Montgomery County Family Law Blog

When the words "child support" are mentioned one tends to conjure up the typical scenario of a parent who only has custody every other weekend or so, also known as the noncustodial parent, paying the parent who has the children most of the time, the custodial parent. But can the custodial parent ever be required to pay the noncustodial parent child support? It may seem counterintuitive, but the Pennsylvania Supreme Court has ruled that the primary custodian of the children may be liable to the noncustodial parents for a child support obligation.

In Colonna v. Colonna, 855 A.2d 648 (Pa. 2004), the Court was faced with a scenario where the custodial parent was an extremely high-earning individual and the noncustodial parent only had a modest earning capacity. Despite this discrepancy in income, the lower appellate court had held that "directing support payments to a noncustodial parent . . . serves no purpose for the children after custody changes and would only confer a personal benefit upon the non-custodial parent if the payments were allowed to continue." Colonna v. Colonna, 788 A.2d 430, 442 (Pa. Super 2001). The PA Supreme Court reversed and stated "where the incomes of the parents differ significantly, we believe that it is an abuse of discretion for the trial to fail to consider whether deviating from support guidelines is appropriate, even in cases where the result would be to order child support for a parent who is not the primary custodial parent." Colonna v. Colonna, 855 A.2d 648, 652 (Pa. 2004).

The Court concluded that a trial court should inquire into whether the noncustodial parent has the "appropriate" housing and amenities during his or her period of partial custody. "Appropriate" was defined to fall somewhere less than equal to the custodial parent's accommodations but more than merely adequate. Id. So in sum under the Colonna rule, a wealthier custodial parent may have to make child support payments to the noncustodial parents in order for the noncustodial parent to maintain or purchase appropriate accommodations for the children.

If you or someone you know is facing a custody or child support issue, please contact our office. We would be more than happy to help.

The Supreme Court of Pennsylvania was recently faced with the question of whether a personal injury settlement reached after final separation of the parties involving an injury that was sustained during the marriage was marital property subject to equitable distribution in divorce. On November 23, 2011, the Court decided Focht v. Focht, 32 A.3d 668, where Justin E. Focht was injured at the Grand Prix Family Raceway in 1999 while still married to his then-wife, Tracy L. Focht. The parties separated on August 1, 2001, a divorce complaint was filed in February 2004, and a final decree was entered in January 2009. Meanwhile in 2004, Justin entered into a settlement agreement for his injuries sustained in 1999 at the Raceway. The equitable distribution master concluded that Tracy was entitled to a share of this settlement and the trial court agreed. Justin appealed the decision to the Superior Court which reversed the decision relying on the fact that the settlement was not reached until after the parties had separated.

In Pennsylvania, all property acquired during marriage is marital property subject to equitable distribution upon divorce with some exceptions. One such exception is that marital property does not include "any property received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received." 23 Pa. Con. Stat. § 3501(a) (2011) (emphasis added). In this case, the Court then focused its analysis on the term "accrued" and relying on common definitions and historical precedent determined that "a cause of action accrues only when one has the right to institute a suit." Focht, 32 A.3d at 671 (quoting Bell v. Brady, 31 A.2d 547, 549 (Pa. 1943)). Therefore, the Court determined that because Mr. Focht could have instituted a suit based on his injury immediately after it occurred, which was during the marriage, the cause of action for negligence accrued during the marriage and the settlement from the suit does not fall within the exception to marital property prescribed in § 3501(a) of the Divorce Code. Thus, the Court reversed the superior court and held that the Mr. Focht's settlement was subject to equitable distribution with his former spouse.

If you or someone you know is facing divorce and concerned about how their assets will be divided please contact our office. We would be more than happy to help.

Prior to the adoption of the Child Custody Act on January 24, 2011, trial judges in Pennsylvania had broad discretion in awarding custody, so long as the arrangement was in the "best interests of the child." Likewise, family lawyers could extensively tailor their arguments in their client's favor around particular conditions affecting the child while only making cursory points regarding other factors affecting the child's best interest and were still able to obtain a ruling in their client's favor. Those days have come and gone.

The broad discretion that trial judges had in determining the "best interests of the child" often resulted in an inconsistency of orders for factually similar cases issued by judges residing within the same courthouse and even greater discrepancies between custody awards across the commonwealth. Recognizing this and in an attempt to improve consistent application of the law, the Pennsylvania legislature enacted the new Child Custody Act which requires trial judges to consider 16 explicit factors when determining custody and 10 factors to take into account when deciding whether a parent may relocate. As recent appeals to the Superior Court have shown, trial judges had better follow the letter of the new Child Custody Act or otherwise face remand.

In E.D. v. M.P., the Superior Court remanded a ruling by the trial court where relocation was awarded but the trial court failed to articulate how the 10 factors were applied. Similarly in J.R.M. v. J.E.A., the trial court record omitted consideration of the 16 factors for determining custody in its record, and the Superior remanded concluding that due to the factors' absence the trial court "erred as a matter of law."

In sum, the new Child Custody Act requires that trial judges articulate the reasoning for their custody and parental relocation decisions based on the statutorily prescribed factors. Consequentially, any family practitioner worth his weight should be very familiar with these factors and be prepared to argue them in their client's favor before entering the courtroom.

If you or someone you know is currently facing a child custody or relocation issue please feel free to contact our office. We would be more than happy to help.