involuntary unemployment. After

finding the language of the Agreement’s alimony provision

clear on its face, the Court turned to the issue of whether

Husband had voluntarily resigned from his position with

Monterrey, as the press release stated, or was in fact, fired, as

Husband testified. While the Court noted that corporations

often issue press releases which provide less than the whole

truth about a company’s internal affairs, the Court found no

reason to accept Husband’s testimony as an accurate account

of his loss of employment. The Court explained as follows:

“Frankly, there is no insufficient evidence to convince the

Court that Husband lied in the press release when lying was

in his favor, but was truthful in his testimony when the effect

of the press release’s message changed and was not longer in

his favor. If Husband lied to turn things to his advantage

then, why should he not lie now for the same reason?” Id.

Furthermore, the Court found that Husband did not pres-

ent any fact witnesses or documentary evidence to corrobo-

rate his testimony. Therefore, the Court determined that

Husband had resigned from his position and thus violated the

parties’ Agreement when he reduced Wife’s alimony to

$3,000 per month. Husband’s appeal of this decision is cur-

rently pending before the Superior Court. Oral Argument is

currently scheduled for Jan. 13, 2009.

CASE NOTE AUTHOR’S EDITORIAL COMMENT:

Often, counsel is presented with a set of facts that is

challenging. “Voluntary quits” are difficult enough in the

Unemployment Compensation arena. In the alimony, spousal

support and child support hearing they are particularly chal-

lenging when it is “my word against your word” and even

more difficult when it is “my word” alone. It is also difficult

and perplexing to contact past employers and human rela-

tions personnel whose mission is not to assist and to not get

sued for slander. So what must the practitioner do? Make the

client get all of the documentary evidence and witness testi-

mony, and tell the client in no uncertain terms that it is a

steep, uphill climb.

CASE NOTES



Technology Corner: Joel B. Bernbaum, [email protected]

Alicia A. [email protected]

Consumersearch.com rates a few carriers and has very

detailed shopping advice. MyRatePlan.com has a handset

search wizard, and BillShrink.com has a special iPhone ver-

sus G1 rate calculator.

2. Digital cameras — New models, lower prices and

advanced features makes it worthwhile to upgrade to more

capable cameras this season. Vacations, children and yes,

grandchildren, all deserve lasting memories. Stay with name-

brand cameras like Nikon, Olympus, Canon, Sony, etc. If

you never heard of the brand, there is a reason. Prices for a

very good pocket-size Nikon start at $150. The Coolpix S50

has all the features you need, good zoom, small size and a

great lens. Look for mail-in rebates and special offers to

sweeten your deal.

3. Video Cameras — There are still the usual video

camera choices and this year the hot thing is HD quality and

small, hand-held devices. The one that caught my eye is the

Flip video camera from Pure Digital Technologies. This type

of device, which can record high-definition video, yet is

small enough to fit in a pants pocket, appeals to those of us

who want to record a short scene (see children and grand-

children, above) and don’t want to spend upwards of $750.

Easy to use and view on your TV.

4. The myth of a pocket-sized projector has now

become reality thanks to the launch of the Pico Pocket

Projector from Optoma. Slightly larger than an iPhone, the

Pico throws a respectable 60-inch image in low-light condi-

tions. So while not meant for a big hall, it does, according to

reviews, deliver very respectable results in a conference table

setting. I have not played with this yet, but hopefully my wife

will get my hints. About $400 from limited retailers such as

Amazon (pre-order for January).

5. Headsets — I used to hate the wired ear buds for my

cell phone (now iPhone), but when I moved to Bluetooth in-

ear headset, the sound was poor or the background/road

noise was too loud. So I returned to wired earphones, but

upgraded to the V-Moda Duo with in-line microphone, which

has turned out to be an excellent solution. The call sound

quality is crystal clear for all parties, and I can listen to my

music using the same headphones without that annoying blue

light flashing in my ear! Another option is the Coosh head-

sets, which are available from Amazon for about $20. These

are very comfortable and have detachable around-the-ear

loops to stay secure during your morning run.

6. Scanners — Every lawyer should own or share

access to a business card scanner to add business acquain-

tances to their contact database. Many lawyers could also

benefit from scanning expense receipts. Enter the Neat

Receipts scanners. Any of the three models are simple and

intuitive to use, and small enough to leave on your desk or

take with you when you travel. For PCs and now for Macs,

they start at around $200 from NeatReceipts.

7. Flash Drives — These devices have been around for

years. As usual, they have come down in price and have

increased capacity. These are the best way to transport files,

photos, video, etc. They plug into your USB drive and can be

used for backing up (you do backup your computer, don’t

you?). For around $20 you get 2 gigabytes (that is a lot of

storage). Great stocking stuffers.

8. The perfect gift for sleep-deprived lawyers: The

Power Nap Kit! We’ve all heard of the power nap, but did

you know it is really a meditative exercise that turns 20 min-

utes of relaxation into the equivalent of four hours of sleep?

The kit contains a booklet and two CDs containing voice-

guided relaxation techniques and soothing music. About $25

from At Peace Media.

9. Here’s a great gift card idea: iTunes from Apple.

They come preloaded in different amounts or your can load

any amount you wish. Order online or at any Apple store.

Use them for music from the online store or movies or even

to download any of the Phillies Playoff games including the

World Series! Each game is available for $2 a game. What a

deal! Why not buy a flash drive and load it with some World

Series games?

Happy shopping, remember to use those coupons and

free shipping from Internet sites! Pitchers and catcher report

Feb.13 if you need something to keep you busy.

Please send your questions and comments to me at bern-

[email protected].

— Joel Bernbaum

DECEMBER 2008


221

Joel B. Bernbaum is counsel to the Norristown law firm ofKane, Pugh, Knoell & Driscoll, Technology Corner Editor ofthe Pennsylvania Family Lawyer and a member of Council ofthe PBA Family Law Section. Alicia A. Slade is President andCEO of Plummer Slade, a computer networking firm special-izing in providing computer networking and business solu-tions to law offices since 1988. She can be reached at(412) 251-5600, Ext. 202, or via e-mail at [email protected].

TECHNOLOGY CORNER


This article summarizes several domestic relations bills

enacted during the 2007-08 legislative session of the General

Assembly. It also lists the bills that were previously summa-

rized in the Legislative Updates but not enacted. Legislative

activity on several domestic relations bills since the October

2008 Legislative Update is also set forth. Status of the bills

is provided as of Nov. 30, 2008, which marks the end of the

2007-08 legislative session of the General Assembly. The

full text of the bills, as well as their legislative history, may

be found by following the link “Session Info” at

www.legis.state.pa.us.

ENACTMENTS

As previously noted in the Legislative Updates, House

Bill 1961 (child protection) became Act 73 of 2007, Senate

Bill 1147 (child protection) became Act 33 of 2008, and

Senate Bill 1156 (dependent children and permanency hear-

ings) became Act 76 of 2007. Since the October 2008

Legislative Update, the following three bills also were enact-

ed:

House Bill 1027 (Printer’s No. 4340; Prior Printer’s

Nos. 1199 and 3785), concerning support, became Act 104

of 2008. The Senate approved the bill on Oct. 7, 2008 by a

vote of 49-0, and the House concurred in the Senate amend-

ments on Oct. 8, 2008, by a vote of 200-0. House Bill 1027

was approved by the Governor on Oct. 9, 2008.

House Bill 1511 (Printer’s No. 4439; Prior Printer’s

Nos. 1866, 2559, 2656 and 3764), concerning dependent

children and permanency hearings, became Act 109 of 2008.

The Senate approved the bill on Oct. 7, 2008, by a vote of 49-

0, and the House concurred in the Senate amendments on

Oct. 8, 2008, by a vote of 199-1. House Bill 1511 was

approved by the Governor on Oct. 9, 2008.

Senate Bill 1107 (Printer’s No. 2472; Prior Printer’s

Nos. 1496, 1843, 1987 and 2430), concerning custody and

military deployment, became Act 127 of 2008. The House

approved the bill on Oct. 7, 2008, by a vote of 192-4, and the

Senate concurred in the House amendments on Oct. 8, 2008,

by a vote of 50-0. Senate Bill 1107 was approved by the

Governor on Oct. 9, 2008.

The following summarizes these six enacted bills.

Act 73 of 2007 (House Bill 1961) was approved by the

Governor on Dec. 18, 2007, and amends section 6344 of the

Domestic Relations Code (information relating to prospec-

tive child-care personnel). The act provides different effec-

tive dates for the various subsections: new subsection (b.1)

(information submitted by certain prospective employees)

took effect on Dec. 17, 2007; the amendment of subsection

(b) (information submitted by prospective employees) and

subsection (d) (prospective adoptive or foster parents) took

effect on Jan. 1, 2008; and the amendment of subsection (e)

(self-employed family day-care providers), subsection (f)

(submissions by operators of child-care services) and subsec-

tion (k) (existing or transferred employees) took effect on

July 1, 2008. In addition to making technical amendments

throughout section 6344, the act provides that if a prospec-

tive adoptive parent or a prospective foster parent, or any

individual over 18 years of age residing in the home, has

resided outside Pennsylvania at any time within the previous

five-year period, that person must submit a certification as to

whether he or she is named as a perpetrator of child abuse.

The certification must be obtained within the previous one-

year period from the statewide central registry or its equiva-

lent in each state where the person resided within the previ-

ous five-year period. The prospective adoptive parent or

prospective foster parent shall not be approved if the

Department of Public Welfare determines that the person is

named as the equivalent of a perpetrator of a founded report

of child abuse within the previous five-year period. The act

also provides that if any individual over 18 years of age

begins residing in the home of an approved foster family, that

individual must within 30 days of beginning residence pro-

vide the same certification. If the department determines that

the individual is named as the equivalent of a perpetrator of

a founded report of child abuse within the previous five-year

period, and the individual does not cease residing in the

home immediately, the foster child or children shall immedi-

ately be removed from the home without a hearing.

Act 76 of 2007 (Senate Bill 1156) was approved by the

Governor on Dec. 18, 2007, and took effect on Jan. 1, 2008.

The act amends section 6351 of the Judicial Code regarding

permanency hearings for dependent children. It provides that

in a permanency hearing, the court must consult with the

child regarding the child’s permanency plan in a manner

appropriate to the child’s age and maturity. In lieu of person-

DECEMBER 2008


222


Stephen F. Rehrer is Counsel with the Joint State GovernmentCommission in Harrisburg and the Legislative Editor of thePennsylvania Family Lawyer.

Legislative Update: Steve Rehrer, [email protected]

al consultation with the child, the court may receive the

views of the child regarding the permanency plan through the

guardian ad litem for the child or, as appropriate, the child’s

counsel, the court-appointed special advocate or other person

as designated by the court. The act also clarifies that the

child’s foster parent, preadoptive parent or relative providing

care for the child has the right, not just the opportunity, to be

heard at any hearing under the Juvenile Act.


Governor on July 3, 2008, and took effect on Dec. 30, 2008.

The act amends Chapter 63 (child protective services) of the

Domestic Relations Code and, among other things, establish-

es local child fatality or near fatality review teams, which

must review (1) the circumstances of the child’s fatality or

near fatality resulting from suspected or substantiated child

abuse; (2) the delivery of services to the abused child, the

child’s family and the perpetrator; (3) court records and doc-

uments related to the abused child and the child’s family and

(4) the county agency’s compliance with statutes, regula-

tions, policies and procedures. The team must prepare a

report of its findings and recommendations, to which the

Department of Public Welfare must provide a written

response.


Governor on Oct. 9, 2008, and took effect on Dec. 8, 2008.

The act amends section 4354 of the Domestic Relations Code

and concerns grading for the offense of the willful failure to

comply with a support order. Such willful failure generally

constitutes a summary offense, but an offense is graded a

misdemeanor of the third degree if the individual convicted

of the offense established residence outside Pennsylvania

with the intention of not complying with the support order

and either (1) the offense is a second or subsequent offense

or (2) the individual owes support in an amount equal to or

greater than 12 months of the monthly support obligation. In

addition, an individual convicted of the offense who is appre-

hended outside Pennsylvania “shall, in addition to any other

sentence imposed, be sentenced to pay the costs and expens-

es of rendition.”



The act amends section 6336.1 of the Judicial Code and pro-

vides that prior to a permanency hearing, a child’s foster par-

ent, preadoptive parent or relative providing care for the

child may submit to the court a report regarding the child’s

adjustment, progress and condition. The Department of

Public Welfare is directed to develop a standardized form for

the report. A county agency or private agency may not take

any retaliatory action against the foster parent, preadoptive

parent or relative for information, comments or concerns

provided in good faith in the report. The act also adds sec-

tions 6338(c) and 6341(d) to the Judicial Code, specifying

that a statement, admission or confession made by, or incrim-

inating information obtained from, a child in the course of a

screening or assessment may not be admitted into evidence

against the child on the issue of (1) whether the child com-

mitted a delinquent act or (2) guilt in any criminal proceed-

ing. Section 6302 of the Judicial Code is amended to add the

definition of “assessment” (an individualized examination of

a child to determine the child’s psychosocial needs and prob-

lems, including the type and extent of any mental health or

substance abuse disorders and recommendations for treat-

ment) and “screening” (a process designed to identify a child

who is at increased risk of having mental health or substance

abuse disorders that warrant immediate attention, interven-

tion or more comprehensive assessment).



The act amends section 5310 of the Domestic Relations Code

to account for a new section 4109 of Title 51 (Military

Affairs) of the Pennsylvania Consolidated Statutes, which

concerns child custody proceedings during military deploy-

ment. Under new section 4109, if a petition for change of

custody of a child of an eligible servicemember is filed with

any court while the servicemember is deployed in support of

a contingency operation, the court may not enter an order

modifying or amending any previous judgment or order, or

issue a new order, that changes the custody arrangement for

the child that existed as of the date of the deployment of the

servicemember. However, the court may enter a temporary

custody order if it is in the best interest of the child. Upon the

return of the servicemember from deployment, the custody

order in effect immediately preceding the date of deployment

is reinstated. If a petition for the change of custody of the

child is filed after the end of such deployment, the court may

not consider the absence of the servicemember by reason of

the deployment in determining the best interest of the child.

In addition, the failure of the servicemember to appear in

court due to such deployment is not, in and of itself, suffi-

cient to justify a modification of a custody or visitation order

if the reason for the failure to appear is the servicemember’s

active duty in support of a contingency operation. Section

4109(f) defines the terms “contingency operation” and “eli-

gible servicemember.”

UPDATE ON LEGISLATION NOT ENACTED

The following bills, summarized in the July 2007,

October 2007, December 2007, April 2008, July 2008 and

DECEMBER 2008


223


LEGISLATIVE UPDATE


DECEMBER 2008


224

October 2008 Legislative Updates, have not been enacted

into law. Therefore, for legislative action to occur on the sub-

ject matter covered in each of the summarized bills, new leg-

islation must be introduced in the 2009-10 legislative ses-

sion.

House Bills 59 (special fund for victims of domestic

violence), 315 (support), 395 (adoption), 398 (adoption), 399

(adoption), 400 (adoption), 401 (adoption), 402 (adoption),

403 (adoption), 677 (custody; paternity), 682 (death benefits

and retirement payments), 804 (adoption), 895 (sibling visi-

tation), 963 (adoption), 1102 (adoption), 1138 (custody),

1538 (custody; paternity), 1546

(child abduction prevention),

1548 (custody), 1759 (custody),

1854 (property rights), 1868 (lia-

bility for the tortious acts of chil-

dren), 2079 (custody), 2172 (sup-

port), 2267 (child protection),

2343 (marriage), 2368 (divorce),

2376 (violation of protection

from abuse orders), 2407 (cus-

tody), 2463 (adoption) and 2685

(custody).

Senate Bills 74 (custody),

269 (special fund for victims of

domestic violence), 366 (agree-

ments regarding the possession or

care of companion animals), 414

(custody), 445 (violation of pro-

tection from abuse orders), 515

(custody), 702 (adoption), 889

(support), 1013 (liability for the tortious acts of children),

1130 (child protection), 1203 (death during a divorce pro-

ceeding), 1520 (alimony) and 1525 (paternity).

It should be noted that House Bill 2343 (Printer’s No.

4342; Prior Printer’s Nos. 3388 and 3691), which is previ-

ously referenced, was reported as amended from the Senate

Judiciary Committee and received first consideration on

Sept. 17, 2008. No further legislative action was taken. The

bill amends section 1503 (persons qualified to solemnize

marriages) of the Domestic Relations Code by specifying

that a former or retired justice, judge or magisterial district

judge may solemnize marriages if he or she (1) has served,

whether or not continuously or on the same court, by election

or appointment for an aggregate period equaling a full term

of office; (2) has not been defeated for reelection or reten-

tion; (3) has not been convicted of, pleaded nolo contendere

to, or agreed to an accelerated rehabilitative disposition or

other probation without verdict program relative to any mis-

demeanor or felony offense; (4) has not resigned a judicial

commission to avoid having charges filed or to avoid prose-

cution by law enforcement agencies or by the Judicial

Conduct Board; (5) has not been removed from office by the

Court of Judicial Discipline; and (6) is a resident of

Pennsylvania.

In addition, Senate Bill 1203 (Printer’s No. 2293; Prior

Printer’s No. 1633 and 2048), which is also previously refer-

enced, was reported as committed from the House Judiciary

Committee and received first consideration on Sept. 23,

2008. Among other things, the bill amends sections 2106

(forfeiture), 2507 (modification by circumstance), 6111.1

(modification by divorce or pending divorce) and 6111.2

(effect of divorce or pending divorce on designation of ben-

eficiaries) of the Probate, Estates and Fiduciaries Code.

These amendments account for a

situation where a party dies dur-

ing the course of divorce pro-

ceedings, no decree of divorce

has been entered, and grounds

have been established as provid-

ed in section 3323(g) of the

Domestic Relations Code. The

bill conforms these four sections

with Act 175 of 2004, which

amended 23 Pa.C.S. section

3323(d.1) and 20 Pa.C.S. section

2203(c). Senate Bill 1203 is

based on the recommendations

of the Joint State Govern-

ment Commission’s Advisory

Committee on Decedents’

Estates Laws.

Finally, since the

October 2008 Legislative Update, House Bill 2830 (Printer’s

No. 4550) was introduced and referred to the House

Judiciary Committee. The bill adds new section 4345.1 to the

Domestic Relations Code and specifies that the “domestic

relations section or the district attorney may file and prose-

cute charges of indirect criminal contempt alleging that an

obligor has willfully violated a support order.” Under the leg-

islation, a sentence for indirect criminal contempt is punish-

able by one or more of the following: a fine not to exceed

$1,000, imprisonment for a period not to exceed six months,

probation for a period not to exceed one year, and an order

for other relief. The obligor does not have the right to jury

trial on a charge of indirect criminal contempt, but he or she

is entitled to counsel. Because House Bill 2830 was not

enacted before the end of the 2007-08 legislative session,

legislative action regarding indirect criminal contempt for

the violation of a support order can only occur if the bill is

reintroduced during the 2009-10 legislative session.

LEGISLATIVE UPDATE


DECEMBER 2008


225

Oh, their fighting is getting frightful,

But our billing is so delightful.

There’s nothing else left to do;

Let us sue, let us sue, let us sue!

Their bickering keeps on coming,

‘Cause hubby won’t fix the plumbing.

And wife’s acting like a shrew:

Let us sue, let us sue, let us sue.

When they finally call it quits,

How they’ll hate shelling out for our fees.

Though their arguing gives us fits,

Our kids want new DVDs!

Their ire is never dying,

It’s their costly last good-bye-ing.

So, as long as our rent’s coming due,

Let us sue, let us sue, let us sue!

Prose: “Let Us Sue!”

By Bob Rains*

*Bob Rains is a professor at the Pennsylvania State University Dickinson School of Law, co-director of that school’s Family Law Clinic,

verse poet, and fabulist author of True Tales of Trying Times: Legal Fables for Today, available at www.willowcrossingpress.com. Copyright

Robert L. Rains.

Reprinted with permission of The Cartoon Bank, The New Yorker, which owns its copyright.

DECEMBER 2008


226

Hey, gang!

You have kids, christenings, bar/bat mitzvahs ... and your significant

others ... and your law practices. Let me know what is going on!!! The

“Sidebar” may be at the end of the Pennsylvania Family Lawyer, but

many read it first.

So let me know what is going on by mail, fax or e-mail:

Gerald L. Shoemaker, Esq., 2 West Lafayette Street, Suite 275,

Norristown, PA 19401. Telephone: (610) 313-1674/Fax: (610) 313-1689/

E-mail: [email protected]

Congratulations to Bob Whitelaw of Philadelphia’s

Obermayer Rebmann Maxwell & Hippel, who has been

elected vice president of the Pennsylvania Chapter of the

American Academy of Matrimonial Lawyers as well as

chairman of the board for the Prince Music Theater.

Julia Swain of Philadelphia’s Fox Rothschild, L.L.P.,

has joined the board of the Hebrew Immigrant Aid Society

and Council for Migration Service of Philadelphia.

At Norristown’s WolfBlock, Drew Taylor has married

Melissa Davenport and Jonathan Hoffman has married

Alyson Rubin.

Best of luck to Aaron Asher, formerly of Raphael

Ramsden & Behers, who is now at K&L Gates in

Pittsburgh.

Ken Horoho of Pittsburgh’s Goldberg, Gruener, Horoho

& Avalli, P.C., has been named to the Irish Legal 100.

Aspinwall’s Barbara Mohajery has changed her firm’s

name to Mohajery & Associates P.C. and has been joined

by associate Langley L. Lupetin.

Huntingdon Valley’s Richard I. Moore of the Law

Office of Richard I. Moore P.C. and his wife, Wilma, on the

birth of their 10th grandchild, Lily Grace Kades, who was

born on Oct. 14, 2008.

Congratulations to Chester County Master Alita Rovito

who will be joining Julia Malloy-Good at West Chester’s

Malloy-Good Family Law, L.L.C.

Stephanie Winegrad has joined Cozen O’Conner in

their West Conshocken offices. She formerly worked in

Doylestown at Williams & Hand.

Gerald Shoemaker is Sidebar Editor of the Pennsylvania

Family Lawyer, and an associate in the Norristown office ofHangley Aronchick Segal & Pudlin, a past member of theCouncils of the PBA and ACBA Family Law Sections andactive in the Montgomery County Bar Association FamilyLaw Section.

Sidebar: Gerald L. Shoemaker, [email protected]

DECEMBER 2008


227

The Pittsburgh Winter Meeting of the Pennsylvania Bar

Association Family Law Section will take place Jan. 16-18,

2009.

On Friday, Jan. 16, the Section’s Governing Council will

meet at 3:30 p.m. Thereafter, there will be a Welcome

Reception for the meeting attendees and guests. For those

who would like to continue to enjoy each other’s company

until later into the evening, a hospitality suite will be avail-

able.

On Saturday, Jan.17, after a full breakfast, a plenary ses-

sion titled “Hot Tips in Complex Support and Equitable

Distribution” will be moderated by Michele Bononi and fea-

ture the Hon. Kim Eaton, Mark Alberts, Mark Ashton, Jay A.

Blechman, Richard Brabender, Rochelle Grossman, Joseph

Martone and Sophia Paul.

At lunch, the Eric Turner Award will be presented and

the Hon. Max Baer will address the attendees.

After lunch, four workshops will be offered. One work-

shop will be “Lending a Hand: Parent Coordinator — Who

and How?” moderated by Natalie Famous and feature the

Honorable Katherine Platt, the Honorable David Wecht,

Stephen Anderer, Steven Cohen Ph.D. and Mark Dischell.

Another workshop will take place, titled, “Ethical Issues

Impacting Collaborative Law: Don’t Cross the Line,” mod-

erated by Pamela Purdy and feature Constance Brunt, Debra

Cantor, Robert Davis, Jr., Ellen Fischer and Paula Hopkins.

Later in the afternoon, two more workshops will be pre-

sented. One will be titled, “GALs and Child Advocates in

Family Law Actions,” and be moderated by Helen Casale

and feature the Honorable Kim Berkeley Clark, Maribeth

Blessing, Craig Bluestein and Lucy Johnston Walsh. Another

workshop, running contemporaneously, will be titled,

“Reboot: E-Discovery and Dissecting Hard Drives,” moder-

ated by Gail Calderwood and will feature Joel Bernbaum,

Russell Davis and James Mahood.

After the workshops, another reception will take place.

For those who wish to continue to socialize until later into

Saturday evening, a hospitality suite will again be available

from 8:30 p.m. until 11:30 p.m.

On Sunday, Jan.18, a continental breakfast will be

served for early risers. A Section Business Meeting will be

conducted during breakfast by Chair Carol Behers.

Following breakfast, Case Law and Rule Updates will be

presented. They will be moderated by Darren Holst and be

presented by the Hon. Maureen Lally-Green, Frederick

Frank, Honorable Anthony Marsili, Carol Behers, Mark

Dischell, Frederick Mogel, Patricia Miles, Elisabeth Molnar,

Lauren Sorrentino, Lindsay Gingrich Maclay, Mary Burchik

and Chris Gale.

The weekend promises to be both an educational, and

entertaining, one for those in attendance. Any suggestions for

a future seminar, and suggested meeting locations, should be

provided to Chair Carol Behers. Questions regarding Section

business may be addressed to any Officers, or members of

Council, at any time during the meetings, or thereafter.

Any reservations for attendance at the meeting in

Pittsburgh should be made directly with the Omni William

Penn Hotel by calling 1-800-843-6664.

Section News: Jay A. Blechman, [email protected]

William L. Steiner, [email protected]

Jay A. Blechman is a partner with the Pittsburgh law firm ofSteiner & Blechman, Section News Co-editor of thePennsylvania Family Lawyer, Past Chair of the PBA FamilyLaw Section and President and Past Treasurer of theAllegheny County Bar Association. William L. Steiner is apartner with the Pittsburgh law firm of Steiner & Blechman,Section News Co-editor of the Pennsylvania Family Lawyer,a past member of Council of the PBA Family Law Sectionand past Chair of the Allegheny County Bar AssociationFamily Law Section.

DECEMBER 2008


228

A long time ago in a galaxy far, far away, there was born

one of the clearest legal minds to grace the world of matri-

monial law in Pennsylvania. Patricia G. Miller was not

always a lawyer. She actually graduated from the University

of Colorado with a degree in chemistry and was a medical

technologist. She was a longtime abortion rights activist in

Colorado and Pennsylvania, where she was on the forefront

of the passage of America’s first liberal abortion law in 1967.

While raising three children she graduated from the

University of Pittsburgh School of Law, remade herself as a

civil rights lawyer, then a partner with the prominent matri-

monial firm of Wilder & Miller until she established the mat-

rimonial law group at Reed Smith L.L.P. She left the world

of advocacy to become the first Equitable Distribution

Master in the Court of Common Pleas of the Allegheny

County Family Division having been appointed by Justice

Max Baer (then Administrative Judge). She has served as the

Equitable Distribution Master and a Complex Support

Hearing Officer for nearly 15 years, winning accolades from

the Pennsylvania Supreme and Superior Courts, the

Allegheny County Common Pleas Court Judges and the Bar.

More significantly, she was a co-author of the first edition of

Pennsylvania’s Family Law: Practice and Procedure

Handbook, the author of The Worst of Times, published in

1993 by Harper Collins, an oral history of the impact of ille-

gal abortions (which she wrote while taking a sabbatical at

Reed Smith), a monthly column for the Pittsburgh Post-Gazette titled “Legal Eagle,” numerous Pennsylvania Bar

Association, Pennsylvania Bar Institute and Pennsylvania

Family Lawyer articles and comments and a decade and a

half of equitable distribution and support decisions. Master

Miller is not afraid to speak her mind in Court and outside of

Court. She has strong convictions and wise thoughts, many

of which were incorporated into her monthly “Legal Eagle”

column. Joel H. Fishman, Ph.D., Allegheny County Law

Librarian and Professor at Duquesne University School of

Law was inspired one night to preserve this wonderful col-

lection. He wanted distribution because these articles are not

only important to us as lawyers, but to our clients and the

general public. This book is great reading and something that

all of us will be giving to our clients to consider. There are

words of wisdom for each one of them — and us, too. Enjoy

the reading, as I did each month.

— David S. Pollock

“Legal Eagle” Column Compilation Now Available

PENNSYLVANIA FAMILY LAW: ARTICLES FROM THE

“LEGAL EAGLE” COLUMN FROM THE PITTSBURGH POST-GAZETTE (1993-2001)

Compiled and edited by Joel Fishman, Ph.D. With a Forward by David S. Pollock, Esq., Pollock

Begg Komar and Glasser. Pittsburgh, PLRI, 2008. xvii, 176p. ISBN: 978-1881751-17-7

$25 per paperback volume; $35 per bound volume (cash or check only)

Name ________________________ Firm __________________________________________

Address ______________________________________________________________________

City ________________________________ State ____________ ZIP code ______________

Phone Number ________________________________________________________________

■■ Paperback ■■ Hardcover No. of Copies ______________________________________

For more information, e-mail [email protected]

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National Council Of Jewish Women, Pittsburgh Section,

(NCJW) has operated child care centers in the Allegheny

County Courts for nearly 30 years. These rooms, well known

to and supported by the Family Law Division of the

Allegheny Bar Association, provide a stress-free and safe

environment for children whose families are involved in

court proceedings. Most recently, the program has expanded

to provide for jurors’ children with advance registration.

Now a DVD is available that depicts all three of these

bright, cheerful children’s playrooms — Family, Municipal

and Criminal Courts. Produced through the auspices of the

Allegheny County Bar Association’s videography depart-

ment, the purpose of this DVD is threefold:

First, it will be played in the courts and on various orga-

nizational Web sites so that caregivers will feel comfortable

in leaving their charges in the care of the volunteers and staff.

Second, it will be utilized to inform lawyers and lay people

that this service exists. Lastly, the DVD will be used to

recruit volunteers.

NCJW urges members of the Family Law Division to

assist in distribution of this information by showing the DVD

to constituents, clients, organizations and associations, or

anyone who might benefit from the services provided in the

rooms.

The DVD is available by calling National Council of

Jewish Women, Pittsburgh Section, 1620 Murray Avenue,

Pittsburgh, PA 15217, (412) 421-6118, or e-mailing admi-

[email protected].

To defray the cost of production and distribution a dona-

tion is requested of at least five dollars ($5.00). Anyone who

orders a copy of the DVD is welcome to retain it and distrib-

ute it to any interested parties.

CHILDREN’S PLAYROOMS IN THE COURTS: NEW DVD AVAILABLE

INDEX TO PENNSYLVANIA FAMILY LAWYER

VOLS. 1-20 (1980-98)viii, 112p; 8 1/2 x 11; cloth binding

All cases (with proper citations), articles cross-indexed by name and subject matterPrepared by and available from:

Joel H. Fishman, Ph.D., Assistant Director for Lawyer Services

Duquesne University Center for Legal Information: Allegheny County Law Library

921 City-County Building, 414 Grant Street,

Pittsburgh, PA 15219

(412) 350-5353/fax (412) 350-5889/[email protected]

Per copy: $35 + $2.45 (7% PA sales tax) + $4 (shipping and handling) = $41.45

Make check payable to Duquesne University Law Library

ADDITIONAL PA. FAMILY LAWYER INDICES AVAILABLE:

Vols. 21-23 (1999-2001) in 24 Pa. Family Lawyer 70 (November 2002)

Vols. 24-26 (2002-04) in 27 Pa. Family Lawyer 63 (September 2005)

Vols. 27-29 (2005-07) in 30 Pa. Family Lawyer 32 (April 2008)

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PBA Family Law Section

2008 Meeting Photos

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PENNSYLVANIA BAR ASSOCIATION FAMILY LAW SECTION WINTER MEETINGJanuary 16-18, 2009 • Omni William Penn Hotel, Pittsburgh

REGISTRATION FORM

Name Nickname or first name for badge

Address

Supreme Court ID number Phone Fax E-mail

Name (and preferred nickname for badge) of Spouse/Guest(s)

Children Name(s) and Ages(s) if attending events

■■ Please check here if you, your child or spouse/guest, require special services, including any special dietary needs.

Please attach a written description of your needs.

REGISTRATION FEE: Registration fee includes up to 9 hours of CLE credit, course materials, 2 cocktail receptions

and hospitality events, breakfast each morning and Saturday’s lunch. (Check One.)■■ PBA Section Member $350 ■■ PBA Member, Non-Section Members $400*

■■ Non-PBA Member $450 *includes Section membership for 2009

■■ Judges & Judicial Law Clerks and those in practice 3 years or less $260 Amount Due ______________

SATURDAY LUNCH:

Registrant (included in registration fee) Will attend ______ Amount Due ______________

Spouse/Guest $40 per person # of Tickets _____ Amount Due ______________

RECEPTIONS:

Registrant (included in registration fee, but for planning purposes, please indicate the receptions you will attend)Friday Reception ■■ Saturday Reception ■■

Spouse/Guest/Children over 12:

Friday $75 per person # of Tickets _____ Amount Due ______________

Saturday $75 per person # of Tickets _____ Amount Due ______________

Both Friday and Saturday $135 per person # of Tickets _____ Amount Due ______________

Note: Spouse/Guest attending reception(s) are welcome to attend Hospitality as guests of the Section.

TOTAL DUE ______________

CLE WORKSHOP CHOICES: (Please check preference. Choice is used for planning purposes and is non-binding.)Saturday 1:30 - 3:00 p.m.: ■■ A or ■■ B Saturday 3:15 - 4:45 p.m.: ■■ C or ■■ D

METHOD OF PAYMENT:

A check, payable to PBA is enclosed. Or charge my: ■■ MasterCard ■■ Visa ■■ AMEX ■■ Discover

Acct#_____________________________________________ Exp. Date:__________ 3-digit security code (Visa & MC Only) ______

Authorized amount:$_______________________________ Signature: ___________________________________________________

HOTEL INFORMATION:

Overnight lodging arrangements should be made directly with the hotel at 1-800-843-6664 Mention that you are part of the PA Bar

Association Family Law Section group. Group Rate (Single/Double): $115 per night, plus taxes

Return completed registration form and payment to: PBA Meetings Dept., P.O. Box 186, Harrisburg,

PA 17108-0186, or fax credit card registration to 717-238-4134.

For further information call the PBA Member Service Center at 1-800-932-0311.

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PBA Family Law Section Summer MeetingYOUR REGISTRATION FEE INCLUDES:

Up to 9 hours of CLE credit ●● Course materials ●● Receptions on Friday and Saturday

Lunch on Saturday ●● Breakfasts on Saturday and Sunday

Schedule of Events(note that all faculty is current as of time of printing but subject to change)

FRIDAY JANUARY 16

3:00 p.m. – 8:00 p.m. Registration

3:30 p.m. – 5:30 p.m. Council Meeting

6:30 p.m. – 8:30 p.m. Reception

8:30 p.m. – 11:00 p.m. Hospitality

SATURDAY JANUARY 17

7:30 a.m. – 3:00 p.m. Registration

7:30 a.m. – 8:30 a.m. Full Breakfast

(Note breakfast is open only to meeting registrants and isnot intended for family members or guests)

8:30 a.m. – 10:15 a.m. Plenary Session:

Hot Tips in Complex Support and Equitable Distribution

Moderator: Michele Bononi

Hon. Kim Eaton, Mark Alberts, Mark Ashton,

Jay Blechman, Richard Brabender, Rochelle Grossman,

Joseph Martone, Sophia Paul

(continued after Break)

10:15 a.m. – 10:30 a.m. Break

10:30 – 12:00 noon Plenary Session:

Hot Tips in Complex Support and Equitable Distribution

(continued)

12:00 noon – 1:15 p.m. Lunch

Presentation of the Eric Turner Award

Keynote address by Hon. Max Baer

a. Lending a Hand: Parent Coordinator - Who and How?

Moderator: Natalie Famous

Hon. Katherine Platt, Hon. David Wecht, Stephen Anderer,

Steven Cohen Ph.D., Mark Dischell

b. Ethical Issues Impacting Collaborative Law:

Don’t Cross the Line (qualifies for 1.5 ethics credits)

Moderator: Pamela Purdy

Constance Brunt, Debra Cantor, Robert Davis Jr.,

Ellen Fischer, Paula Hopkins

3:00 p.m. – 3:15 p.m. Break

3:15 p.m. – 4:45 p.m. Workshops:

c. GALs and Child Advocates in Family Law Actions

Moderator: Helen Casale

Hon. Kim Berkeley Clark, Maribeth Blessing,

Craig Bluestein, Lucy Johnston Walsh

d. Reboot: E-Discovery and Dissecting Hard Drives

Moderator: Gail Calderwood

Joel Bernbaum, Russell Davis, James Mahood

6:30 p.m. – 8:30 p.m. Reception

8:30 p.m. – 11:30 p.m. Hospitality

SUNDAY JANUARY 18

7:30 a.m. – 11:00 a.m. Registration

7:30 a.m. – 8:30 a.m. Continental Breakfast

and Section Meeting

8:30 a.m. – 11:45 a.m. Town Hall Meeting:

On Rules; Support Guidelines; Case Law Updates;

Legislative Updates

Moderator: Darren Holst

Fast Track Appellate Rules Changes:

Hon. Maureen Lally-Green, Frederick Frank

Guidelines:

Hon. Anthony Marsili, Carol Behers, Mark Dischell,

Frederick Mogel, Patricia Miles

Case Law Updates:

Elisabeth Molnar (Custody), Lauren Sorrentino (Support),

Lindsay Gingrich Maclay (Equitable Distribution)

Legislative:

Mary Burchik, Chris Gale

NON-PROFIT ORG.

U.S. POSTAGE

PAID

HARRISBURG, PA

PERMIT NO. 472

PENNSYLVANIA BAR ASSOCIATION

Pennsylvania Family LawyerP.O. Box 186

HARRISBURG, PA. 17108-0186

Mark Your Calendar!UPCOMING PBA FAMILY LAW SECTION MEETINGS

2009 WINTER MEETING ●● JAN. 16-18, 2009Omni William Penn Hotel, Pittsburgh

2009 SUMMER MEETING ●● JULY 16-19, 2009Westin Savannah Harbor Golf Resort & Spa, Savannah, Ga.

2010 WINTER MEETING ●● JAN. 15-17, 2010The Hotel Hershey, Hershey

2010 SUMMER MEETING ●● JULY 8-11, 2010Hyatt Regency Coconut Point, Bonita Springs, Fla.

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pfl december 08 - Pennsylvania Bar Association > Home · PDF fileDECEMBER 2008 PENNSYLVANIA FAMILY LAWYER 202 EDITOR-IN-CHIEF David S. Pollock CO-EDITORS ... laughter, except when