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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