2011 child support law update
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Transcript of 2011 child support law update
Support Update 2011
Brian C. Vertz, ESQ, MBA
Pollock Begg Komar Glasser LLCwww.BVSource.com
Warmkessel v. Heffner
17 A.3d 408 (Pa. Super. 2011)Numerous contempt proceedingsFather failed to appear; bench warrant issued
Warmkessel v. Heffner
21 days in jail before hearingSentenced to 3 months in jail, Father sought credit for “time served”Denial was affirmed on appeal
Brickus v. Dent
5 A.3d 1281 (Pa. Super. 2010)Father filed Petition for Modification, alleging reduction of his incomeParties voluntarily reduced support pending hearing
Brickus v. Dent
Hearing Officer imputed an earning capacity, which increased Father’s support obligationChange in guidelinesFather filed exceptions, claiming that court could not increase support as mother did not file a cross-petition
Brickus v. Dent
Trial court reinstated prior order, finding that Father did not mitigate lossBUT: trial court did not modify the voluntary reduction during proceedings Father appealed to Superior Court
Brickus v. Dent
Superior Court affirmed the increase, retroactive to filing dateRule 1910.27(g) vs. (b)No waiver of retroactivity
Brickus v. Dent
Dissent: Judge BowesWould have imposed a requirement to plead grounds for modification with specificity
Childress v. Bogosian
12 A.3d 448 (Pa. Super. 2011)APL order June 23, 2005Six year marriageWife cohabited with boyfriend, who was her employee
Childress v. Bogosian
November 2006 – Husband filed modification petitionJune 2009 – Master terminated APL as of April 25, 2007 (two years from DOS)Exceptions
Childress v. Bogosian
Trial court restored APL for 4 years in diminishing amountsHusband appealed
Schenk v. Schenk, 880 A.2d 633 (Pa.Super.2005) – entitlement defense
Childress v. Bogosian
Superior Court: cohabitation is not an automatic entitlement defenseBut: cohabitation and short marriage were appropriate grounds for deviationContempt affirmed
Trial Court Decisions
KW v. DB, 110 PDDRR 59 (Lycoming Co., March 11, 2010)Eddins v. Eddins, 110 PDDRR 108 (Lancaster Co., August 16, 2010)Karch v. Karch, 110 PDDRR 54 (Centre County, 2010)
Support Rules
Rec. 109 – Social Security benefit in equally-shared custody casesRec. 110 – Split/divided custody with different percentagesRec. 111 - Overpayments
Turner v. Rogers
U.S. Supreme Court Docket No. 10-10, June 20, 2011Does Pennsylvania’s Child Support Contempt Procedure Comply with New Mandates from the U.S. Supreme Court?
Turner v. Rogers
Civil contempt proceedings Addicted to meth, marijuana; broke back; applied for disability and SSISentenced to one year imprisonment
Turner v. Rogers
Right to court-appointed counsel14th Amendment Due Process Clause (not 6th Amendment right to counsel)Matthews v. Eldredge, 424 U.S. 319, 335 (1976)
Turner v. Rogers
No right to counsel(1) the simplicity of judging the defendant’s ability to pay(2) the risk of assymetry(3) availability of alternative procedural safeguards
Turner v. Rogers
Exceptions:Title IV-D casesComplex cases
Turner v. Rogers
Dissent: Justice Clarence ThomasNo Gideon rights in civil casesAlternative safeguards first suggested by Attorney General on appeal
Turner v. Rogers
Pennsylvania’s contempt procedures1910.25 through 1910.25-6Suggested improvements: emphasis on present ability to pay, better forms
Turner v. Rogers
Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977)Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa.Super.1995)Hyle v. Hyle, 868 A.2d 601 (Pa.Super. 2005)
Turner v. Rogers
Barrett: …the crucial question is not whether he willfully and contemptuously violated the original orders, but whether he had the present ability to comply with the conditions set by the court for purging himself of his contempt.
Turner v. Rogers
Crislip v. Harshman, 365 A.2d 1260 (Pa.Super.1976)Travitsky v. Travitsky, 534
A.12d 1081 (Pa.Super.1987)Wetzel v. Suchanek, 541 A.2d
761 (Pa.Super.1988)
The Newest Cases
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