Divorce Law in the Fifty States – Pennsylvania – 8/1/11-7/31/12

By: Lindsay C. Hanifan, Esquire

Adoption

In the Int. of J. F., 27 A.3d 1017 (Pa. Super. 2011). Order granting petition to remove child from foster home was affirmed when foster parent was aware of purpose of hearing and a meaningful hearing occurred, despite the fact that notice to foster parent did not comply with the statutory mandated notice period.

In re K.J., 27 A.3d 236 (Pa. Super. 2011). Department of Human Services’ petition to change dependent child’s placement goal from reunification to permanent legal custody of dependent child to mother’s cousin and her husband was upheld. It was not an abuse of discretion to deny Mother’s request for a continuance of the evidentiary hearing when the evidence supported finding that it was in the child’s best interest to grant the petition.

Alimony (Maintenance)

M.C. v. W.P.C., 44 A.3d 1181 (Pa. Super. 2012). Wife’s actions of going on cruise with friends and without husband does not constitute indignities, and therefore does not relieve husband of obligation to pay wife spousal support, even when husband objected to vacation. In addition, post-separation extra-marital affair cannot be considered as a bar to spousal support because post-separation conduct cannot be the basis for fault-based divorce.

Love v. Love, 33 A.3d 1268 (Pa. Super. 2011). Affidavit signed by husband pursuant to Section 213A of the Immigration and Nationality Act, 8 U.S.C. 1183(a), obligating husband to support wife at a level equal or greater to 125 percent of federal poverty guidelines, is enforceable in action for spousal support. Existence of executed affidavit constitutes exceptional circumstance warranting deviation from guideline support amount.

Assisted Conception

Reber v. Reiss, 42 A.3d 1131 (Pa. Super.2012). Under a balancing approach, wife’s inability to have biological children without the use of the pre-embryos outweighed husbands desire to avoid procreation. Wife was awarded the parties’ frozen pre-embryos in equitable distribution. The parties underwent in vitro fertilization before wife began chemotherapy for breast cancer and did not have an agreement about the disposal of the pre-embryos. The evidence provided was sufficient to establish that wife did not have the ability to reproduce although no medical expert testified.

Kraisinger v. Kraisinger, 34 A.3d 168 (Pa. Super. 2011). Where husband and wife modified their property settlement agreement post-separation so that wife no longer had any assets in order to file for bankruptcy and avoid fulfilling the promissory note entered into between wife and her attorney that had represented her in a child support matter, that attorney had standing to petition for reasonable counsel fees against husband. It was proper for the court to award counsel fees plus interest.

Child Abuse

R.A. v. Department of Public Welfare, 41 A.3d 131 (Pa. Commw. Ct. 2012). Court reversed Department of Public Welfare, Bureau of Hearing and Appeals opinion denying the expungement of an indicated report of child abuse. The hearing officer erred in relying upon a DVD record of child’s interview in lieu of child’s testimony. The child victim’s uncorroborated statements are not sufficient for substantial evidence to support a finding of child abuse.

In the Int. of H.V., 37 A.3d 588 (Pa. Super. 2012). Order granting permanent legal custody reversed when parents cured circumstances which lead to placement. Court did not consider the relationship between parent and children, sibling relationship, and children’s desire to live with parents. Court provided no analysis of effect of separation on siblings.

In re Adoption of S.P., 32 A.3d 723 (Pa. Super. 2011). Evidence did not support finding that father has neglected or refused to undertake his parental rights as much as possible while incarcerated. The Court found father’s incapacity could be cured. The Agency’ petition to terminate parental rights denied.

In re R.I.S., 36 A.3d 567 (Pa. 2011). Incarceration of a parent, alone, is not proper grounds to terminate one’s parental rights. Evidence to support the denial of termination included the parent’s compliance with family services plan, continued contact between parent and child, and the parent’s request for virtual visitation.

Child Custody

J.R.M. v. J.E.A., 33 A.3d 647 (Pa. Super. 2011). Decision granting primary custody based almost entirely on infant breastfeeding and the parties’ difficulty communicating, without consideration of factors in 23 Pa.C.S. 5328 (a) vacated. Order requiring another person present during visitation vacated because there was no finding that the parent was unfit, unable to care for the child, a threat to the child or other rational why another caregiver was necessary. Order barring parent from overnight visits or visits at home vacated because no finding that visitation was detrimental to the child, the home was unsuitable, or parent or other parties within the home were a threat to the child.

DeAngelis v. DeAngelis, 103 Berks Co. L.J. 299 (C.C.P Aug. 1, 2011). Pennsylvania court retained jurisdiction of the parties’ custody matter after one parent relocated out of the Commonwealth but the other parent remained and the child maintained significant contact with Pennsylvania.

Schoen v. Schoen, 104 Berks Co. L.J. 89 (C.C.P. Nov. 15, 2011). Parent that established deep and realistic view of children’s educational and developmental needs awarded ability to decide whether children should attend public or private school and whether the children should be vaccinated when competent medical expert testified that vaccination was in the children’s best interest.

D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. Super. 2011). Custody and visitation statues which require counseling for the non-custodial parent do not apply when the parent is incarcerated and requests visitation while in prison. Court can make a determination on the best interest of the child regarding the incarcerated parent’s request for visitation when counseling has not been provided to the incarcerated parent.

Relocation

C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). A party served notice of a proposed move, subsequently filed a petition for relocation and requested a hearing but had not admitted the proposed move involved a relocation under 23 Pa. C.S.5322(a). The relocation 68 miles away was denied as it significantly impaired the noncustodial parent’s relationship with the child by disrupting the continuity and frequency of contact with the child. The court found that the move was not in the child’s best interest and offering additional custodial time was not sufficient to counter the harm to the noncustodial parent’s relationship with the child.

C.R.F. v. S.E.F., 45 A.3d 441 (Pa. Super. 2012). When evidentiary proceedings begin on or after the effective date of 23 Pa C.S. 5321 et seq., the new Child Custody Act, the acts provisions apply even if the request or petition was filed prior to the effective date.

E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011). Order granting relocation vacated based upon relocating party’s failure to comply with Child Custody Act, 23 Pa. C.S. 531 et seq. procedures and standards. Relocating party must send notice including a proposed revised custody schedule and counter-affidavit by certified mail to all other parties with custodial rights.

J.S. v. S.M., 94 Erie Co. Legal J. 91 (C.P. Aug. 3, 2011). Petition to relocate so that party could join fiancé in North Carolina was denied. The child had strong connection to persons in Pennsylvania, relocating party would be financially dependent on fiancé who lacks support obligation to the child, proposed custody schedule insufficient and the parties maintained a good relationship.

Child Support

Summers v. Summers, 35 A.3d 786 (Pa. Super. 2012). Where the basis for seeking modification of child support order is discussed at conference, it is not a violation of procedural due process for the petition to modify to lack specific allegations of change in circumstance and request for relief as required by procedural rules. Respondent learned of alleged change in circumstance at conference and had opportunity to prepare for de novo court hearing that was held two months later.

Dissolving the Marital Relationship

Showers v. Showers, 60 Cumb. Co. L. Rep. 182 (C.C.P. June 2, 2011). Where wife afflicted with medical condition making the risk of complications from pregnancy increase over time, and she intends to marry another man and start a family, court granted bifurcation of divorce. Grounds for no-fault divorce had already been established, and the marital was estate comprised of mostly debt.

Marriage

Moser v. Renninger, 40 A.3d 156 (Pa. Super. 2012). Where wife filed a divorce complaint, including counts for equitable distribution and alimony, and husband filed a petition for declaratory judgment alleging that no valid marriage existed, the court’s determination that a common law marriage existed between husband and wife was an interlocutory order and therefore non-appealable pending the entry of a final divorce decree. In concluding that common law marriage existed, Court relied upon signed documents and a will that both referred to wife as such.

Vignola v. Vignola, 39 A.3d 390 (Pa. Super. 2012). The doctrine of collateral by estoppel applies to a finding by a conference officer in a support matter that a valid common law marriage did not exist, such that the existence of a common law marriage cannot subsequently be raised in a divorce matter. Although no hearing took place on the issue, the party asserting the existence of a common law marriage had an opportunity to request a hearing de novo and file exceptions to the conference officer’s support order.

Paternity

K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012). Where mother filed a complaint for child support against biological father while separated, but not divorced, from putative father, and biological father argued that the support complaint should be dismissed because of the presumption of paternity in favor of putative father, the court held that although the doctrine of paternity by estoppel continues to pertain in Pennsylvania, the court will only apply the doctrine if doing so is in the best interest of the child. Thus, the case was remanded to the trial court to determine whether the child would be harmed if the support complaint was dismissed.

Names

In re A.A. H.S., 149 Mont. Co. L. Rep. 101 (C.C.P. Nov. 14, 2011). Petition to change name of minor child from Arabic to English name by which he was known granted where child had learning disability, child’s father had been deported, the father had not seen the child since he was a baby, and there was no prospect of re-establishing a bond between child and father.

Property Division

Goodemote v. Goodemote, 44 A.3d 74 (Pa. Super. 2012). Although federal veteran’s disability payments are considered non-marital property, where husband deposited his disability payments into an investment account during the marriage, thereby converting them into permanent investments, the increase in value of the investment account during the marriage is marital property subject to equitable distribution.

Focht v. Focht, 32 A.3d 668 (Pa. 2011). A spouse’s personal injury settlement arising out of an accident that occurred during the marriage is considered marital property, even though the settlement was not received until after the parties’ separated.

McDougall v. McDougall, 49 A.3d 890 (Pa. Super 2012). Where an equitable distribution order was entered awarding marital portion of ex-spouse’s defined benefit pension plan, and the pension benefit is adjusted post-separation to account for cost of living, the adjustment to such pension benefit is subject to distribution according to the order. The court emphasized that the cost of living adjustment was automatic and not merit-based.

Torts

Good v. Whitt, 104 Berks Co. L. Rep. 62 (Oct.20, 2011) – in claim of negligent entrustment of vehicle to young driver where driver used cell phone while operating the vehicle, summary judgment granted in favor of defendant vehicle owner who had no reason to believe driver would use cell phone while driving and had instructed driver not to do so.

Miscellaneous

In the Interest of Jane Doe, 33 A.3d 615 (Pa. 2011). Child’s failure to consult with parent prior to seeking judicial approval for an abortion not grounds to determine if minor able to give informed consent to abortion.