Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20201

Pennsylvania Family Lawyer

By Michael E. Bertin

I originally wrote my From the Chair column at the end of Feb-ruary 2020 for this present publi-cation, which was very upbeat. It had contained my reflections of the Winter Meeting in Hershey and contained the excitement looking forward to the Summer Meeting scheduled for July 9-12, 2020 at the Sagamore on Lake George, NY. However, the world has changed since then as we try to muscle through the COVID-19 pandemic. As such, my From the Chair column now re-flects the present circumstances.

For most of us, our journeys to work now consist of walking down the hall or stairways of our homes and turning on our computers or picking up our phones. The new normal is remote access to our offices. The goal posts keep getting moved back and the end is not clearly in sight.

But, we must be nimble and adjust to the circumstanc-es. At the Winter Meeting, we took a hard look at civility with the judges during the afternoon panel. At this time, this is paramount. Now, more than ever, we must rely on our ability to problem solve, work together, and provide good and compassionate counsel to our clients. This is especially true in child custody situations. We are now faced with questions that have no certain answers. How-ever, with creativity, we can work through it. Though the courts are now closed, they will eventually be reopened, and what happens now will impact the cases later. One thing is for sure — the parties should not take advantage of one another in these unfortunate circumstances.

There are opportunities available to us at this time both professionally and personally. Professionally, we can move toward resolving small and large issues or even

settling the entire case, streamlining our methods of practice, and improving our technological skills. Per-sonally, we should try to be optimistic, learn new skills and hobbies, increase exer-cise, and stay connected (or reconnect) with friends and family.

I recognize the total excitement that all of you had looking forward to the Summer Meeting at the Sagamore. The excitement was evidenced by the fact that by late February res-ervations for rooms in the historic building at the hotel were selling out, even though the brochure was not even sent to the membership. Unfortunately, under all of the present circumstances and the tremendous uncertainties that exist for the future surrounding the pandemic, your executive committee recently held a special meeting, and has, reluctantly, concluded that it was best for all concerned to cancel the Summer Meeting at the Saga-more. I know this is a tremendous disappointment for all of us, but we will all be able to look forward to the next meeting in January 2021 in Lancaster. Also, we are eyeing the summer of 2023 to hopefully return to the Sagamore

Table of ContentsFrom the Editors ........................ 3

Articles ....................................... 4

Judicial Corner ........................... 16

Federal/Military Corner ............ 21

Technology Corner .................... 22

Legislative Update .................... 23

ADR Corner ................................ 27

Case Notes ................................. 29

Bar Review ................................. 39

Get To Know a Member ............ 40

Technology Corner:

Remote Working Edition ............41

Advice to My Younger Self .........42

Volume 42, Issue No. 1

From the Chair

Michael E. Bertin

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Max-well & Hippel LLP. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure. He is the chair of the Family Law Section of the Pennsylvania Bar Association, a Fellow of the American Academy of Matri-monial Lawyers, former chair of the Family Law Section of the Philadelphia Bar Association, and the current co-chair of its Custody Committee. He can be reached at 215-665-3280 or michael.bertin@obermayer.com.

continued on page 3

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20202

Pennsylvania Family LawyerEditors-In-Chief ....................................Elizabeth J. Fineman, Judy McIntire SpringerEditorial Board .....................................Mark R. Ashton, Julie A. Auerbach, Colleen McCue Norcross, Adam TankerContributors .........................................Joel Bernbaum, Joel Fishman, Yvonne Hursh, Mark Sullivan,

Alicia Slade, Carolyn ZackFounder/Former Editor-in-Chief ..........Jack A. Rounick (Vol. 1-7)Former Editors-in-Chief........................Judge Emanuel A. Bertin (Vol. 8-17), David S. Pollock (Vol. 18-40)

Authors’ submission due dates: summer issue — May 15; fall issue — Sept. 1; winter issue — Nov. 1

Family Law Section Executive BoardChair ...................................... Michael E. BertinChair-elect .............................. David C. SchanbacherFirst Vice Chair ....................... Helen E. CasaleSecond Vice Chair .................. Darren J. HolstSecretary ................................ Hillary J. MoonayTreasurer ................................ Melissa M. Boyd

The PBA is continuing to develop and share resources to help guide you through the COVID-19 pandemic. They include:

• PBA President John’s videos on advocacy efforts related to: the Pa. Supreme Court’s recent order allowing for all distance learning credits in 2020; remote notarization; outreach to the executive, judicial and legislative branches and about her COVID-19 Task Force and its re-sources guide.

• COVID-19 Online Resources Guide for Lawyers that’s continually being updated with new information related to pro bono services; mental health; courts, federal and state information to assist small businesses; CLE resources and more. Join the more than 4,600 lawyers who have already accessed the guide — most using it multiple times.

• PBA Legal Ethics and Professional Responsibility Committee’s PBA Formal Opinion 2020-300 in response to questions from Pennsylvania lawyers related to their ethical obligations when working remotely.

• PBA Preferred Partners offering helpful resources and special discounts during COVID-19 crisis

Coronavirus Resources for PBA Members

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20203

From the EditorsBy Elizabeth J. Fineman and Judy M. Springer

We know that this is a difficult time for everyone, and it is hard to know exactly what to say. Life as we know it has been upended, and we are all in this surreal time just try-ing to figure out what to do, how to get into some sort of routine and how to work from home. It is our hope that this issue can bring a distraction or some sense of routine to all of you. It is also our goal to provide some resources to help during this time.

The Pennsylvania Bar Association has an online COVID-19 Resources Guide for Lawyers that provides information and resources in one place. The link to that page is https://www.pabar.org/site/News-and-Publica-tions/COVID-19-Resources-Guide. Likewise, the Unified Judicial System of Pennsylvania has an online Coronavirus Information Page. This page includes, among other re-sources, the various orders pertaining to the Pennsylvania Supreme Court, Superior Court, Commonwealth Courts and county courts. The link to that page is http://www.pacourts.us/ujs-coronavirus-information.

It is hard to believe that we are in our second year as editors of the Family Lawyer, especially with March seeming like one of the longest months ever. While so much has changed in the last few months, we are glad that we are able to get this issue out to all of you who have provided a tremendous amount of support. Thank you for all of your feedback during this past year and to everyone who has contributed. We would like to say a

special thank you to our new case notes editors Julie A. Auerbach and Colleen McCue Norcross. Thank you to Rochelle “Shelly” Grossman and Carolyn Zack who are contributing the new ADR Corner. Thank you also to Dan-iel Bell-Jacobs and Anthony Hoover for taking over the Rules Updates column. We very much appreciate all of their assistance with each and every issue.

We are also pleased to announce that the index to the Family Lawyer has been updated and is available on the PBA website at https://www.pabar.org/site/For-Lawyers/Sections/Family-Law-Section/News-and-Publications/Pennsylvania-Family-Lawyer. This is a comprehensive in-dex of past issues of the Family Lawyer and we anticipate that you will find it helpful.

We hope that everyone is staying home, staying safe and staying healthy. Our thoughts are with all of you and your families during this time.

Elizabeth J. Fineman Judy M. Springer

Elizabeth J. Fineman is a partner at Antheil Maslow & MacMinn LLP in Doylestown. She is co-chair of the Bucks County Bar Association Family Law Section, a member of the Doris Jonas Freed American Inn of Court and served on the executive board. Fineman earned a bachelor of arts in gov-ernment and law from Lafayette College and earned both a Juris Doctor and LL.M. in taxation from Temple University Beasley School of Law. efineman@ammlaw.com 215-230-7500

Judy M. Springer is a partner at Astor Weiss Kaplan & Mandel LLP. Springer is an active member of the PBA Family Law Section. She is the author of the international custody section in the Custody Law Practice and Procedure book published by PBI and has written and lectured numerous times regarding family law issues. She is a graduate of Virginia Tech and Villanova Law School. jspringer@astorweiss.com 215-790-0100

for that Summer Meeting. We are exploring options to provide some of the programing that we planned for the now-canceled 2020 Summer Meeting online. We will keep you updated regarding the same.

The section meeting normally held on the final day of the Summer Meeting where the new officers and council members are elected will be held via Zoom on Friday, July

10, 2020, at 3:30 p.m. The details of the meeting will be provided.

I hope that you and your families are, and will remain, safe and healthy.

Best regards,Michael E. Bertin

From the Chaircontinued from page 1

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20204

Articles

continued on page 5

Colonna Lives!?!?!

Articles

By Mark R. Ashton

In the perhaps “too many years” I have been reading and reporting on family law cases, there are times when a reported case inspires a collective shrug from the family law bar. One prominent example is Beasley v. Beasley, a case that held that because a law firm was owned by a single lawyer, it could not have goodwill value associated with it. That ruling seemed to ignore the fact that Jim Beasley, the owner of the practice, employed a number of fellow lawyers who were business generators in their own right.

Another case that seemed consigned to history was Colonna v. Colonna. In this Supreme Court case written by Justice Sandra Newman, the court held that a parent could secure an award of child support, notwithstanding the fact that the payor had primary physical custody. 855 A.2d 648. What made this 2004 decision so challenging was the fact that Pennsylvania is an income shares state where the formula adopted presumes that the primary custodian is getting support from a non-custodial parent. Every once in a while one hears about a Colonna case, but insiders tended to assume that the party bringing the claim was unaware of the “history.”

In a precedential decision issued by Retired Senior Judge Colins on Jan. 31, 2020, the Superior Court af-firmed a child support award of $1,558 to a non-custo-dial parent. T.M.W. v. N.J.W., 2020 Pa. Super. 17 (Jan. 31, 2020).

Both parents work in health care. Father is a doctor at Geisinger earning $530,000. Mother held employment in nuclear medicine until her employer shuttered the facility she worked at in 2015. The parties’ property settlement agreement in 2011 was based on shared physical custody and mandated payments of $2,800 a month from father to mother. In 2018, father filed a petition to modify based on a custody stipulation that gave father half of summers and 82% custody during the school year. Fifty-fifty custo-dy for 20% of the year and 82/18 for 80% comes to about 75/25% on the year as a whole. In 2018, father also had a surge in earnings that he said was not going to be repli-cated such that his gross was $670,000.

Mother testified that she held a variety of part-time jobs once her work at Geisinger ended. In early 2019, she found new employment at $72,600 a year. Father’s voca-tional expert found she could earn $85,000 but provided no clear path to that higher paying job. While mother was between jobs, she accumulated significant credit card

debt ($40,000) and nearly lost her home. In a word, she was struggling. Her mortgage is $1,850 per month. Moth-er has a boyfriend earning $42,000 annually. Evidence showed that he contributed to the household although the precise amount is not clear.

The hearing officer found a guideline support level of $1,948 but reduced it to $1,558 because the boyfriend was contributing.

Father appealed since he effectively had 75% custo-dy. He wanted the order terminated in its entirety and suggested that under Colonna, and Saunders, 908 A2d 356 (Pa. Super. 2006) he was entitled to be the payee of support.

While the panel opinion is decisive in holding that a partial custodian can still be eligible to receive child sup-port, the actual facts forming the basis for such an award are less clear. The court observed that, but for father’s agreed support payment, mother may not have been able to keep the home she acquired after divorce. She was found to lack assets sufficient to provide “appropriate housing and amenities,” while exercising her 25% custo-dy. The court relied heavily upon the past precedent of payments notwithstanding shared physical custody and that father’s income remained high, noting at one point that the agreed upon initial amount of $2,800 would still be $2,000 even if the reduction from 50% to (they say 36%) custody was factored in. It also found that a parent has no duty to move away from a child to find suitable employment where that move would “interfere” with her ability to co-parent. That holding by itself is one that parents of all stripes will want to rely upon. The case was distinguished from Saunders where the courts explicit-ly found that the father seeking child support was not doing enough to find employment that was better paying.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20205

Colonna Lives

Articles

continued from page 4

Curiously, the current case believes Saunders can be distinguished because the father seeking support in that case had never previously received child support from the primary custodian where this parent had by agreement been getting $2,800 a month.

Father’s argument that the support order did not con-sider deviation factors, other than income from the live-in boyfriend (Pa.R.C.P. 1910-16-5(b)(3)) was dismissed as waived under Pa.R.A.P. 1925(b). Father’s request for a contribution to the child’s private school tuition was also denied because private school was his project and the cost (unspecified) was de minimis in relation to his income. It also appears that father had previously litigat-ed a contribution toward private school and lost the issue in trial court without taking an appeal. Consequently, the ruling was considered the law of this case, not eligible to re-litigate. See also Llaurado v. Garcia-Zapata, 223 A.3d 247 (Pa. Super. 2019)

Last, but certainly not least, is the Superior Court’s treatment of retroactivity. As we noted, father’s earn-ings in 2018 were almost $700,000. He offered that this income level was not going to be sustained in 2019 as it involved a non-recurring project. The opinion states: “It is not an abuse of discretion for a trial court to base child support on the most recent year’s actual income, even if there is testimony that some of that income will be non-recurring….” If a substantial decrease occurred in 2019, the father could file a petition to modify. Herein lies the catch. The instant petition was filed in October 2018 and heard by a master in February 2019. His exceptions were decided by May 7, 2019. So, taking him at his word for purposes of this argument and the extra $10,000 a

month in gross income ceased in 2018, when is it that he should file his modification? There is no easy answer to this problem and it is one that occurs with more and more frequency. It is common today for contingent income to equal or far exceed salary. That contingent in-come is episodic, typically coming as part of an award of stock equivalents. We are inclined to view these awards as worthy of 12-month modifications. However, the signal in this case is more amorphous. Mein docteur, you have said your bump in income in 2018 will not repeat in 2019 and we have no evidence to dispute that. Nevertheless, even though it is 2019 already, we are ordering you to pay support at 2018 levels. You are welcome to seek a modification at some unspecified time in the future when you can prove that 2019 was as you forecast.” However, until then, be prepared to pay support on income you no longer earn.

When we went to a guideline system 35 years ago, it was supposed to provide uniformity and a measure of bureaucratic certainty. Unfortunately, the ways in which those in the upper economic classes are paid is now rid-dled with uncertainty as is consistent employment itself.

Mark R. Ashton is a partner in the Exton office of Fox Rothschild LLP, past chair of the PBA Family Law Section, editorial board, Pennsylvania Family Lawyer, member, Chester County Bar Association (former chair, Domestic Relations Section), Montgomery Bar Association (former director) and member, Board of Directors, Historic Yellow Springs (president, 2009-11).mashton@foxrothschild.com610-458-4942

PBA Board and House Meetings to be Held by Videoconference

All face-to-face meetings and events associated with the May 6-8 PBA Annual Meeting have been postponed because of COVID-19. The May 6 Board of Governors meeting and the May 8 House of Delegates meeting will be held by videoconference.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20206

continued on page 7

Tax Reform Plus One Year: What We Better Under-stand, Its Impact on Divorce and the New Tax Forms

Articles

By: Mitchell Benson, CPA, MT, CFF; Adam Poutasse, CPA; and Aliah Molczan

Over the last year, family law practitioners worked to understand how the Tax Cuts and Jobs Act (TCJA) af-fected personal tax consequences in divorce matters. In particular, the fallout from the alimony repeal and new support formula created new considerations in equitable distribution and net income available for support calcula-tions. A host of other changes, from child tax credits and dependents to limits on deductions, have altered many of the basic tax guidelines that many of us know and rely upon. One tax filing year has passed since the historic and sweeping changes of the TCJA took effect. At last, we now fully appreciate the influence of these changes.

The purpose of this article is to review some of these changes, identify planning opportunities and other strat-egies, and to highlight what we’ve learned since the first implementation of the TCJA. We also examine some of the divorce related tax nuances as related to equitable distribution and support determinations.

Households and FamilyPrior to TCJA, much of the negotiations to leverage tax

rate differences between divorcing couples centered on deductible alimony and dependency exemptions. While the tax forms still require dependents to be reported, the dependency exemption amount has been reduced to zero through 2025. However, what remains important is the one entitled to claim the dependent because the parent claiming the dependent is also entitled to claim child tax credits and the other related education credits. As in the past, a custodial parent may surrender the dependency exemption by filing tax form 8332, which the non-custodi-al parent must attach to their tax return in order to claim the credits. Marital settlement agreements should still reference dependents but make particular reference to the temporary suspension of the deduction, reserving the right to the deduction to the earlier of a change in status or the expiration of these changes in year 2025.

The child tax credit is $2,000 per child for dependent children under age 17. Beginning in 2020 the full amount of the credit is available if modified adjusted gross income is under $400,000 for married filing jointly and $200,000 for all other filers. The credit has much greater value than a deduction and has been increased to benefit middle and higher income taxpayers.

The beneficial tax status, head of household, affords separate filers with qualified children numerous benefits aside from lower marginal tax rates. Since many lower- and middle-income filers no longer itemize their deduc-tions, the benefit of the standard deduction cannot be underestimated. The head of household standard deduc-tion, $18,350 for 2019 and $18,650 for 2020, is greater than 50% of the single filing status.

Capital Gains and LossesIn addressing capital gains and losses, practitioners

must remember that there are three tax rates applicable to long-term capital gains. The difference in the rates (0%, 15% and 20%) can have a material impact on the tax result. In dividing assets subject to long-term gains, do not assume a flat rate of 15% or 20%. The chart below summarizes the rates and brackets.

Rate Single Total Income MFJ Total Income0% $0 to $40,000 $0 to $80,00015% $40,001 to $441,450 $80,001 to $496,60020% Over $441,450 Over $496,600

You may have to apply different tax rates on capital gains if your gains cross the above brackets. By way of example, if ordinary income is $350,000 and capital gains is $100,000 (single filer), then $91,450 of gain income (the amount that falls into the lower bracket) is taxed at 15% and $8,550 of gain income (the amount in the higher bracket) is taxed at 20%.

The TCJA incentivized investing in economically dis-tressed communities, or areas deemed Qualified Oppor-tunity Zones (QOZ), by delaying and possibly reducing capital gains tax payments. Capital gains, either short- or

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20207

Articles

Tax Reform Plus One Year

long-term, must be reinvested in Qualified Opportunity Funds (QOF) within 180 days of date of sale. Reinvested gains held for 7 years and made before 12/31/2019 are reduced by 15%. If the investment is held for 5 years and made before 12/31/2021, the taxable gain is reduced by 10%. If the investment is held for 10 years, the taxable gain is reduced by the percent previously mentioned and 100% of the additional appreciation from the new invest-ment is non-taxable. Under the current law, the balance of the deferred gain must be recognized the earlier of the date of the sale of the property or the year 2026. The tax is applied to the balance of the gain (95% or 85%) at the end of either the 5- or 7-year holding period, respectively. Taxpayers can take advantage of the QOZ benefit and de-fer any short- or long-term capital gain as well as gains on sales of business properties. As a result, many QOZ funds have been established for investors to easily rollover gain proceeds. The chart below summarizes these options:

Investment/ActionCapital Gains (short- and long-term)/Invest in QOF Within 180 Days After SaleHeld in QOF for five Years (before 12/31/2021)/10% Tax Reduction on Reinvested GainsHeld in QOF for Seven Years (before 12/31/2019)/15% Tax Reduction on Reinvested GainsHeld in QOF for 10 Years/Applicable Tax Reduction AND 100% Tax Free Gain Appreciation on the new asset

By way of example, assume a stock purchase at a tax basis of $100,000 and then, one year later the sale for $300,000. The long-term capital gain is $200,000 ($300,000-$100,000) and subject to a 15%-20% capital gain tax (assume $40,000; $200,000 x 20%). One can opt to delay this $40,000 tax payment if the $200,000 gain is reinvested into a QOF or QOZ within six months of selling the stock. If the $200,000 gain remains invested in the QOZ for five years, the tax bill on this $200,000 is reduced by 10% (or $4,000; $40,000 x 10%). If it remains invested for seven years, the tax bill is reduced by 15% (or $6,000; $40,000 x 15%). If held for at least ten years and the QOZ properties appreciate so that the investment has grown to a total of $300,000, the tax is reduced by 15% ($6,000) and the $100,000 appreciation on the new asset is tax free.

The tax on the deferred gain is a marital liability that must be accounted for and valued as of the asset division date, though payable after 5 or 7 years. Conversely, for

purposes of income available for support, consider the necessity of the rollover against whether such action deprives a spouse and/or children of support. This tax benefit investment decision is similar to a Section 1031 exchange where the gain from a sale of real estate is deferred into another real estate investment. However, the difference is that a Section 1031 exchange tax liabil-ity is unknown in amount and timing whereas the QOZ deferred tax liability amount and due date are known (assuming the law doesn’t change).

Form 8949 is filed in the year of sale to report eligible gains invested in QOZs and includes the election to defer the gain. Look for new IRS form 8997 which is now re-quired to track the deferred tax from a QOZ investment.

Pass Through Real Estate and Business OwnersThere is little doubt that some of the more sweeping

changes brought by the TCJA impact sole proprietorships, pass through businesses and real estate owners. When dividing these business assets in equitable distribution, be mindful that, for tax purposes, the sum of the parts does not always equal the whole. The Section 199A deduction may reduce the effective federal tax on sole proprietorships, pass through businesses, and real estate owners but has uneven results with complex restrictions. Some of the most significant changes are explained be-low:

1. Section 199A allows for up to a 20% deduction for qualified trade or business income. While the benefit of the deduction may be limited depending on the amount of income reported, at certain levels, the full 20% is allowed. For example, a Schedule E rental which gener-ates $20,000 of taxable income may generate a $4,000 deduction. But additional elements must be considered. For example, is a single rental property a trade or busi-ness? Are properties owned by partnerships a trade or business? For these nuances, a safe harbor was provided that allows the full deduction if over 250 hours of services are spent in each year for the rental enterprise. Multiple properties can be aggregated to reach this threshold. But what happens when the properties are divided in di-vorce? Suddenly, one party may not qualify and lose the deduction while the other party may still benefit. In eval-uating the after-tax income post-divorce, the involvement of each spouse in each business rental must be evaluated to determine correct net of tax cash flow. We have ex-perienced errors by opposing experts in not considering

continued from page 6

continued on page 8

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20208

ArticlesTax Reform Plus One Year

application of this provision.

2. New tax form 8995 is now required to calculate and track the Section 199A deduction and carryovers. When reviewing tax returns in a year that income from pass through businesses and rentals are reported, the follow-ing items are either marital assets or will impact the tax outcome of the division of assets:

a) Phase-outs. Deduction for 199A is phased out at different thresholds. Consequently, income from certain service businesses and other pass through entities may qualify for the 20% deduction when married and not apply when separated.

b) Aggregation of businesses. To qualify for the Section 199A deduction taxpayers may elect to aggregate busi-nesses. This will almost always apply when multiple real estate entities are owned. The same person or group of persons, either directly or indirectly, must own 50% or more of each trade or business to aggregate. In divorce, the issue of whether the remaining properties retained by the spouses can be aggregated must be explored.

c) Loss carryovers. Losses from businesses that could have qualified for the 20% deduction but instead, due to an overall loss in a particular year from the combined flow-through, must be carried over. This reduces the benefit of the 20% deduction. This carryover is a marital tax future cost (detriment) that will adversely impact the owner and must be accounted for when dividing assets.

3. A restriction on tax deductible interest expense (IRC Section 163(j)) received little fanfare until many practi-tioners began preparing extended returns for real estate and other business owners. This is an expense deferral provision which can have serious short-term implications and will apply to certain business and/or real estate investors. While, again, the rule is complex, the critical issue for equitable distribution is to identify the carryover which is reported on IRS Form 8990.

The most common candidates to have an issue un-der 163(j) are owners of medium to large businesses or groups of businesses whose aggregate gross receipts are $26 million or more. The current limit on deductible interest is based on a formula that over the next few years becomes more restrictive. In equitable distribution and for income available for support, the deferral of the deduction raises current taxes by the loss of the interest

deduction. The taxes due are currently payable and the deferred interest may or may not be realized quickly. Besides the prepaid tax, which may or may not be later mitigated with the deferred deduction, the additional tax reduces income available for support.

4. Overall business loss limits have surprised many fil-ers who are accustomed to assuming that business losses are fully allowable against all forms of income. Section 461(i) has altered this practice, capping annual business losses at $510,000. Once you pass the at-risk and passive loss benchmarks, this new cap restricts the loss allowed in the current year with the unused portion as a net oper-ating loss in the succeeding year (further limited to 80%).

By way of example, assume a divorcing client suffers a $1,010,000 business loss in their operating S corporation and has capital gains and dividend income of $810,000. On their return, they will report a net of $300,000 in taxable income despite having lost $1,010,000 in their business. The unused loss of $500,000 is carried to the next year and can offset up to 80% of that years’ taxable income. In equitable distribution, the excess loss is a mar-ital asset similar to a passive loss carryover.

The 2019 Secure Act’s Impact on Divorcing CouplesThe Secure Act was passed Dec. 20, 2019 and con-

tained some significant changes for divorcing couples. Most impactful, the required minimum distribution age has been raised from the longstanding 70 ½ years old to 72 years old – effective for individuals who attain the age of 70 ½ after Dec. 31, 2019. This allows more couples to defer taking the funds and allow further growth and tax deferral. This may hinder spouses seeking support due to the later requirement to withdraw funds that would have been available 1 ½ years earlier under the old rules. Some spouses, however, continue to work until the mandatory withdrawal date thereby increasing earned income avail-able for support.

The Secure Act added a requirement that, beginning in 2021, plan administrators must forecast future income for all plan participants. This should be added to the discov-ery requests seeking information about retirement plans. The new rules apply to defined contribution plans as well.

The benefits of stretch IRA’s have been curtailed by the Act such that any non-spouse beneficiaries must with-draw the entire plan interest within a 10-year period. As we all represent more and more Baby Boomers with

continued from page 7

continued on page 9

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 20209

Articles

Tax Reform Plus One Year

continued from page 8

inherited IRA’s, the timing of the income taxes payment with an inherited IRA is now more definite. The consol-idation of withdrawals into a 10 year period will create a bunching of income to beneficiaries increasing the tax bracket of the recipient and reducing the benefit on de-ferring the tax over a longer period of time.

Section 529 Plans have been enhanced to allow greater flexibility such that distributions may be made to reduce up to $10,000 of qualified education loans. These assets solve many divorcing couples’ present and future educa-tion obligations by payments of up to $10,000 annually for secondary schools.

Tax Extenders and Medicare

The 2019 Tax Extenders bill retained the medical expense deduction threshold at 7.5% of adjusted gross income. For older couples who are divorcing with lower adjusted gross income, this deduction has a significant impact. Further, practitioners should be identifying larger HSA assets as marital assets. This is an asset for future medical expenses including paying disability premiums. We are experiencing many couples using the HSA as a “piggy bank” for future medical costs and paying current medical costs out of pocket.

Health insurance is a constant issue when couples di-vorce and one or both must now provide for themselves. As the cost of health care is discussed, the impact of the surcharge needs to be considered as well. We, as practi-tioners, must warn clients about the escalating Medicare participation required as income increases. There is a surcharge on Part B (doctors) and Part D (private plan) premiums. The surcharge is based on modified adjusted gross income two years prior to the year that the premi-ums are paid. For example, 2017 income is used to gauge the 2019 premium surcharge. The surcharge for Part B in

2019, at the lowest level, is $135.50 a month and, at its highest level, increases to $460.50 a month for income over $500,000. Roth retirement income and HSA with-drawals do not add to modified adjusted gross income. An appeal process is available to reduce the income upon which the surcharge is based; a divorce is a life changing event that qualifies for appeal. Such appeal should be undertaken to avoid unnecessary premium payments.

TCJA and year-end 2019 legislation brought many changes that we have taken time to understand and con-sider in income available for support and asset divisions. Taxes are a certainty and, as we know, paid each year. An oversight or failure to take advantage of the above can under or overstate assets for equitable distribution and lead to unnecessary future tax burdens.

Mitchell E. Benson, CPA, MT, CFF is a partner at Savran Benson LLP in Bala Cynwyd, Pennsylvania and has over 30 years of accounting experience. He specializes in matrimonial litigation support, real estate tax planning and compliance, and tax and consulting for closely held businesses. He works closely with attorneys in divorce litigation and settlement and participates in all financial aspects of dispute resolution. mbenson@savranbenson.com 215-664-6400 Adam M. Poutasse, CPA is a partner at Savran Benson LLP in Bala Cynwyd, PA and has over 15 years of experience. He specializes in tax planning and compliance for individuals, families, and businesses. apoutasse@savranbenson.com215-664-6400 Aliah C. Molczan is an pssociate at Savran Benson LLP in Bala Cynwyd, PA. She specializes in matrimonial litigation support.amolczan@savranbenson.com 215-664-6400

During 2020, all required CLE credits can be earned by distance learning education, accord-ing to a Supreme Court of Pennsylvania order issued on April 15. The PBA advocated with the Pa. Continuing Legal Education Board for this modification of the CLE requirement. Read the order at http://www.pacourts.us/assets/opinions/Supreme/out/Order%20Entered%20-%2010439644899571598.pdf?cb=1

Supreme Court Issues Order Temporarily Modifying CLE Requirement

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202010

Articles

By Meredith BrennanRepublished with permission from The Philadelphia Lawyer

It happens to family lawyers more and more frequent-ly: you’ve just cleaned out your email inbox, only to be bombarded with dozens of screen shots of text messages between a client and her ex. You are then tasked with determining (a) whether any of the text exchanges are relevant for purposes of the upcoming custody litigation; (b) if so, how to print them out in some legible format; and (c) how to authenticate the text messages for eviden-tiary purposes. Surprisingly, the most challenging aspect of this exercise may be printing the texts.

According to the Pew Research Center, texting is the number one method of communication for Americans under the age of 50. And according to Statistics Brain, the number of monthly text messages sent has increased by more than 7,700% over the past decade. Given the ubiquity of text messages, they can often prove to be a treasure trove of evidence in custody litigation. So, are they admissible, and how do you authenticate them?

As a preliminary matter, pursuant to Pa.R.E. 901, au-thentication is required prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Pa.R.E. 901(a). Testimony of a witness with personal knowledge can be sufficient. Pa.R.E. 901(b)(1). If no such testimony is available, the evidence may be authenticated by other means, including circumstantial evidence. Pa.R.E. 901(b)(4).

One of the challenges for Pennsylvania family law attorneys is that there are no reported family law cases addressing the authentication standards for electronic communications or social media, but we can look for guidance in several appellate criminal cases. One Penn-sylvania appellate court has noted that there can often be issues with proving authorship of an email, text mes-sage, or social media post, since “anybody with the right password can gain access to another’s email account and send a message ostensibly from that person.” In re F.P., a Minor, 878 A.2d 91, 95 (Pa. Super. 2005). Similarly, Facebook, Instagram, and other social media platforms can be accessed from any computer or smart phone with the appropriate user ID and password. Commonwealth v. Mangel, 181 A.3d 1154, 1162 (Pa. Super. 2018). That

court noted that social media evidence is even more dif-ficult to authenticate because social media accounts can be falsified, or an actual account can be hacked into by a third party. Id. With that said, Pennsylvania courts have rejected the position that electronic communications or social media evidence are “inherently unreliable,” noting that the same issues can happen with written docu-ments―a signature can be forged, or letterhead can be stolen. In re F.P., 878 A.2d at 95.

Thus, notwithstanding the unique aspects of electronic communications and social media evidence, Pennsylva-nia courts have held that these communications can be properly authenticated within the existing framework of Pa.R.E. 901 and appellate case law. In the case of In re F.P., 878 A.2d 91, the court addressed the authentication of instant messages where the defendant was accused of threatening the victim via instant messages. The com-monwealth introduced instant messages from a screen name “Icp4Life30.” The contents of the instant messages referred to ongoing events involving the defendant, the victim, and school officials, and in one message, the de-fendant referred to himself by name. The court conclud-ed that the circumstantial evidence sufficiently identified the defendant as “Icp4Life30” and authenticated the instant messages.

In Commonwealth v. Koch, 39 A.2d 996 (Pa. Super. 2011), aff’d by an equally divided court, 106 A.3d 705 (Pa. 2014), the Pennsylvania Supreme Court tackled the authentication of text messages. In that case, the commonwealth attempted to introduce text messages taken from a cell phone during the execution of a search warrant at the defendant’s home. The defendant ad-

The Smoking Text: How to Authenticate Text Messages and Social Media in Child Custody Litigation

continued on page 11

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202011

ArticlesThe Smoking Text

mitted to owning one of the phones found, and there were 13 text messages with content involving the sale of drugs. There was no testimony from any person who had sent or received the text messages, nor any context that indicated the identity of the sender of the text messages. The court noted: “[T]he difficulty that frequently arises in email and text messages cases is establishing author-ship. Often more than one person uses an email address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an email bears a particular email address is inadequate to authenticate the identity of the author …” Id. The court concluded that the admission of the text messages without further circumstantial evidence was an abuse of discretion.

Most recently, in the case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the court addressed the issue of what proof is necessary to authenticate social media evidence―which was an issue of first impression in Pennsylvania. The court reviewed the In re F.P. and Koch decisions, holding that the same issues of proving authorship in electronic communications apply to social media evidence. Thus, authentication of social media evidence is to be evaluated on a case-by-case basis to de-termine whether an adequate foundation has been laid, and the proponent must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication, such as testimony from the person who sent or received the communication, or “con-textual clues” in the communication tending to reveal the identity of the sender. Id. at 1162.

There has been at least one non-precedential decision in a child custody case tangentially addressing the issue of authenticating social media evidence. In K.S. v. J.L., 2018 WL 4519846, the trial court found the father in contempt for violating a “no-contact” order entered in the parties’ custody matter. The Superior Court reversed the decision. The mother testified that the father had commented on a post she had made on her Facebook page. The court noted that the mother had no documentary evidence revealing the nature of the comment. The court first cited Mangel for the standard to authenticate a Facebook post, and then noted that the mother’s “evidence” had consist-ed of attaching a photograph of a screen shot allegedly from her Facebook profile indicating that the father made a comment to her Facebook post, but the photograph did not show the alleged comment, nor was it clear on whose

profile the post or comment had appeared. Both parties testified that they were not Facebook

“friends” and had “blocked” each other for years, al-though the mother testified that she occasionally un-blocked the father so that she could view his posts. The mother did not explain how the father could have commented on a post of hers if they are not Facebook friends. The father acknowledged that he commented on a post by a mutual friend that included photographs of the parties’ children, but he stated that he is unable to see posts made by the mother herself. The trial court found that the father’s explanation as to how and why the comment allegedly appeared on the mother’s Face-book page was not credible.

On appeal, the Superior Court held that, based upon its review of the record, at most, the evidence showed that the father commented on a picture of the children that appeared on a third party’s Facebook page that had, perhaps, originally been posted by the mother. Accord-ingly, in the absence of further documentary proof that the father commented on a post made by the mother, including the nature of the comment, this behavior did not constitute “contact” in violation of the “no-contact” order. Thus, it is clear that simply introducing a text message purportedly from a party with just the evidence of the phone number or name in the text messages chain is insufficient, as is offering a party’s purported Facebook page or posts without testimony of a witness with per-sonal knowledge or circumstantial evidence.

Assuming you can accomplish the “hard” part of au-thenticating electronic communications or social media, there is also the practical issue of how to physically intro-duce this evidence. While some family judges are willing to look at a party’s phone and scroll through text mes-sages, that is certainly not always the case, and the party is unable to offer such evidence into the record, which could be problematic in the event of an appeal. As noted above, most parties have the capability to take screen shots of their text exchanges, but this entails cutting and pasting the screen shots into a document and printing the pages, and the screen shots more often than not include duplicative “bubbles” so that the text chains are difficult to follow. However, there are apps, such as iExplorer, that transfer text messages (as well as music, photos and other files) from any iPhone, iPod, or iPad to any Mac or PC computer. A party can then print an entire text history with another person, and the texts will appear in

continued on page 12

continued from page 10

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202012

Articles

The Smoking Text

Meredith Brennan is a partner at the law firm of Momjian Anderer, LLC. She received her B.A. from Georgetown University and her J.D. from New York University School of Law. She is a past chair and current member of the ex-ecutive committee of the Philadelphia Bar Association’s Family Law Section, a former council member of the PBA’s Family Law Section, and a member of the Nicholas A. Cipriani Inn of Court. Brennan has published numerous articles on a variety of family law topics in The Legal Intelligencer, Penn-sylvania Law Weekly, The Matrimonial Strategist, and others. Brennan has lectured on custody, support, and divorce issues for the Pennsylvania Bar Institute and local and state bar associations, as well as at the Pennsylvania Conference of State Trial Judges. She is licensed to practice in Pennsylvania and New Jersey.mbrennan@momjiananderer.com(267)546-3704

continued from page 11

chronological order with both parties’ names (or phone numbers) and the dates/times of the messages appearing over the text bubbles in a much more readable format.

In short, offering electronic communications or social media evidence requires an attorney to consider both practical and evidentiary issues. First, the evidence must be presented in a format that a judge can actually read and easily follow ― e.g., which party is sending what messages without having to flip back and forth between pages of text bubbles that are often not in chronological order because of the limitations of screen shots. Second, notwithstanding the increasingly sophisticated ways to hack into and/or alter electronic communications and social media, this evidence can be authenticated by the same type of circumstantial evidence as any other document, and attorneys should not be daunted by the growing digital world of evidence.

By David S. Rasner

Matrimony, Acrimony.

Patrimony, Sanctimony.

Equalizing, Modernizing.

Compromising, Codifying.

Property Rights and Dissolution.

Alimony and Equitable Distribution.

Revolution.

Evolution.

Culture changes,

So do we.

Make amends, correct the flaws,

The next generation of Family Law.

40 Years: A Brief History

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202013

Articles

By Rachel Smith

Knowing how to value and calculate the division of military pensions can be a minefield fraught with frus-tration and confusion. As with the valuation and division of any retirement plan, but even more so with a military pension, it is essential to keep records and perform the proper research to understand how a military pension is calculated, as well as the rights and options of each spouse (both the non-servicemember spouse and the servicemember spouse). This article explains the differ-ence in the evaluation, calculation, and division of a mil-itary pension when the servicemember spouse is active duty versus a reservist or in the National Guard.

Dividing a traditional military pension in a divorce is a specific process. Calculating how much the non-service-member spouse receives from the military pension can be a time consuming and meticulous process. Last, but not least of all, be aware that there are particular re-quirements in order for the non-servicemember spouse to receive direct payments from Defense Finance and Accounting Services (DFAS), which administers finances and payments to military servicemembers and veterans.

I. Let’s begin with the basics of the military The United States Armed Forces has four branches of

service: Army, Navy, Air Force and Marines. It is important to be aware that the term to call a servicemember de-pends on the branch of service in which the servicemem-ber served. Specifically, a servicemember in the Army is a soldier; the Navy is a sailor; the Air Force is an airman; and the Marines is a marine. The term “servicemember” is a broad term that applies to all branches of service.

Then there is the status of the servicemember in the Uniformed Service — active-duty, reservist or National Guard. The National Guard is the reserve component of the United States Armed Forces from each state and the territories of Guam, the Virgin Islands, Puerto Rico and the District of Columbia. As a result, there are 54 sepa-rate organizations of the National Guard. The National Guard can be deployed or mobilized for federal and domestic missions. An active-duty servicemember serves “full time” in the military, which means this is their day-to-day job (ie: they report for duty every day). Reservists and National Guard are “part-time” servicemembers, which means they are required to appear for their mili-tary duties at certain times throughout the year.

Knowing the servicemember’s rank can also be import-ant, because it is used to calculate how much the service-member spouse earned by the time s/he retired from the military.

The additional distinctions, terms and acronyms are never-ending and will not be addressed in this article. However, it is important to at least be aware of the most basic terms and distinctions. If the reader or practitioner uses the wrong term, it is possible to insult the service-member. With only about 1% of the American population serving in the uniformed services, few people are familiar with the terms, practices, customs and rules governing those in uniform. As a civilian, but more importantly, as someone who is in a profession that prides itself on being detail oriented, it is extremely important for the practi-tioner to at least know the basic fundamental details.

II. What is a military pension? The traditional military pension under the legacy

system is one where a servicemember receives a lifetime pension after having served in the military for a required number of years, usually 20 active duty years. This is a defined benefit plan, versus a defined contribution plan such as a 401(K). In other words, a servicemember is not eligible for a pension unless s/he serves the re-quired time. Translation: there is no marital portion for the non-servicemember spouse to be entitled to and the non-servicemember spouse is not eligible to receive anything from the marital portion of the pension unless the servicemember spouse serves the necessary time of at least 20 active duty years.

Needless to say, a servicemember who is a reservist/guard is also eligible for a pension. Many servicemembers serve their entire military career as a reservist or in the

continued on page 14

Military Pension Division Discrepancy: Points vs Time — Part I

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202014

Articles

National Guard. If a reservist/guard serves their entire military career as a reservist/guard, s/he is eligible for a pension based on a calculation of points, not time/active duty years.

Servicemembers may also save for retirement in a Thrift Savings Plan (TSP) on their own initiative. Feder-al employees, including military servicemembers, are eligible to save money in TSPs, which are retirement plans similar to 401(K) plans. Since TSPs are not the same as the military pension and can be considered a marital asset, it will not be addressed in this article.

In today’s society where people are increasingly less likely to stay with one company or remain in one profes-sion during their entire lifetime, it is just as common to find servicemembers who have a combination of active duty years in the military with reservist/guard time. In those specific situations, calculating whether a service-member is eligible to receive a pension is based on a combination of calculation of time (ie: active duty years) AND points.

III. Jurisdictional RequirementsA. Servicemembers Civil Relief Act (SCRA)Because the military is a federal entity, its servicemem-

bers are stationed across the country and throughout the world in places where they are not legal residents. The most significant portion of the SCRA that intersects with the Uniformed Services Former Spouses’ Protection Act is where there is a default judgment against the service-member.1 The SCRA dictates that an active-duty ser-vicemember spouse must make an appearance in a legal proceeding in order for the court order to be enforceable against the servicemember. Generally, this is done by the servicemember hiring an attorney to represent him/her.

B. Uniformed Services Former Spouses’ Protection Act (USFSPA)

Congress enacted the Uniformed Services Former Spouses’ Protection Act in 1982 to allow state courts the ability to treat military pensions as community or marital property, so that they could be divided through the state divorce process. Given the mobile nature which the mili-tary operates, the USFSPA requires that certain provisions must be met under the Servicemembers Civil Relief Act (SCRA) in order for state courts to enter a court order dividing a military pension.

First, a servicemember can consent to jurisdiction of the state court. Service of court documents is not con-

clusive. The servicemember must take affirmative steps showing consent to jurisdiction, such as filing court pa-pers as a pro se litigant or hiring an attorney to represent him/her in the legal proceeding.2

Second, a servicemember can be a resident of the state at the time of the divorce proceeding, other than because of the servicemember’s military assignment. For exam-ple, a servicemember can be stationed in New Jersey, but lives in Maryland to be near family. As a result, Maryland can exercise jurisdiction over the servicemember.3

Third, jurisdiction is based on the servicemember’s do-micile (ie: his/her state of legal residence). For example, a servicemember is stationed at Ft. Bragg, North Carolina, but maintains legal residence/domicile in the state of Pennsylvania. Pennsylvania is the servicemember’s domi-cile and where the divorce case may proceed.4

C. Whether the military pension is a marital asset: The “10/10” rule

In order for the non-servicemember spouse to receive direct payments of the military pension from DFAS, the couple must meet the “10/10” rule. The non-service-member spouse and the servicemember must have been married for at least 10 years, during which time the ser-vicemember served at least 10 years of service creditable toward the pension. In other words, 10 years of marriage must overlap with 10 years of creditable service in the military. DFAS cannot make any payments of the military pension to the former spouse unless the “10/10” rule is met.5

A judge can make a court order as to the division of a military pension. The parties can come to an agreement as to how a military pension will be divided. Regard-less of any court order and/or agreement between the parties as to how the military pension is divided, DFAS will not enforce any order unless the “10/10” rule is met. In situations where DFAS cannot make payments to the non-servicemember spouse, the servicemember may need to make direct payments to the non-servicemember spouse (now former spouse). If the parties do not meet the “10/10” rule, another method for the servicemember spouse to pay the former spouse is through a spousal support order in the divorce decree.

A statement that the “10/10” requirement has been met must be in the court order for DFAS to process the di-rect payment to the former spouse. For example, “Parties were married for 10 years while the member performed

continued from page 13

Military Pension Division Discrepancy Time vs. Points

continued on page 15

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202015

Articles

20 years of military service creditable for retirement purposes.”

Editor’s Note: Part II of this article will be featured in our Summer Issue.

150 U.S.C.App. §521.2Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408

(c)(4).3Id.4Id.510 U.S.C. §1408(b)(1)(D); Baka v. United States, 74 Fed. Cl. 692, 298

(2006). See also DoDFMR, Vol. 7B, §290604.B.

A Silicon Valley native, Rachel is licensed in four jurisdictions- California, North Carolina, Pennsylvania, and the Supreme Court of the United States. She is a graduate from Santa Clara University School of Law and obtained her B.A. in communications, international business, and Asian studies. Smith works with QDRO Solutions, LLC, in providing valuations and the drafting of qualified domestic relations orders (QDROs) in family law cases. As a military spouse attorney, she also educates legal professionals on the realm of military family law, the military retirement system, benefits, and how they intersect with the civilian judicial system. She currently lives in Pittsburgh.rachel@myqdrosolutions.com 301-327-1396.

Military Pension Division Discrepancy Time vs. Points

continued from page 14

Get up to $300* a quarter when you hire a sign language and/or CART interpreter to communicate with clients or potential clients who are deaf or hard of hearing.

The Pennsylvania Bar Association has established the Sign Language Interpreter/CART Fund to reimburse attorneys who pay for sign language and/or CART interpreters.

While the fund is open to all members of the Pennsylvania Bar Association, it is intended primarily to benefit clients of small firms, solo practitioners, public interest firms and pro bono volunteers.

To access the fund, a PBA member shall pay the interpreter’s bill andemail, mail or fax a copy of the bill to the Pennsylvania Bar Association with a signed copy of the certification to:

Louann BellPennsylvania Bar Association Disability Services Committeelouann.bell@pabar.org P.O. Box 186, Harrisburg, PA 17018-0186 Fax: 717-238-7182

*The fund will reimburse a member for up to $150 for sign language interpreter or CART fees per interpreter appointment, up to a maximum of two appointments per quarter until the fund is exhausted.

PEN

NSY

LVANIA BAR ASSOCIATIO

N

Your Other Partner

Pennsylvania Bar Association Disability Services Committee

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202016

Judicial Corner

By The Honorable Alan M. Rubenstein

Michael Mclaughlin v. Nora MclaughlinC.P. Bucks County, Family Division, No. A06-2017-61390-DRubenstein, J., Jan. 3, 2020

Opinion

“The Big Green Egg”No, it’s not a children’s story by Dr. Seuss [Theodore

Seuss Geisel, 1904-1991]. See, for example, “Green Eggs And Ham:” “I don’t like

Green Eggs and Ham said Sam-I-Am.”This court referred to Dr. Seuss at the very outset of

this hearing as Petitioner/Husband, Michael McLaughlin, began to testify:

The court: So, we know, and we don’t confuse this with Dr. Seuss, why don’t you explain what a Big Green Egg is.

Husband: Sure, (a) Big Green Egg is a ceramic grill slow-cooker. N.T. 11/14/19, at p.p. 6.

So, it’s not a children’s story by Dr. Seuss.“The Big Green Egg” is a cooking grill. It is the sole fo-

cus of Wife’s appeal from our order of Nov. 14, 2019.At the hearing of November 14, 2019, and in this

opinion, we have referred to Dr. Seuss. Dr. Seuss’ mag-ical ability to create memorable children’s stories in a first-person narrative leads us to imagine how he would have addressed the facts presented here.

So, in invoking the memory of Dr. Seuss, and with poetic and prosaic license, we will engage in a purely hypothetical first-person narrative of Wife’s Seussian-like explanation of these events:

I can’t claim The Big Green Egg,It belongs to you (Property Settlement Agreement)

But I sold it on the Internet, ($450.00)Now what will you do?

You hired a lawyer,To foil my attempt,You didn’t think it was funny

And after a hearing (11/14/19)I was found in contempt

And I was ordered to pay you some money ($1600.00)

It’s now gone, The Big Green Egg,I knew you chose to keep it

But even though I sold The EggI wanted to keep it a secret!

I wanted you to beg for The Big Green Eggand bring you to your knees

But instead the Court of Common PleasSaid I must also pay your counsel fees.

($2031.00)

This whole ordeal seems so unrealThe court said I started this mess.

But I filed an appealAnd now the same court Has some issues to address.

The judge’s decision against me Is one that I just can’t abide.So now I’ll ask the Superior Court To reverse it and set it aside.

I’m now locked-in;I’ll never budge;I’ll resist your every petition

I’ll seek to overturn that judge;I’ll never engage in contrition.

The Big Green Egg

continued on page 17

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202017

Judicial CornerThe Big Green Egg

Throughout this case I set the course,And now I’ll test your mettle.But even though I lost below This case I’ll never settle.

You claim I acted out of spiteAnd I’ll dread my lawyer’s bill.

It’s hard to believe that I’m in a fightOver a silly damn barbeque grill.

Michael McLaughlin (Husband) and Nora McLaughlin (Wife) were married on April 6, 2001 in Cedar Rapids, Iowa. Thereafter, they lived in Bucks County until they separated.

On July 3, 2017, Husband filed a Complaint in Divorce. A Decree in Divorce was entered on Aug.30, 2019.

Prior to the entry of that decree, Husband and Wife entered into a specific and comprehensive settlement of their joint marital estate. This settlement was transcribed in an Equitable Distribution Agreement entered before the Bucks County Family Master on June 17, 2019 (See N.T. 6/17/19).

At the outset, the Family Master confirmed that the Agreement was “a full and final settlement . . .” N.T. 6/17/19, p.p. 3.

As a part of that final settlement, Wife, inter alia, agreed to refinance the mortgage and note upon the marital residence, and Husband thereafter will sign a deed conveying all of his interest in the marital home to Wife. Id. at p.p. 4-5.

Husband and Wife also agreed that Wife shall be awarded $60,000.00 from Husband’s 401(k), and that a Qualified Domestic Relations Order shall be prepared, at Husband’s expense, to effectuate the transfer. Id. at p.p. 6-7.

The parties also agreed that Wife would be awarded $290,677 from husband’s employee stock ownership plan. Id. at p.p. 7-9.

In the continuing spirit of cooperation and an amica-ble settlement, the parties also agreed to “divide” their “various bank accounts” and maintain their ownership in certain vehicles. They also agreed to accept financial responsibility for their own credit card debts and indem-nify and hold each other harmless for those obligations. Id. at p.p. 10-11.

Husband also agreed to continue paying alimony to Wife ($750.00 per week) until Oct. 15, 2019. Id. at p.p. 12. Beginning Oct. 16, 2019 Husband agreed to pay to Wife $607.00 per week through Dec. 31, 2021. Id. at p.p. 12-13.

Husband also agreed inter alia to maintain Wife upon his health insurance plan, and to pay Wife 17 percent of his employment “performance bonuses” through 2021. Id. at p.p. 12-13.

One would assume that Husband and Wife, who were both represented by counsel, had resolved every conceiv-able financial issue between them in their sizable marital estate.

At page 11-12 of the Settlement Agreement of June 17, 2019 notes the following verbatim:

The parties acknowledge that they acquired personal property during their marriage. There are some few remaining items in the marital residence which hus-band claims as his personal property. Those items are as follows:

There’s a Big Green Egg, also husband’s childhood train set, also that husband may have some personal memorabilia, as well as some home-brewing equipment or sports or beer collectable memorabilia. The parties agree to cooperate to arrange a mutually convenient time for husband to go to the marital residence for the purpose of removing those items, and the parties agree to do so within the next 45 days.

But for the items husband will be removing, any other personal property in the possession of wife shall be wife’s sole and separate property with no further claim from husband. And any personal property in the possession of husband’s sole and separate property with no further claim from Wife.

N.T. 6/17/19, p.p. 11, 7-25; p.p. 12, 1-7.

On August 15, 2019 Husband filed a Petition for Enforcement and Contempt of the Marital Settlement Agreement, alleging that Wife did not transfer his Big Green Egg.

A hearing upon Husband’s Petition was held before this Court on November 14, 2019. At this hearing Husband recited the terms of the Property Settlement Agreement with specific reference to “The Big Green Egg” which he described as a “ceramic grill slow-cooker.” N.T. 11/14/19, p.p. 6.

continued on page 18

continued from page 16

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202018

Judicial CornerThe Big Green Egg

When asked by his counsel: “And where is the ‘Big Green Egg’ now?,” Husband testified that “ . . . it’s been sold.” Id. at p.p. 7, 10-12.

A friend from work happened to come across an ad for it on sale — being sold on the internet — and sent me a screenshot after contacting (Wife) about it.

Id. at p.p. 17, 14-17.The screenshot was introduced into evidence as Exhibit

H-2 which showed the advertisement, and a photograph of The Big Green Egg with a listed price of $450.00. N.T. 11/14/19, at p.p. 10.

Husband testified that his “childhood train set,” his “home-brewing equipment,” and his “sports and beer memorabilia and collectibles” were all returned and were not in issue. Id. at p.p. 8-9.

Husband testified that, to his knowledge, The Big Green Egg had been sold after the 45 days referred to in the Settlement Agreement.

COUNSEL: To your knowledge, on what day was the Big Green Egg sold or listed for sale?

HUSBAND: Somewhere between 45 and 48, only be-cause I found out about it on the 48th day and it was sold.

Id. at p.p. 17, 7-13.Husband also confirmed this during cross-examination

by Wife’s counsel. See N.T. 11/14/19, p.p. 17, 22-25.After Husband rested his case, Wife chose not to testify

and did not present any witnesses or evidence. Wife’s counsel argued that it was Husband’s responsi-

bility to contact Wife to make arrangements to retrieve The Big Green Egg. Id. at p.p. 23. Wife further argued that the purpose of the 45 day “deadline” was to insure that Wife didn’t have to “hang on to it (The Big Green Egg) for the rest of her life.” Id.

Counsel for Wife admitted that Wife took no steps to contact Husband to retrieve the Big Green Egg. Id. at p.p. 24. Wife’s argument is that since Husband allowed the 45 days to pass without contacting Wife about The Big Green Egg, she was able to unilaterally dispose of it. Id.

Husband’s counsel argued that Wife acted in bad faith. He referred to the fact that The Big Green Egg was spe-cifically listed in the Marital Settlement Agreement and therefore Wife knew it was important to him. Id. at p.p. 26. Further, Husband’s counsel asserted that there was no provision in the Agreement that transferred ownership to Wife if Husband did not retrieve his property within 45 days. Id. at p.p. 26-27. Husband’s counsel also pointed out that The Big Green Egg was offered for well under

market price which allowed it to be sold quickly on the Internet. Id. at p.p. 26.

Husband testified that The Big Green Egg was listed for sale for $450.00 by Wife. Id. at p.p. 11. Husband present-ed Exhibit H-3 which showed the cost of a new Big Green Egg, the same model that Husband owned, as approxi-mately $1,600.00, which included all of the accessories (side tables and a pizza stone) that Husband had added to the grill. Id. at p.p. 13-14. This amount ($1600.00) was not disputed by Wife’s counsel.

At the conclusion of the hearing of Nov. 14, 2019, this court found Wife in contempt of the Property Settle-ment Agreement. Id. at p.p. 30-31. Wife was ordered to pay Husband $1600.00, the undisputed value of the Big Green Egg, within 72 hours. Id. Wife was further ordered to also pay Husband’s reasonable and necessary attor-ney’s fees of $2,031.00 within 72 hours. Id.

On Nov. 18, 2019, Wife filed a Notice of Appeal to The Superior Court of Pennsylvania from this court’s order. Wife then filed a supersedeas with the Bucks County Prothonotary on Nov. 19, 2019 and deposited the monies owed by Wife to Husband, pending the outcome of this appeal.

On appeal, Wife complains that this court erred in finding her in willful contempt of the Marital Settlement Agreement because, among other things, Husband never contacted Wife to retrieve The Big Green Egg and there was no evidence that Wife failed to cooperate with Hus-band to retrieve it.

Standard of Review

When a party appeals a court's order holding them in contempt of court, our review is very narrow. We are limited to determining whether the trial court committed a clear abuse of discretion. Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa. Super. 1995).

AnalysisIn Pennsylvania, a settlement agreement between a

husband and wife is governed by the law of contracts unless the agreement itself provides otherwise. Hence, when the language of such an agreement is clear and unambiguous, the focus of the interpretation must be upon the terms as manifestly expressed. Jackson v. Culp, 583 A.2d 1236, 1238 (Pa. Super. 1990).

It is well-established that the law of contracts governs marital settlement agreements. It is also well-established

continued on page 19

continued from page 17

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202019

Judicial CornerThe Big Green Egg

that under the law of contracts, in interpreting an agree-ment, the court must ascertain the intent of the parties. Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. Super. 2004).

In this matter, there was no ambiguous language in the agreement or as to the intent of the parties. The parties agreed to settle their entire marital estate during a pro-ceeding with the Bucks County Family Master on June 17, 2019.

The parties agreed that Wife would retain the mari-tal residence, continue to pay the mortgage, and would refinance the mortgage and note or pay it off completely by Oct. 15, 2019. N.T. 6/17/19, p.p. 4. Once that was completed, Husband would sign the deed for the marital residence over to Wife. Id.

The parties also came to an agreement regarding their assets. Husband and Wife agreed that Wife would receive $60,000 from Husband’s 401(k). Id. at p.p. 6. But for the $60,000, Wife waived any claim to Husband’s 401(k). Id.

The parties agreed that Wife would receive $290,677 from Husband’s Employee Stock Ownership Plan. Id. at p.p. 8-9. They agreed that this transfer would be accom-plished via a Qualified Domestic Relations Order. Id. at p.p. 9.

The parties settled their bank accounts and agreed that any bank accounts in Husband’s name would remain as Husband’s sole property. Id. at p.p. 10. Wife would also retain the bank accounts in her name. Id.

The parties settled issues surrounding vehicles pur-chased during the marriage as well as any credit card debt. Each party would assume any debt in their own name and hold the other party harmless. Id.

The parties also agreed upon the disposal of person-al property. There were remaining items in the marital home which Husband claimed. Id. at p.p. 11. Husband specifically named The Big Green Egg, a childhood train set, personal memorabilia, home-brewing equipment (or) sports or beer collectable memorabilia. Id.

Specifically, to above items, the parties: “agree to cooperate to arrange a mutually convenient time for husband to go to the marital residence for the purpose of removing those items, and the parties agree to do so within the next 45 days.” Id. at p.p. 11, 18-23.

This portion of the parties’ agreement is at issue in this appeal. During the hearing held on Nov. 14, 2019, Hus-band testified that he had not been notified that The Big Green Egg had been sold. N.T. 11/14/19, p.p. 7. Husband testified he and Wife had only one communication since June 17, 2019, the date of the Marital Settlement Agree-

ment. Id. at p.p. 7-8. Husband testified that he and Wife exchanged one text message during that time, and it was in regard to an “insurance change.” Id. at p.p. 8.

Once Husband became aware that The Big Green Egg had been sold, he contacted Wife. Id. at p.p. 9. When questioned by Husband, Wife responded, “You asked 45 days, which I’m assuming it’s up.” Id. at p.p. 10, 24-25; p.p. 11, 1. Husband testified that The Big Green Egg was sold for $450. Id. at p.p. 11.

During his testimony, Husband testified that his lack of communication with Wife regarding The Big Green Egg occurred because “time just slipped” his mind. Id. at p.p. 16-21-25. Husband testified that he did not “forget about the belongings.” Id. Husband also testified that Wife never contacted him in order to set up a mutually agreed upon time to pick up The Big Green Egg during the 45-day period. Id. at p.p. 18.

As noted, Wife chose not to testify during the hearing of November 14, 2019. Wife’s argument is essentially that since Husband was the receiving party, that it was his responsibility to contact Wife to retrieve his property. Id. at p.p. 24.

Based upon the language in the Property Settlement Agreement before the Family Master, the intent of the parties, as to personal property, was clear and unmistak-able. Husband and Wife both agreed to keep their respec-tive personal property. The Property Settlement Agree-ment states that Husband claimed certain personal items. It further states that Wife also has personal property she would like to retain. N.T. 6/17/19, p.p. 11-12.

The only time a trial court will look beyond the four corners of a contract is if there is an ambiguity. A contract is ambiguous if it is “reasonably susceptible of different constructions and capable of being understood in more than one sense.” Windows v. Erie Insurance Exchange, 161 A.3d 953, 957 (2017).

While, the agreement is silent as to what shall occur after the 45-day period, it does not state that either party can unilaterally dispose of the other’s personal property once 45 days has passed.

The clear intent of the parties was to keep certain personal property after the divorce. Wife did not have the authority to sell The Big Green Egg simply because nei-ther party arranged for Husband to retrieve it in a 45-day period. As this court stated:

I’m looking at Page 11, and I’m quoting: ‘The parties

continued on page 20

continued from page 199

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202020

Judicial CornerThe Big Green Egg

acknowledge that they acquired personal property during their marriage.’ Simple.

Next, there are some few remaining items in the marital residence which Husband claims as his per-sonal property. These items are as follows: There’s a Big Green Egg. Also, Husband’s childhood train set and some other personal memorabilia, including home-brewing equipment and other collectibles.

What is the obligation of Husband and Wife? Well, they agreed to cooperate. That’s one thing they did not do. They are to cooperate in arranging - - and that’s the key word - - a mutually convenient time for Husband to go to the marital home to remove those items. The parties agreed to do so. That is, agreed to arrange a mutually convenient time within the next 45 days.

What was the intent of the parties? Wife keeps what she has. Husband has a few items to be returned. It should be very simple. (Wife’s counsel) would have me believe that that 45 days is inviolate; that once the clock strikes midnight on the 45th day there was no longer a need to arrange any mutually convenient time.

It reminds me of an Oscar-winning movie, Cool Hand Luke, with Paul Newman and George Kennedy. There’s a famous scene when the warden of the chain gang

stands up late at night and says, ‘What we have here is a failure to communicate.’ So, what we’ve got here is a failure to communicate.

Look, I can go on and on about this. This is foolish-ness. (Wife), I think your animosity toward (Husband) overwhelms your common sense here. This is going to be a very expensive lesson for you, but to me it’s as clear as could be.

It doesn’t say time is of the essence . . . It’s just a damn cooker.

N.T. 11/14/19, p.p. 28-30.

It was the duty of Husband and Wife to “arrange a mutually convenient time” for Husband to retrieve The Big Green Egg. Because of their failure to communicate, neither party followed through upon this obligation.

Wife did not have the authority to sell The Big Green Egg unilaterally to the detriment of Husband.

It would be an injustice if we permitted Wife to engage in this conduct without consequence.

Therefore, we believe that Wife’s appeal should be denied and dismissed.

continued from page 19

Judge Alan M. Rubenstein has served as a judge in the Court of Common Pleas of Bucks County since 2000. He previously served as the District Attor-ney of Bucks County from 1986 through 2000.

PBI now offering CLE discounts

In an effort to help you manage your costs during coronavirus-related office closures, PBI is offering all on-demand CLE programs and webinars, including resources designed to help you and your firm deal with the COVID-19 outbreak, at a 35% discount, through Aug. 31.

Go to http://www.pbi.org/on-demand. Use code ONLINE35 at checkout.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202021

Estimating Military Retired Pay

Federal/Military Corner

By Mark E. Sullivan

IntroductionFrom time to time, our office (in Raleigh, N.C.) gets

inquiries by phone or e-mail regarding how to estimate the military retired pay of a member of the uniformed services. This term means the “armed forces,” that is, the Army, Navy, Air Force, Marine Corps, and Coast Guard, and also the commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospher-ic Administration (NOAA). The rules for calculating the retired pay of the active-duty “member” one of these service components, technically called “Regular Retire-ment” pay, are set out in 10 U.S.C. § 1407 and 1409 for the armed services, and at equivalent sections of the U.S. Code for PHS and NOAA officers. Below is a simplified explanation of the rules for calculation.

What’s the Formula?The basic formula for determining one’s retired pay is

Retired Pay Base times Retired Pay Multiplier, or RPB X RPM. This can be illustrated as:

Retired Base Pay x Retired Pay MultiplierTo be more specific let’s fill in some details to these

general terms, especially focusing on the 2.5% part of the Retired Pay Multiplier shown below1:

High-3 Pay x Years of Service x 2.5% High-3 Pay

“High-3 Pay” is the average of the highest three years (not necessarily continuous) of base pay for a member, expressed on a monthly basis.

• How to obtain the documents and do the calcu-lations is set out in the Silent Partner infoletter, “Military Pension Division and the Frozen Benefit Rule: Nuts ‘n’ Bolts,” found at www.nclamp.gov > Publications.

• The quick way to estimate this is to take the current pay of the member, obtained from his or her Leave and Earnings Statement, or “LES” (or other equiva-lent pay statement, such as the “PaySlip” for Coast Guard member), and multiply it times 98%. Thus if Major Jane Doe receives $8,000 per month as her base pay, the estimate for her High-3 Pay would be $8,000 X .98 or $7,840.

The Defense Finance and Accounting Service (DFAS) is the pay center for the Army, Navy, Air Force and Marine Corps. The Department of Defense regulation governing

the Privacy Program, DoD 5400.11-R, states that the De-fense Department will release the following information regarding a servicemember: date of rank, gross salary, length of military service and Basic Pay Entry Date. Para. C4.2.2.5.2.1, DoD 5400.11-R (May 14, 2007). Other items may also be disclosed.

Years of Service“Years of service” can be determined by asking Major

Jane Doe, if she is your client. Otherwise the figure can be determined by review of her LES (look at the “Pay Date” or “Pay Entry Base Date” as well as the DIEMS, or Date Initially Entered Military Service). The LES may be provided voluntarily by Jane or her attorney, or it may be obtained otherwise through discovery. This informa-tion is also available through a request pursuant to DoD 5400.11-R, as noted above. If you know Jane’s pay grade2 and years of service, you can determine her present base pay by using the pay tables at the DFAS website, https://www.dfas.mil > Military Members.

Example of the CalculationLet’s follow up on the calculations for Major Jane Doe,

with the data set out above. Her “estimate” for the High-3 is $7,840, and her Retired Pay Multiplier (assuming that she has just finished serving 20 years) is 20 X 2.5%, or 50%. The combination of these gives $3,920/mo. This is the projected retired pay for Major Doe if she were to re-tire at the 20-year mark with the above as her High-3 pay.

1The usual percentage is 2.5%, but it’s 2.0% when a) the service-member elected to receive a mid-career cash bonus known as CSB/Redux, or when b) the member is in the Blended Retirement System.

2Pay grade - not rank - is what’s needed for the pay tables. Rank can be confusing: a master sergeant in the Air Force is pay grade E-7, but it’s E-8 in the Army; a Navy captain is pay grade O-6, but a Marine Corps captain is pay grade O-3!

Mark E. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 2nd Ed. 2011) and many internet resources on military family law issues. A Fellow of the American Academy of Matri-monial Lawyers, Sullivan has been a Board-Certified Specialist in Family Law in North Carolina since 1989. He works with attorneys and judges nationwide as a consultant on military divorce issues, and particularly in drafting military pension division orders. mark.sullivan@ncfamilylaw.com.919-832-8507

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202022

By Joel Bernbaum

It is time for your annual “Tech Spring Cleaning.” Just like your house, garden or closet, your tech needs to be pruned, fluffed and minimalized. The first thing to do is find a home for your cables, wires, head or ear phones, chargers, cases, etc. Get organizers or trays that you can find in the houseware section of Bed Bath & Beyond for example. They come in different sizes and materials. Plastic works well and if you have the space, stackable is useful. Lids aren’t necessary. You want to see what you need and not open and close containers. Ziplock bags are great and come in different sizes.

Next, sort your clutter. Chargers; USB, power and other cables; head phones go together. I sort by use and size. Another trick is to have a “travel” kit. Put multiple char-gers, cables, etc. aside for when you travel and save time and avoid forgetting something. Don’t forget mini surge protectors. Most hotel rooms don’t have enough free outlets.

Go to your files on your desktop and make sure you have them organized by use. I have always used the file cabinet model. Basic categories; personal, work, bar associations, etc. along with sub categories; forms, cases and statutes within work for example. Your client files should each be given a sub folder within the main work folder category. Next, make sure you sort by date and select “date last opened.” This lets you delete or archive files that are not currently needed. Undecided? Back up to an offline device, either a separate external hard drive or Dropbox for example. If you are tech challenged, get an uninstaller application. Most are cheap and work well to clean up extraneous files after deletion of applications. Do the same for your applications that you no long use. Update the ones you keep. Go to your browser and per-form the same tasks for your saved bookmarks, etc.

Next up, your photos on your computer and offline storage. Remember, photo files take up a lot of space and need to be pruned annually. Again, if you want to keep some of them, back them up to an external hard drive or cloud storage. Most important, get them off your desktop or laptop devices.

Now it’s time to tackle your phone. Remember, your phone has much less storage than your desktop or portable. Space is a premium and deleting unwanted or unnecessary applications, etc. will speed up your phone and add years to use. If you have an iPhone, go to “Set-tings”, “General” and then “iPhone settings.” Your phone

will generate a list of your apps and how much storage they use by category. Prune away as needed. You will be surprised by what is on your phone and how much space they take up. This is easy and no leaf bags! Don’t worry, if you delete and later need the app, chances are you can reinstall or download from the app store for free.

Here is a fun tip, get a pair of wireless (Bluetooth) ear phones or ear plugs. They recharge, don’t need batteries and have no wires. Best yet, they are reasonably priced and great for long walks or workouts. Most of you won’t hear the difference compared to the pricey high models. A good place to shop is Amazon.

Remember to update everything including operating systems. Keeping things up to date is especially important for phones.

Finally, take some alcohol or safe cleaner and wipe all your devices and you are ready to go.

You will see the improvement to your devices immedi-ately and there is no trash bag.

Spring Cleaning for Your Tech Gear

Technology Corner

Joel Bernbaum is the founder of the Bala Cynwyd family law firm of Bernbaum Family Law Group. He is a fellow of the American Academy of Matrimonial Lawyers, serving as president of the Pa. Chapter in 2007. He is a member of the American, Pennsylvania, Illinois and Montgomery bar associations with active participation in their respective family law sec-tions and/or committees. He was formerly co-chair of the PBA’s Technolo-gy Taskforce. He is a former director and chair of the Family Law Section of the Montgomery Bar Association and served two terms on Council of the PBA Family Law Section. joel@bernbaumfamilylaw.com610-667-7902.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202023

Legislative Update

By Yvonne Llewellyn Hursh

This article summarizes several domestic relations bills introduced in the 2019-2020 legislative session of the Pennsylvania General Assembly. Status of each bill is as of March 13, 2020. The full text of the bills, as well as their legislative history, may be found at: http://www.legis.state.pa.us/cfdocs/legis/home/bills/.

Previously Reviewed Legislation – Under Consideration

The following bills have received some form of con-sideration in the General Assembly since the previous report:

CustodyHouse Bill 437, Printer’s No. 3194 received second

consideration in the House and was re-committed to the House Appropriations Committee on February 4, 2020. The bill amends 23 Pa.C.S. § 5323 to authorize a temporary modification of the physical custody schedule of a child as a potential consequence for contempt of a custody order.

Termination of Parental RightsHouse Bill 1984, Printer’s No. 2789 received second

consideration in the House and was re-committed to the House Appropriations Committee on February 4, 2020. The bill amends 23 Pa.C.S. § 2512 and adds a new § 2514 that allows the mother of a child conceived as the result of rape or incest to petition for the involuntary termi-nation of the parental rights of the perpetrator without making any averments to the future custody or adoption of a child so conceived.

Newly Introduced LegislationCustodyHouse Bill 2363, Printer’s No. 3462, was introduced

and referred to the House Judiciary Committee on March 13, 2020. The bill amends 23 Pa.C.S. § 6108 to clarify that the existing standard in the Protection From Abuse Act — that the defendant either has abused the minor children or poses a risk of abuse — is the standard which applies to the temporary modification of a custody order. A best interest of the child analysis is not required in this situation and instead the focus is on the protection of the child.

Senate Bill 781, Printer’s No. 1049, was introduced and referred to the Senate Judiciary Committee on June 21, 2019 (this bill was overlooked in previous updates). The bill would amend 23 Pa.C.S. § 5328. This bill increases the factors which courts must consider in awarding visitation to grandparents and great grandparents following the death of a spouse. These additional factors consider the burden, inconvenience, or limitation placed on the surviv-ing parent and the ability of the children to participate in school, extracurricular activities, and religious observanc-es in complying with the terms of the visitation.

Domestic ViolenceHouse Bill 1955, Printer’s No. 3414, was introduced

and referred to the House Judiciary Committee on March 4, 2020. The bill amends 23 Pa.C.S. § 6106(a.3) to clarify that magisterial district judges serving as hearing officers granting emergency protection from abuse orders have the authority to order law enforcement to accompany a plaintiff while retrieving personal belongings or serving the order upon the defendant, if the plaintiff has reason to believe that the plaintiff’s safety is at risk.

House Bill 2047, Printer’s No. 2874, was introduced and referred to the House Judiciary Committee on Novem-ber 14, 2019. The bill amends 42 Pa.C.S. § 1726.3 and adds Subchapter B.1 to Chapter 95 (42 Pa.C.S. §§ 9551-9553) to provide for mitigating factors in sentencing and post-conviction for survivors of domestic violence who victimization affected their participation in the offense.

House Bill 2228, Printer’s No. 3169, was introduced and

Domestic Relations Bills in 2019-20 Legislative Session

continued on page 24

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202024

referred to the House Committee on Labor and Industry. The bill amends 23 Pa.C.S. §§ 6102 and 6106 to require employers to provide unpaid leave to plaintiffs in protec-tion from abuse proceedings and persons testifying on their behalf to attend PFA hearings.

House Bill 2284, Printer’s No. 3422, was introduced and referred to the House Judiciary Committee on March 4, 2020. The bill would allow a local Court of Common Pleas to adopt a rule to extend the time period for emergency orders. Under the bill, instead of expiring at the end of the next business day, emergency relief would expire upon the commencement of a hearing in the Court of Common Pleas within 10 business days. A petitioner may still request a temporary order from the Common Pleas Court at any time prior to the final hearing. This bill is similar to Senate Bill 1031, below.

Senate Bill 1031, Printer’s No. 1521, was introduced and referred to the Senate Judiciary Committee on Febru-ary 6, 2020. The bill would allow a local Court of Com-mon Pleas to adopt a rule to extend the time period for emergency orders. Under the bill, instead of expiring at the end of the next business day, emergency relief would expire upon the commencement of a hearing in the Court of Common Pleas within 10 business days. A petitioner may still request a temporary order from the Common Pleas Court at any time prior to the final hearing. This bill is similar to House Bill 2284, above.

MarriageHouse Bill 2314, Printer’s No. 3362, was introduced and

referred to the House Judiciary Committee on February 24, 2020. The bill amends 23 Pa.C.S. §1311 to limit the amount a county may charge for a copy of a marriage li-cense provided to a person listed on the license to $8.50. No fee may be charged for a copy of a marriage license sought for the purpose of obtaining State-issued identifi-cation.

Other IssuesHouse Bill 2306, Printer’s No. 3354, was introduced and

referred to the House Judiciary Committee on February 24, 2020. The bill adds a new section 23 Pa.C.S. § 5106 to provide for contracting and consent by homeless minors who are at least 16 years of age.

Previously Reviewed Legislation - Unchanged

AdoptionHouse Bill 236, Printer’s No. 206. The bill adds 23

Pa.C.S. § 2506 to provide for counties to provide adop-tion-related counseling services to parents of children who are being relinquished or who have been relin-quished for adoption.

House Bill 237, Printer’s No. 207. The bill repeals provi-sions relating to adoption intermediary reports, amends 23 Pa.C.S. §§2701 and 2702 to add to the contents of an adoption petition, and adds new § 2726 to list permissi-ble reimbursement of expenses to birth mothers.

House Bill 647, Printer’s No. 660. The bill amends 23 Pa.C.S. §§ 2531, 2711 and 2721 to shorten the time pe-riod in which consents to adoption may be revoked and restricts future challenges to the consent.

House Bill 654, Printer’s No. 667. The bill amends § 774 of the Human Services Code to allow parents who adopt a child to appeal to the Pennsylvania Department of Human Services the amount of the adoption subsidy provided by local authorities.

Alimony House Bill 520, Printer’s No. 514. The bill amends 23

Pa.C.S. § 3701 to ban a grant of alimony to a spouse who has been convicted of a personal injury crime against the other spouse.

House Bill 587, Printer’s No. 594. The bill amends 23 Pa.C.S. § 3702 to prohibit courts from basing APL awards solely on presumptive guidelines, and require that any APL award be based upon a finding that the petitioning spouse’s income is insufficient to provide for his or her needs and to simultaneously maintain the litigation with-out unfair disadvantage.

Child ProtectionHouse Bill 1749, Printer’s No. 2340. This bill creates the

Office of the Child Advocate/Child Protection Ombuds-man.

Legislative Update

continued from page 23

Domestic Relations Bills

continued on page 25

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202025

Legislative UpdateDomestic Relations Bills

CustodyHouse Bill 693, Printer’s No. 719. The bill amends 23

Pa.C.S. § 5324 to expand standing to file for physical cus-tody to grandparents who already have some form of cus-tody of a minor child who is related to the child in ques-tion; or the grandparents have previously had custody of a related minor child who is now over the age of 18.

House Bill 1397, Printer’s No. 1719. The bill amends 23 Pa.C.S. § 5327 and related sections to provide that in determining custody, there shall be a presumption that equal parenting time is in the best interests of the child.

Senate Bill 868, Printer’s No. 1229. The bill requires the court to consider child abuse findings in custody deci-sions (to be known as Kayden’s Law). The bill amends 23 Pa.C.S. §§ 5322 (definition of abuse), 5323 (safety con-ditions), 5328 (factors and conditional order of custody), 5334 (training for guardian ad litem), 5335 (appointment of counsel), and 5339 (counsel and other fees). Addition-ally, 42 Pa.C.S. §§ 1908 (training in domestic violence and child abuse for judges and court personnel) and 5983 (appointment of child advocate).

Domestic ViolenceHouse Bill 489, Printer’s No. 477. The bill adds 23

Pa.C.S. § 6123 to provide for waivers of fees for duplicate State documents for victims of domestic violence.

House Bill 588, Printer’s No. 595. The bill amends 23 Pa.C.S. § 6108 to allow a judge to enter an order for a defendant to wear an electronic monitoring device as part of a protection from abuse (PFA) order, and is to be known as Alina’s Law.

House Bill 824, Printer’s No. 925. The bill amends 23 Pa.C.S. § 6108 to allow electronic monitoring of defen-dants under a PFA.

House Bill 1043, Printer’s No. 1184. The bill amends 23 Pa.C.S. § 6114 to add that a person in contempt of a protection from abuse order may be ordered to undergo a drug and alcohol evaluation or a mental health evalua-tion or both.

House Bill 1789, Printer’s No. 2379. The bill permits victims of domestic violence to receive copies of the

police reports relating to the victim’s abuse by amending 42 Pa.C.S. § 8726.

Senate Bill 196, Printer’s No. 162. The bill amends 23 Pa.C.S. § 6108 to allow a judge to enter an order for a de-fendant to wear an electronic monitoring device as part of a protection from abuse (PFA) order.

Senate Bill 364, Printer’s No. 351. The bill adds 18 Pa.C.S. § 5535.1 to make it a third degree felony for a defendant under a protection from abuse order to kill or injure a dog or cat owned or residing with the plaintiff in the PFA order.

Senate Bill 376, Printers No. 360. The bill adds 42 Pa.C.S. § 9720.9 to direct the Pa. Commission on Sentenc-ing to develop sentencing enhancement for 20 enumerat-ed crimes that are committed by a defendant while under a PFA order or consent agreement in a domestic violence case.

Senate Bill 511, Printer’s No. 542. The bill adds a new Chapter 96 to Title 42 to create a registry of domestic violence predators. DVP’s are defined as persons who have committed an offense and because of a mental abnormality or personality disorder they are likely to engage in predatory domestic violence offenses. Preda-tory is defined as “directed at an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” The law would be known as “Robin’s Law.”

Senate Bill 913, Printer’s No. 1317. The bill amends the Fiscal Code by adding a new Sub-article J (§1760-A.1 et seq.) that establishes the Survivor-Centered, Accessible, Fair and Empowering (SAFE) Trust Fund to provide sup-port for domestic violence programs, including housing programs. After initial funding of $1 million from the gen-eral budget, the trust would be funded by a $10 fee on the filing of mortgages or deeds, and voluntary donations via licensure and registration check-offs on PennDOT documents.

MarriageHouse Bill 73, Printer’s No. 77. The bill amends 23

Pa.C.S. § 1306 to allow a person who cannot travel be-cause they are hospitalized to apply for a marriage license

continued from page 24

continued on page 26

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202026

continued from page 25

Domestic Relations Bills

Legislative Update

via affidavit, rather than with a personal appearance at a courthouse.

House Bill 360, Printer’s No. 331. The bill amends 23 Pa.C.S § 1304 to prohibit the issuance of a marriage license if either of the applicants is under the age of 18.

House Bill 651, Printer’s No. 664. The bill eliminates the waiting period to marry following application for a marriage license by repealing 23 Pa.C.S. § 1303.

House Bill 1197, Printer’s No. 1409. The bill amends 23 Pa.C.S. § 1503 revising the qualifications of retired judges and mayors in good standing to conduct marriage cere-monies.

House Bill 1966, Printer’s No. 2731. The bill would amend 23 Pa.C.S. § 1503 to add any individual of a reli-gious order, body or institution authorized by the rules and customs of that order, body or institution to perform a marriage ceremony to the list of persons authorized to solemnize a marriage. This would include persons ordained online. A marriage license would still be re-quired.

Senate Bill 81, Printer’s No. 55. The bill amends 23 Pa.C.S § 1304 to prohibit the issuance of a marriage license if either of the applicants is under the age of 18.

Parentage/PaternityHouse Bill 243, Printer’s No. 213. This bill adopts the

Uniform Parentage Act which modernizes parentage laws to extend protections to children with same-sex and de-facto parents and to children born through surrogacy and assisted-reproductive technology. It also updates Pennsylvania law that bans awarding custody of a child conceived as a result of a sexual assault to the parent that perpetrated the assault. A new Part IX-A (Chapters 91 – 99A) are added to Title 23 of the Pa. Consolidated Statutes.

Paternity/SupportSenate Bill 505, Printer’s No. 530. This bill requires

custodial and noncustodial/putative parents to cooperate in determining paternity and establishing, modifying or enforcing child support orders in order to be eligible for the Supplemental Nutrition Assistance Program (SNAP) by adding Section 217 to the Human Services Code (previ-ously known as the Public Welfare Code of 1967).

SupportHouse Bill 226, Printer’s No. 196. The bill amends 23

Pa.C.S. § 4355 to eliminate the denial or suspension of an individual’s driver’s license/operating privileges as a consequence of failing to comply with support or custody orders.

House Bill 833, Printer’s No. 1492. The bill amends the Human Services Code to require all applicants or recipi-ents of medical assistance to cooperate with the depart-ment in obtaining medical support for their children from the noncustodial parent in all cases in which support is sought for a child. Exceptions are provided in document-ed domestic violence cases.

House Bill 1280, Printer’s No. 1548. The bill expands the definition of insurer in 23 Pa.C.S. § 4326 (mandatory inclusion of child medical support in support orders) to include medical support plans that qualify as insurance plans under the Affordable Care Act regardless of their regulation by the Insurance Department.

Other IssuesHouse Bill 1432, Printer’s No. 1770, was introduced

and referred to the House Judiciary Committee on May 8, 2019. The bill amends 23 Pa.C.S. § 3102, 3103, 3105 and 3502 to address custody of companion animals.

Yvonne Llewellyn Hursh is counsel with the Joint State Government Com-mission, the primary and central non-partisan, bicameral research and policy development agency for the General Assembly of Pennsylvania in Harrisburg, and the Legislative Editor of the Pennsylvania Family Lawyer. yhursh@legis.state.pa.us

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202027

ADR Corner

Parent Coordination Marks One-Year AnniversaryBy Carolyn Moran Zack

The one-year anniversary of the re-establishment of Parenting Coordination was on March 1, 2020. An anniversary is a good time to celebrate what has been accomplished in the past year and to make plans for the future. In the past year, eight counties have adopted local rules approving Parenting Coordination: Allegheny, Bucks, Chester, Cumberland, Dauphin, Montgomery, Philadel-phia and York. This number represents less than 12% of the 67 counties in our commonwealth. Many of these counties have published the list of their approved Parent-ing Coordinators (PCs) online and developed forms and operating procedures to facilitate the process. Parenting Coordination is catching on, but so far it is concentrated in isolated areas. Perhaps this is due to a lack of familiar-ity or comfort level with the process. PBI co-sponsored a CLE on March 2, 2020, entitled, “Parenting Coordination 2020: Seeing Things More Clearly.” This program was si-mulcast through the state and will be offered online later this year. The PBI program is intended to raise awareness of the advantages of this alternative dispute resolution process for highly contested custody cases, as well as to offer parenting coordinators the opportunity to share their stories and learn from each other how to tackle tricky custody implementation issues. This program will give PCs five of their 10 CLE credits required to maintain their qualification under the Rule.

Over the past year, I have served as a PC in four cases in Chester, Montgomery and Philadelphia Counties. I have learned that most parties who have been assigned PCs welcome a neutral who can help them avoid spending at-torneys’ fees on minor issues. I typically meet each party separately for an hour intake session before conducting any PC work, and this gives each side an opportunity to bare their souls, as well as for me to do a domestic vio-lence screening. I always take care to do a conflict check before the meetings take place, but the individual ses-sions give greater detail about the parties’ backgrounds and helps me to learn about any affiliations or relation-ships that could create a personal or professional conflict. The meetings with the parties also allow them to identify the sources of historical contention that may give rise to issues in the future. I always review with each party the parameters of the PC appointment order and reinforce the limited nature of the PC role. I tell them that I will err on the safe side and, if there is a question about whether an issue can be addressed in the PC context, I will reach

out to the assigning judge before taking any action. I also review with them the fee structure and billing system. Having this initial meeting in person helps not only to put a name to the face, but also to allow for a more personal interaction and comfort level for both sides going for-ward.

As for the PC process, I am still developing my proto-cols, but I find it helpful to lay ground rules, such as: all requests to the PC must be by email and copied to the other side; the opposing party will have 48 hours to re-spond to the request. I will typically then send an email to both sides with my suggested resolution of the issue (as the first part of parenting coordination is mediation to try to resolve the issue by agreement). In the absence of an agreement, I will ask each party to tell me in writing why the proposed resolution does or does not work, and then I will prepare and file my written recommendation to the court. I will summarize the issue, each side’s position and then the reasons for my recommendation. I try to keep these recommendations succinct but give enough detail so that the court, which must always review the recom-mendation, does not have to guess at the rationale for the outcome.

There are a few important aspects of parenting coor-dination that distinguish it from private arbitration: one is that the scope of the parenting coordinator’s authority is very limited. The PC only has the ability to address implementation issues under an existing custody order; the PC cannot make recommendations that will change legal or physical custody, allow for a relocation of a party, determine financial issues other than the PC’s fees, or make “major decisions” affecting the health, education or religion of the children. In addition, every PC recom-

continued on page 28

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202028

Rules Committee New LeadershipBy Carolyn Moran Zack

The Rules Committee has new leadership: Anthony M. Hoover and Daniel J. Bell-Jacobs will be co-chairing this committee going forward. There have been no new proposed rules issued since December 2019, but the sec-tion’s Rules Committee is currently considering whether to recommend any changes to the support guidelines for consideration by the Domestic Relations Procedural Rules Committee in conjunction with the Supreme Court’s quadrennial review under 23 Pa.C.S.A. Section 4322(a). If you have any questions about these changes or any other proposed rules, please contact Anthony Hoover (anthony@levinhooverlaw.com) or Daniel Bell-Jacobs (dbell-jacobs@hkhlaw.net.)

Carolyn Moran Zack is a partner with the Philadelphia firm of Momjian Anderer LLC. She is trained as an arbitrator by the American Academy of Matrimonial Lawyers, June 2018. She is also a certified mediator. She began practicing family law in 1987 under the mentorship of Albert Mom-jian, Esquire, first at the firm of Abrahams and Lowenstein and later at Schnader Harrison Segal & Lewis, LLP. In addition, Zack gained experience serving as the Chief Law Clerk for the Honorable Berle M. Schiller when he was a judge of the Superior Court of Pennsylvania in 1998 and 1999. She is a member of the Doris Jonas Freed Inn of Court, the PBA Family Law Section Rules Committee, and past chair of the Family Law Section of the Philadelphia Bar Association. czack@momjiananderer.com 267.546.3712

ADR Corner

mendation is reviewed by the trial court according to an established review process. There is no default approval, even in the absence of an objection by a party. Another important aspect of parenting coordination is fees: most counties place a limit on the fees that can be charged by PCs and all counties have a process by which indigent or low-income families can participate in the program at no fee or a reduced fee. While parenting coordination is reserved for those cases of “repeated or intractable” con-flict, there are many such cases cutting across socio-eco-nomic barriers. Thus, the availability of experienced and dedicated PCs can be a welcome resource for these individuals and may also help to alleviate the backlog of cases on the court’s docket raising relatively minor custo-dy issues.

The PC Rule is gaining momentum and statistics from counties where it has been adopted are encouraging. For example, Administrative Family Court Judge Katherine B. L. Platt reports that Chester County has a robust PC program. Seventeen PCs are on the approved roster. The fees they charge range from $125 to $300. Two of the county’s five Family Court judges have appointed a PC in fourteen cases, mostly at the request of counsel. The court lets the attorneys/litigants pick from the roster, which has resulted in a somewhat lopsided appointment base; two attorneys have had four or more appointments, with the balance sprinkled among other available PCs.

The Chester County local rule requires a PC to take one pro bono appointment for every two paying ones. As a result, there are presently four pro bono appointments available; however, no pro bono appointments have been requested. Chester County has one psychologist on the roster, but so far only lawyers have been selected and ap-pointed. As one of the appointing judges, Judge Platt has received five or six recommendations which she has fully approved (no partials, no rejections) and she is aware of only one objection having been filed, following which she held a hearing and ratified the PC’s recommendation. Ad-ministrative Family Court Judge Carolyn Carluccio reports that since Montgomery County’s local rule passed at the end of November 2019, fourteen attorneys and four mental health providers have been approved as PCs. Fees range from a low of $140 (a mental health professional) to a high of $440 (an attorney). Almost all say they can be flexible. Three PCs were appointed by two different judges. Judge Carluccio expects that number to slowly increase with time, since the program is in its early stage, and she is not aware of any objections being filed.

Please share with me your observations or experienc-es with the PC program in your county so that we can include these comments in future columns. You can email me at czack@momjiananderer.com.

Parent Coordination Marks One-Year Anniversary

continued from page 27

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202029

Case Notes

In the Interest of: A.M., A Minor, 223 A.3d 691 (Pa. Super. 2019)

By Eileen G. Murphy

Paternity by Estoppel is a legal fiction. This presump-tion is only raised in cases where the child does not share a biological relationship with the biological mother’s hus-band, and the purpose is to preserve the family from the outside interloper who supplied his biological material to create the child. If the husband IS the biological father, then this presumption is not necessary. The presumption only applies where biology and the marital relationship are inconsistent, and until now, it has only been applied to married opposite-sex couples.

That changed with In the Interest of: A.M., A Minor, 223 A.3d 691. On Nov. 19, 2019, the Superior Court explicitly extended the presumption of paternity to the same-sex spouse of the child’s biological mother where the child was conceived and born during the parties’ marriage and where the family remained intact. The court also con-firmed standing to that same-sex spouse on the basis of paternity in dependency proceedings.

Facts and Procedural History

P.M.-T. and J.M. (hereafter Mother) were legally mar-ried on Feb. 20, 2015. (P.M.-T. identifies as a man and therefore is referred to as a man throughout the opinion) Mother gave birth to A.M., the child, on July 21, 2017. P.M.-T. was listed as the father on the birth certificate. Immediately after the birth, the Allegheny County Office of Children, Youth and Families (OCYF) obtained an emer-gency protective order for the child and she was placed into care. At the adjudicatory hearing on Aug. 22, 2017, Mother informed the court that P.M.-T. was her spouse and was listed on the child’s birth certificate as the father. The court continued the hearing and directed the par-ties to address P.M.-T.’s parental status and therefore his standing in the dependency matter.

The parties had a subsequent hearing on Oct. 11, 2017, where P.M.-T. raised the issue of the presumption of paternity and his legal standing as the child’s father. The court deferred the issue but adjudicated the child depen-dent as to Mother.

At a subsequent dispositional hearing on Nov. 14, 2017,

P.M.-T. did not appear, but Mother did. At that hearing, Mother stated that she had not seen P.M.-T. in a week and that she intended to separate from him as she felt the relationship was hindering her progress toward reuni-fication. As P.M.-T. was absent, the court did not address his standing at the hearing, and following the hearing, ordered the child to remain in placement.

A permanency review hearing was initially scheduled for Feb. 21, 2018 and then continued to April 9, 2018. P.M.-T. attended the Feb. 21 hearing, but it was not until the April 9, 2018, hearing that parties presented legal ar-gument on whether the presumption of paternity applied to the non-biological spouse whose same-sex spouse gave birth to a child during their marriage. The trial court recognized that this was an issue of first impression. While it did not issue a ruling, the court found that Moth-er and P.M.-T. were married, intended to remain married, and intended to establish a household together.

On June 9, 2018 the trial court subsequently issued its order denying P.M.-T.’s request for standing. The court held that the presumption of paternity was not applicable because the parties’ marriage was not intact. This appeal followed.

On appeal, P.M.-T. argued that the trial court erred in not granting P.M.-T. standing in the dependency matter because he is the legal parent of the child under the pre-sumption of paternity.1

Superior Court Holding and Analysis

The court began with an overview of the fundamental right of parents to participate in dependency proceedings as “the interest of parents in the care, custody and con-trol of their children is perhaps the oldest fundamental liberty interest recognized by the Unites States Supreme Court.” (interior quotes omitted, citing to Troxel v. Gran-ville, 530 U.S. 32, 65, (2000)). The court further traced the history of the presumption of paternity as “one of the strongest presumptions known to law” and explained that, as the purpose of the presumption is the preser-vation of marriages, it will only be applied where “that policy is advanced by its application,” citing to K.E.M. v P.C.S. 38 A.3d 798, 806-07 (Pa. 2012).

The court then reviewed the testimony and evidence. It determined that the parties were married when the child

Equal Opportunity Fiction — The Extension of Paternity by Estoppel to Same-Sex Marriages

continued on page 30

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202030

Case Notes

was conceived as well as when she was born. Accord-ing to both Mother and P.M.-T., P.M.-T. was listed as the father on the birth certificate. P.M.-T. informed the trial court that he wanted to be recognized as the father and wanted to participate in the proceedings. There was no third-party challenge to paternity.

While the trial court acknowledged all of the above, it found that the presumption did not apply because the marriage was not intact since there were issues of do-mestic violence and the marriage “fluctuated.” It relied on Mother’s testimony at the dispositional hearing that she had not seen P.M.-T. in a week and she essentially viewed the relationship as finished.

The Superior Court was not convinced. While finding the marriage was “riddled with challenges and difficul-ties,” the court opined that this did not mean that the marriage was not intact for the purpose of the presump-tion of paternity. The court cited to Strauser v. Stahr, where that court held that “the presumption of paternity serves its purpose by allowing husband and wife, despite past mistakes, to strengthen and protect their family.” Strauser v. Stahr, 726 A.2d 1052, 1056 (Pa. 1999).

The Superior Court found that the trial court should have applied a presumption of paternity and therefore granted P.M.-T. standing in the dependency proceeding. More broadly the court clarifies that this presumption applies in any case where the family is intact, whether or not the marriage is between partners of the same sex or partners of opposite sex.

Author’s Comments

This appeal is unique in that all the parties (Mother, OCYF, the trial court and the Guardian Ad Litem) agreed that the presumption of paternity should apply to same-sex couples in an intact marriage, just as it applies to opposite-sex couples. However, the GAL agreed with the

trial court that the marriage was not ‘intact’ and there-fore the presumption was not applicable.

While this is an issue of first impression, the holding is not as broad as it may seem at first glance as it only applies to intact couples – in other words, if the parties were to break up, then presumption of paternity would not apply to P.M.-T., and P.M.-T.’s standing would need to come from another source (presumably his actions in caring for the child as a parent during the intact relation-ship).

The court also makes clear in its footnote that, as P.M.-T. uses male pronouns to refer to himself, the Superi-or court has done the same. I appreciated this deliberate decision to affirm P.M.-T’s identity, rather than his sex at birth. Likewise, the court in a later footnote, discussed the decision to use the ‘presumption of paternity’ rather than the ‘presumption of parentage’ as an effort to remain consistent with prior case law, not to limit the presumption to only male, or male-identifying parties.

1P.M.-T. also argued that the trial court erred in allowing the child’s Guardian Ad Litem to participate in the proceedings to establish P.M.-T. as the child’s parent. The court found this argument to be without merit, as the child is entitled to counsel at every stage of the proceedings.

Equal Opportunity Fiction — The Extension of Paternity by Estoppel to Same-Sex Marriagescontinued from page 29

Eileen Murphy is an attorney with Berner Klaw & Watson LLP, where she practices family law in Pennsylvania and New Jersey. She previously worked at the Law Offices of Michael E. Fingerman and clerked for the Superior Court of New Jersey Family Division in Atlantic County. Murphy represents families across the economic spectrum in divorce, support and custody matters. She is also active with the Pennsylvania Bar Association Family Law Section and the Philadelphia Bar Association Family Law Sec-tion, where she is currently serving as chair elect. When not practicing law, she is active with the Curtis Institute of Music. She lives in Philadelphia with her husband and two young sons. emurphy@bkwfamily.com215-790-8800.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202031

Case Notes

No Abuse of Discretion for an Award of Equitable Distribution and Alimony

continued on page 32

Llaurado v. Garcia-Zapata, 223 A.3d 247 (Pa. Super. 2019)

By Shawnee Strasko

Brief Summary of the Facts

In this Delaware County divorce matter, Husband and Wife were married for 23 ½ years and ultimately separat-ed in March 2013. The parties are the parents of three children and both parties are currently in their early 50s. During the marriage, Wife was the dependent spouse and Husband worked outside the home earning over $100,000 each year. The parties litigated the divorce for several years before receiving a recommendation from an equitable distribution master on April 11, 2017. Both parties requested a hearing de novo which was held on April 4, 2018. The hearing was conducted on a “case stated” basis, i.e., the matter was presented through the submission of documentary exhibits and statements from counsel, but no testimony by the parties. The trial court issued an Equitable Distribution Order with findings of fact and conclusions of law on June 26, 2018. The trial court determined there was a marital estate of $168,337. The estate was primarily comprised of four retirement in-vestment accounts valued by the trial court at $132,137, and a boat valued at $22,000. It is important to note that while the matter was pending and prior to the equitable distribution master’s recommendation, Husband made two relevant transactions. First, in 2014, Husband sold the boat for $4,500 to a car dealership in Florida. Second, in 2015, Husband unilaterally liquidated the retirement investment accounts keeping the funds for his own use and incurring a tax liability of over $30,000. In the Equi-table Distribution Order, Wife was awarded 60% of the estate, alimony in the amount of $1,897 per month for four years, and counsel fees in the amount of $5,000. Husband was awarded 40% of the estate. Following the issuance of a divorce decree on Dec. 19, 2018, Husband filed a timely appeal.

Issues on Appeal

Husband presented nine distinct issues for consider-ation by the Superior Court. As stated by Husband, they are as follows:

1. Whether the trial court erred by utilizing the gross amount of the retirement and/or investment accounts for the purposes of equitable distribution without consider-ing certain tax ramifications thereby compelling Husband to remain solely responsible for all assessed taxes.

2. Whether the trial court erred by utilizing the gross amount of the retirement and/or investment accounts for the purposes of equitable distribution when Husband while under the specter of unmerited and unwarranted domestic relations orders and eventual imprisonment for purported contempt of said Orders was forced to liqui-date certain retirement and/or investment accounts to meet support obligations.

3. Whether the trial court erred by utilizing the gross amount of the retirement and/or investment accounts for purposes of equitable distribution when Husband liquidated same as Husband had no income and no other funds with which to pay certain support obligations as ev-idenced by Husband’s unemployment from Aug. 7, 2013 through Jan. 11, 2016 and his imprisonment in the G.W. Hill Correctional Facility for contempt of said support obli-gations from May 4, 2015 until Nov. 5, 2015.

4. Whether the trial court erred by failing to consider the federal, state and local tax ramifications associated with the accounts Husband was forced to liquidate to meet his support obligations.

5. Whether the trial court erred by determining that the value of a 2008 Boston Whaler boat totaled $22,000 and failing to credit Husband for the $4,500 Wife received when the boat was sold in 2014.

6. Whether the trial court erred by determining Wife was entitled to an award of alimony in the amount of $1,897 per month for four years despite finding that as of the date of the hearing and equitable distribution award, Husband was unemployed.

7. Whether the trial court erred by determining that alimony was appropriate in light of the alimony factors outlined in 23 Pa.C.S.A. §3701 and in particular, Hus-band’s employment status as of the date of the hearing and equitable distribution award.

8. Whether the trial court erred by awarding Wife $5,000 in counsel fees when the invoice for said fees failed to segregate attorney time and expenses among representation for custody, child support, or equitable

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202032

Case Notes

continued from page 31

No Abuse of Discretion

distribution. 9. Whether the trial court erred by failing to address

the parties’ student loan obligations and failing to de-termine the parties were solely responsible for any and all student loan debt incurred by either party prior to or during the marriage and the party securing said debt would indemnify the other for any collection efforts and/or seizures, past, present and future associated with the failure to timely pay his or her student loans.

Superior Court Holding/Analysis

After noting that the standard of review in an equi-table distribution matter is one of abuse of discretion, the Superior Court affirmed the trial court in all aspects. At the outset, the Superior Court addressed Husband’s first four issues which all related to the valuation and tax consequences of the liquidated retirement investment accounts. The Superior Court quoted the Balicki case, noting that “the statute requires us to only consider the tax ramifications…along with numerous other listed fac-tors, but the Divorce Code does not make a deduction for them mandatory.” Balicki v. Balicki, 4 A.3d 654, 664. The Superior Court found that the trial court appropriately considered the tax ramifications in the equitable distri-bution order. The Superior Court supported its conclu-sions by finding that Husband unilaterally liquidated the accounts without the consent of Wife or permission from the court thereby causing Wife to lose the value of the potential market growth of the assets.

The Superior Court then held that to the extent Hus-band was attempting to challenge the child support and contempt determinations by the trial court, Husband was estopped from doing so as those matters were fully and fairly litigated. A final judgment on the merits was previ-ously made as well as the determinations essential to the judgment.

The trial court did not abuse its discretion by calcu-lating the values of the retirement investment accounts based upon the gross amounts of the accounts at the time of liquidation. Husband made no good faith efforts to find employment, did not produce any evidence in the divorce action to show that he used the proceeds of the liquidated accounts to meet his support obligations, and asked the Superior Court to consider trial court orders that were not referred to during the equitable distribu-tion hearing.

With respect to the value of the Boston Whaler boat, the Superior Court held that the trial court did not abuse its discretion in assigning $22,000 as its value when Wife was the only party to submit any information about a possible value for the asset and Husband unilaterally sold the boat to a car dealership in Florida in violation of a Court Order for a “grossly undervalued price.” Further, the trial court did clearly identify in the calculation of the assets that Wife received the $4,500 for the boat as well as $1,250 in attorney’s fees, putting $5,750 in her column.

With respect to Husband’s sixth and seventh issues, both relating to alimony, the Superior Court affirmed the lower court’s determination and found that an award of alimony was appropriate under the circumstances. The Superior Court supported this holding by indicating that the trial court appropriately applied the factors set forth in Section 3701(b) of the Divorce Code, appropriately assigned an earning capacity of $140,000/year to Hus-band and noted that Husband failed to object to any of Wife’s exhibits at the time of the hearing. Additionally, the trial court did not abuse its discretion because it did not make a factual determination as to whether Husband had committed marital misconduct but rather noted in the opinion that Wife believed that marital misconduct had occurred.

Husband’s eighth issue contested the award of $5,000 of counsel fees to Wife. The Superior Court affirmed the lower court’s award in light of Husband’s misconduct during the proceedings which led to substantially in-creased litigation, Husband’s ability to pay the fees based on his earning capacity, and Wife’s demonstrated need for the fees.

Husband’s final issue contested the trial court’s failure to assign each party’s student loan debt to that respec-tive party. The Superior Court affirmed the trial court and specifically stated that there was no evidence present-ed to the trial court to make the type of determination Husband was seeking and therefore the trial court did not abuse its discretion.

Comments/Impressions

This case is a good review of many common issues in equitable distribution. In particular, we are reminded of the broad discretion that the trial court has when making determinations as to the value of assets. It also reminds us that when a party utilizes self-help to unilaterally dis-

continued on page 33

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202033

Case Notes

pose of assets, that party risks adverse consequences in equitable distribution as a result. Finally, this case shows us that when a party was the primary wage earner during the marriage and then chooses to make substantially less money (or even no money at all) during separation, the court will not hesitate to hold that party to an earning capacity which may obligate him to an alimony award regardless of his current income.

Shawnee Strasko is a partner at the firm of McMahon Winters Strasko, LLC in Lancaster, Pennsylvania. She focuses her practice exclusively on family law issues. She graduated from the Pennsylvania State University in 2000 with a major in Political Science and minors in Southeast Asian Studies, Women’s Studies, and Art History. She obtained her Juris Doctor from the New England School of Law (now New England Law Boston) in 2005. She is a member of the Pennsylvania Bar Association, the Lancaster Bar Association, the Family Law sections of the Pennsylvania and Lancaster Bar Associations, sits on the Board of the Lancaster Bar Association, and is Chair of the Lancaster Law Review. shawnee@mcmahonwinters.com(717) 358-0600

No Abuse of Discretion

continued from page 32

Considerations of Use of Medical Marijuana in Custody DeterminationsH.R. and C.A.R. v. C.P. and J.M., 224 A.3d 729 (Pa. Super. 2019)

By Teresa C. Marino

The Medical Marijuana Act does not preclude the trial court from making relevant factual findings concerning the effect of marijuana use, whether medical or recre-ational, when determining a parent’s ability to care for a minor child.

Summary of Facts

Father, C.P., appealed from a custody order entered by the trial court, which awarded him periods of supervised physical custody with the minor child, age 10. The child was born of the relationship between Father and Moth-er, J.M. Both parents struggled with substance abuse, and Father’s use of marijuana had been a recurring issue throughout the custody litigation. After the parties separated, Maternal Grandparents, H.R. and C.A.R., had primary custody of the child pursuant to a Stipulation entered into the parties, which began in July 2012. At the time, Mother alleged that Father fed the child a “fire cracker,” which was described as a graham cracker topped with marijuana-laced peanut butter. Father also admitted to using marijuana recreationally and socially since he was 18, and Mother reported that Father used to grow marijuana plants in their home.

As a result of the July 2012 order, the parties shared le-gal custody, Mother exercised periods of physical custody for up to four hours on alternating weekends, and Father exercised supervised periods of physical custody for three hours on alternating Saturdays. In a subsequent order entered in July 2015, the trial court provided Father an opportunity to exercise custody unsupervised based upon his “willingness to demonstrate sobriety and continued abstinence.” Father was required to submit to hair follicle tests every six months for a period of two years from the date of the order if he wanted to expand his custodial time.

In June 2018, Father filed a petition for modification, contending that his marijuana use should no longer be an issue because Father obtained a medical marijuana license. The trial court disagreed, finding that after a review of the Section 5328 factors and the safety con-cerns raised by Mother and Grandparents, the child’s best interests were served by continuing the prior custody arrangement, including the hair follicle testing condition.

Issues

Father presented two issues for the appellate court on review: 1) whether the trial court erred by discounting the evidence he produced to establish his medical condi-tion and his certification to use medical marijuana, and 2) whether Father should have been required to present testimony from his physician as evidence of his underly-

continued on page 34

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202034

Case Notes

ing medical condition and diagnosis.

Holding

Although the appellate court found that Father’s brief was deficient, given that his legal argument was under-developed and without citation to any legal authority, the court still addressed the merits of Father’s claim as it relates to the Medical Marijuana Act.

The court affirmed the trial court’s decision and held that Father’s certification to use medicinal marijuana does not bar the trial court from considering any aspect of Father’s marijuana use in reaching its best interest determination. The Medical Marijuana Act (35 P.S. § 10231.2103(c)) specifically reaffirms Section 5328 of the Custody Act as the controlling mechanism for determin-ing a child’s best interest and, as such, the Medial Mari-juana Act does not preclude a trial court from considering the effects of marijuana use on a parent’s ability to care for a minor child. Further, Section 5328 requires the trial court to consider a parent’s drug and alcohol history, mental health, and physical condition, and, therefore, to ignore Father’s marijuana use would be contrary to the statute. The record clearly established that Father previously abused marijuana and put the child in unsafe situations. The fact that Father later obtained a medical marijuana card does not negate these concerns.

Comments/Impressions

In making its decision, the Superior Court compared Father’s marijuana use to a parent’s use of OxyContin, Vicodin, codeine, and morphine, as these are legal sub-stances when prescribed by a physician. It would not be unreasonable for the trial court to consider a parent’s pri-or abuse of these controlled substances when determin-ing the best interest of a child, and the same applies to a medical marijuana card. A trial court must consider the legal use of these substances and how, if at all, it impacts a parent’s ability to care for a minor child. The Medical Marijuana Act cannot penalize a parent for obtaining a medical marijuana license, but the court can consider the effects of such use on the child’s best interest. As in other appellate opinions, the best interest factors enumerated in Section 5328 of the Custody Act reign supreme.

Considerations of Use of Medical Marijuana in Custody Determinations

continued from page 33

Teresa C. Marino is an of counsel attorney at McNees Wallace & Nurick LLC, where she exclusively practices family law. In 2017, Marino expanded her practice to include collaborative law, as she supports a client’s choice in process, as well as representation, when resolving disputes. Prior to entering private practice in 2011, she served as a law clerk to the Honorable David R. Workman, Lancaster County Court of Common Pleas, where she worked on family law and juvenile delinquency matters.tmarino@mcneeslaw.com717-237-5471

In light of health and safety issues raised by the COVID-19 pandemic, the Pennsylvania Board of Law Ex-aminers announced on April 28 that, with the approval of the Pennsylvania Supreme Court, it has rescheduled the July 2020 bar exam to Sept. 9 and 10, 2020. At the same time, the board announced that the court approved a limited license that will allow qualifying applicants to practice under the supervision of experienced lawyers.

“With the support of our COVID-19 Task Force, the PBA advocated for adopting measures to assist law students on schedule to graduate in May 2020,” said PBA Presi-dent Anne N. John. “We are hopeful that the court-ap-proved initiative will place additional lawyers in positions

to assist the public with the many legal issues arising from the effects of the pandemic, while allowing these students to begin their legal careers under the direct and ongoing supervision of an attorney. In addition, we will support the board in its continuing efforts to assist gradu-ating law students while balancing safety measures.”

Read the Board of Law Examiners report at https://www.pabarexam.org/COVID19Info.htm.

PBA Credits Board of Law Examiners for Addressing Plight of 2020 Graduating Law School Students

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202035

In Memoriam

S.R.G. v. D.D.G., 224 A.3d 368 (Pa. Super. 2019)

By Phillip Sylvester

Brief Summary/Factual History In December 2019, the Superior Court ruled that

a grandfather could not be held responsible for child support payments to a grandmother if neither party had previously attempted to assert their custody claims against a parent first. S.R.G. v. D.D.G., 2019 Pa. Super. 355 (2019). S.R.G.’s factual history told the story of two grand-parents trying to provide a safe, stable home life for their grandchild after their daughter (Mother) stepped away from her parental duties due to mental illness. Neither grandparent sought to terminate Mother’s parental rights or enforce a support order against Mother. Instead, the parties “gratuitously assumed the burdens of custody” in order to maintain a relationship and a safe upbringing for their grandchild. This gratuitous acceptance of custody by agreement eventually became muddled when Grand-father filed for divorce from Grandmother. Grandmother relocated to Florida while Grandfather remained in Pennsylvania, and the parties executed a modified cus-tody schedule which allowed both grandparents physical custody, and later, shared legal custody.

Issue

The issue in this case is whether Grandfather, a third party to the grandchild, could be held liable for child sup-port to Grandmother (also a third party).

Holding

The Superior Court affirmed the lower court’s ruling that a third party standing in loco parentis could not pursue child support against another third party until the third parties had “taken sufficient affirmative steps legally to obtain parental rights.” Since the parties had entered into agreed custody orders without ever attempting to

abrogate Mother’s legal or physical rights to the child, the court determined that Grandfather had “not insisted upon or become a full parent to the child,” he merely attempted to maintain a relationship with his grandchild. Lacking statutory authority to enforce a custody order, the court found that its power was limited, even if it was a close call.

Comments/Impressions

President Judge Panella penned this opinion, which will likely not be the last on the subject. The fact pattern presented a very close balancing act for the hearing judg-es. On one hand, the parties were standing firmly in loco parentis and were the closest thing the child ever had to a nuclear family. On the other hand, Mother still had the opportunity to begin asserting her legal right to the child, and neither party ever took steps to remove those rights from her. Pennsylvania may be ripe for further cases on this issue as litigants and lawyers try to determine how much third party involvement is enough to establish a third party as a “full parent in every sense of that con-cept.” Further, how might the court continue to draw the line of what constitutes usurping a parental role? Here, the parties were acting as parents in every sense of the word. Mother’s consent to the grandparents’ parenting was a deciding factor in this case, but what weight does a court give to Mother and her ability to consent despite being mentally ill? This opinion provides a roadmap to a gray area of law that future third party caretakers may want to avoid. However, if they end up in a similar pre-dicament as the parties in S.R.G., their attorneys should determine whether that third party is truly a “full parent” or whether they merely adopted the burdens of custody.

Case Notes

Third Parties May Gratuitously Assume Custodial Burdens without Assuming a Support Obligation

Phillip Sylvester is an attorney at Berner Klaw & Watson, practicing all aspects of family law. He can be reached at psylvester@bkwfamily.com or 215-790–8800.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202036

Bylaws

At the January 2020 Winter Meeting of the Section in Hershey, the Family Law Section voted to approve new bylaws for the section. A copy of the marked-up bylaws showing the revisions is printed here. The section consis-tently reviews the bylaws to be sure they are up to date and current with the time. The section takes into consid-eration the opinions of the membership. A recent review took place led by Helen Casale and Michael Bertin, and the following changes were made:

• Revised makeup of the nominating committee• Revised requirements for application to Council• Revised language to our mission to include those

issues that involve the LGBTQ community

ARTICLE IGeneral Provisions

Section 1: Name. – This Section shall be known as the Family Law Section.

Section 2: Purpose. – The purpose of the Family Law Section shall be to bring together for better acquaintance and mutual advantage those members of the Pennsyl-vania Bar Association who are interested in the develop-ment and practical working of the law, both substantive and procedural, relating to marriage, divorce, protection from abuse, support, custody and visitation of children and domestic relations generally, as well as the law relat-ing to adoption, ART, parentage, LGBTQ, family law issues and to juvenile matters.

Section 3: Definitions. – For the purposes of these by — laws, the following words, unless the context requires otherwise, shall mean:

“Association.” – The Pennsylvania Bar Association.“Council.” – The Council of the Section.“Section.” – The Family Law Section of the Association.

ARTICLE IIMembership of Section

Section 1: Membership; dues. – Any member of the Association, upon request to its Secretary and upon pay-ment of annual Section dues in the amount established by the Council with approval of the Association’s Board of Governors, shall be enrolled as a member. Thereafter, dues shall be paid in advance each year beginning of the

first of January next succeeding such enrollment. Any member whose annual dues shall be more than twelve (12) months past due, and who shall fail to make pay-ment within one month after the receipt of notice of delinquency by mail, shall cease to be a member of this Section.

ARTICLE IIIOfficers

Section 1: Positions created. – The officers of this Section shall be Chair, Chair-Elect, First Vice Chair, Second Vice Chair, Secretary, Treasurer and Past Chair.

Section 2: Chair. – The Chair shall preside at all meet-ings of the Section and of the Council and its Executive Committee and shall formulate and present at each annual meeting of the Association a report of the work of the Section for the past year. The Chair shall appoint the chairs and members of committees established by the Chair or created under resolution of the Council. The Chair shall be the spokesperson for the section unless some other person is so designated by the Chair. The Chair shall perform such other duties and acts as usually pertain to the office.

Section 3: Chair-Elect. – The Chair-Elect shall upon the expiration of the Chair’s term of office or upon the Chair’s death, resignation or inability to act, assume the office of Chair of the Section. During a period of temporary absence or disability of the Chair, the Chair-Elect shall act as Chair. The Chair-Elect shall assist the Chair in the per-formance of the Chair’s duties as directed by the Chair. No person who has not served as an officer or member of Council shall be nominated as Chair-Elect.

Section 4: Vice Chairs. – The Vice Chairs shall be re-sponsible for promoting and maintaining membership in the Section by serving on and chairing such committees and undertaking such functions as the Chair shall desig-nate and otherwise aiding the Chair in the administration of the Section.

Section 5: Secretary. – The Secretary shall keep a true record of the proceedings of all meetings of the Sec-tion, the Council and its executive Committee, whether assembled or acting under submission. With the Chair,

Family Law Section Approves New Bylaws

continued on page 37

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202037

the Secretary shall prepare a summary or digest of the proceedings of the Section at its various meetings for publication in the annual Report of the Association.

Section 6: Treasurer. – The Treasurer shall keep ap-propriate records of all dues Collected from members, all funds received by or credited to the Section and all expenses of the Section. At each annual meeting of the Section the Treasurer shall make a report of the financial status of the Section and a statement of any balance on hand which will be carried into the ensuing year. The Chair and Treasurer shall be empowered to sign requisi-tions upon the Association treasury for disbursement of Section funds.

Section 7: Past Chair; delegate to Association’s House of Delegates. – The immediate Past Chair of the Section shall serve as the Section’s delegate to the Association’s House of Delegates and as Chair of the Section’s Nominat-ing Committee.

Section 8: Terms of office. – Officers shall be elected at each annual meeting of the Section and shall hold office for a one year term, without the right of succession, be-ginning at the close of the annual meeting at which they are elected and ending at the close of the next annual meeting.

ARTICLE IVCouncil

Section 1: Membership. – There shall be a Council which shall consist of the officers of the Section, the immediate Past Chair and 21 other members of Council to be elected by the membership of the Section. In order to qualify for election to Council, the member must be in the practice of law for four years and a member of the Pennsylvania Bar Association Family Law Section for no less than two years. All other Past Chairs shall be ex offi-cio members of Council and shall be entitled to notice of and right to attend all meetings of Council and to partic-ipate in the business of the Section but without the right to vote.

Section 2: Meetings. – The Council shall meet in con-junction with the mid — year and annual meetings at a time, on a date and at a place determined by the Council. The Chair may, and upon written petition of at least ten council members the Secretary shall, call a special meet-

ing of the Council. The minutes of the Council’s meetings shall be supplied to all its members promptly after each meeting.

Section 3: Terms of office. – At each annual meeting of the Section, seven members of Council shall be nominat-ed and elected to hold office for a three year term, begin-ning at the close of the annual meeting at which they are elected, and ending at the close of the annual meeting three years thereafter. A member of Council who serves one full three year term, cannot immediately be re-elect-ed to another three year term. However, after the expi-ration of one year from the expiration of any member’s term, they may run for Council again. In no year shall more than three Council members be elected to Council who have previously served a term on Council.

Section 4: Powers and duties. – The Council shall have general supervision and control of the affairs of the Sec-tion subject to the provisions of the Constitution and By laws of the Association and the Bylaws of this Section. It may do all things necessary to operate as the legislative and governing body of the Section. It shall adopt an annu-al budget at the Section’s annual meeting for the ensuing fiscal year. It may provide for the publication of a newslet-ter, journal and digest and determine the editorial policy for each. It shall approve all commitments or contracts which entail the payment of money, and shall approve the expenditure of all funds appropriated for the use or benefit of the Section. It may authorize committees appointed by the Chair from Section members to perform such duties and exercise such powers as are necessary to carry out the purposes of the Section, subject to the lim-itations of these Bylaws and the Constitution and Bylaws of the Association.

Section 5: Vacancies during interim. – The Council during the interim between annual meetings of the Sec-tion may fill a vacancy in its own membership or among the officers. The person chosen shall serve until the end of the next annual meeting for which that term shall have expired.

Section 6: Voting. – All binding action of the Council shall require an affirmative vote of at least eight mem-bers. The vote may be taken in person or by mail, tele-phone, telephone conference call, fax, electronic mail or other similar method as determined by the Chair, provid-ed that the vote is received by the Secretary before the

In MemoriamBylaws

continued from page 36

continued on page 38

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202038

Bylaws

close of the vote upon the proposition.Section 7: Executive Committee. – There shall be an

Executive Committee of the Council consisting of the officers and two members of the Council appointed by the Chair for a term of one year. The Executive Commit-tee may meet in person or by mail, telephone, telephone conference call, fax, electronic mail or other similar method. A meeting may be called by the Chair and, upon the written request of five committee members, shall be called by the Secretary. Appropriate notice of a meeting of the Committee shall be given by the Secretary. Minutes shall be kept of the meeting and the same, or a summary thereof, shall be promptly provided to all members of the Council. The Executive Committee shall address those matters which can not be deferred until the annual or midyear meetings or a meeting of the Council.

ARTICLE V

Nomination and Election of Officers and Council

Section 1: Nominations. — At least 90 days before the first session of each annual meeting of the Section, the Chair shall appoint a Nominating Committee. Said Committee shall be comprised of the Chair-Elect, Im-mediate Past Chair, the First Vice Chair, the Treasurer, two members of Council and one Past Section Chair. The Nominating Committee shall be chaired by the immedi-ate Past Chair, who shall make and report nominations to the Section membership for officers and members of Council to succeed those whose terms will expire at the close of the annual meeting and members of Council to fill those vacancies for which there is a nonexpired term. Immediately following the decision from the Committee, a confidential written report shall be sent to the Officers. In addition, the report shall also be made in writing in a manner reasonably calculated to inform the member-ship, such as its inclusion in any regular publication of the Section. The report shall be mailed to the membership at least 40 days prior to the date set for the election of officers and council members. Other nominations must be made in writing by petition to the Chair of the Nomi-nating Committee signed by 35 members of the Section received at least 25 days prior to the date set for the elections.

Section 2: Elections. – All elections shall be sched-uled by the Council to be held during the annual meeting of the Section.

ARTICLE VIMeetings

Section 1: Scheduled meetings. – The annual meeting of the Section shall be held at such place, date and time as the Council shall determine, with such program and order of business, including the time fixed for elections, as may be proposed by the Chair with the approval of the Council. There shall annually be a midyear meeting and may be such other meetings of the membership to be held at a place, on a date and at time to be determined by the Council.

Section 2: Special meetings. – Special or adjourned meetings of the Section may be called by the Chair, with the approval of the Council, at such time and place as the Chair shall determine.

Section 3: Quorum. – The members of the Section present at any meeting of the Section called as provided by these Bylaws shall constitute a quorum for the trans-action of business.

ARTICLE VIIMiscellaneous Provisions

Section 1: Fiscal year. – The fiscal year of the Section shall be the same as that of the Association.

Section 2: Association action required. – Any action by this Section which must be approved by the Association before it becomes effective as the action of the Associa-tion shall be reported by the Chair or a designee of the Chair to the next meeting of the Association’s House of Delegates or Board of Governors for appropriate action.

ARTICLE VIII

Amendments

These Bylaws may be amended at any duly called regular or special meeting of the Section. The proposed amendment shall first have been approved by the Coun-cil. No amendment shall be effective until approved by the Board of Governors of the Association.

Approved by the PBA Board of Governors on Aug. 2, 2007

continued from page 37

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202039

Bar Review

Adam H. Tanker, an attorney at Obermayer Rebmann Maxwell & Hippel, focuses his practice on all aspects of family law matters. He is a former Deputy District Attorney for the Bucks County, Pennsylvania, District Attorney’s office, where he served as chief of the Asset Forfeiture Unit and was assigned to the office’s gangs, guns, and drug unit. He also acted as the office’s community liaison for gang violence. After graduating from George Washington with a degree in criminal justice, he went on to earn his juris doctor from Widener University School of Law, where he was a member of the Trial Advocacy Team.Adam.Tanker@obermayer.com 215-606-0754

By Adam H. Tanker

Daniel M. Keane of Clemons Richter & Reiss, P.C., in Bucks County was named president of the Bucks County Bar Association.

The Honorable Daniel J. Clifford of the Montgomery County Court of Common Pleas was elected chair of the Family Law Section of the Pennsylvania Conference of State Trial Judges.

Gerald L. Shoemaker Jr. of Hangley Aronchick Segal Pudlin & Schiller was named chair of the Family Law Sec-tion of the Montgomery County Bar Association.

Our section mourns the loss of Alfred Marroletti. Al practiced in Philadelphia County for over 27 years. Al was a 30-year fellow in The American Academy of Matrimo-nial Lawyers and served as counsel for the Family Court of Philadelphia.

Samantha E. Cole of Gosner and Gosner, P.A. was named chair of the Family Law Section of the Chester County Bar Association.

Michael J. Hutter has joined the Pittsburgh office of Frank, Gale, Bails, Murcko & Pocrass, P.C.

Melanie E. Tunaitis of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. was named

chair of the Family Law Section of the Delaware County Bar Association.

Melanie J. Wender has joined Curtin & Heefner, LLP, in its Doylestown office.

Lea E. Anderson of Goehring, Rutter & Boehm was named chair of the Family Law Section of the Allegheny County Bar Association.

Ann E. Endres and Lauren Marks of Palange, Endres & Marks, P.C. have been named co-chairs of the Family Law Section of the Berks County Bar Association.

Randi L. Rubin of Klehr Harrison Harvey Branzburg, LLP. was named chair of the Family Law Section of the Phila-delphia Bar Association.

Upcoming PBA Family Law Section Meetings

Family Law Section Winter MeetingJan. 15-17, 2021Lancaster Marriott at Penn Square, Lancaster

Family Law Section Summer MeetingJuly 15-18, 2021Hyatt Regency Chesapeake Bay Resort, Cambridge, Md.

Family Law Section Winter MeetingJan. 13-17, 2022Loews Philadelphia Hotel, Philadelphia

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202040

Bar Review

By Adam H. Tanker

Aaron is a partner at Fox Rothschild LLP, and works out of its Blue Bell office

1. Full name? Aaron Douglas Weems 2. How did you become interested in family law/why

did you choose this area of law? I was drawn to family law because it is a multi-disci-

plined practice that afforded me the chance to try cases and have a meaningful impact on my clients’ lives. I have found that I enjoy the chance to collaborate with opposing counsel to find resolutions when possible, try cases when necessary, and appreciate that both have an important role in my cases. I take a lot of personal and professional satisfaction in helping clients through a difficult period in their lives and putting them in a better place than when I first met them.

3. How long have you been practicing and where? I joined Fox Rothschild in 2008 in the Bucks County

office, after spending my first five years with a boutique litigation firm. A professional opportunity to move to our Montgomery County office aligned remarkably with a personal need to be closer to my home after my son was born with a rare metabolic disease and had undergone a liver transplant only a few months prior. Long-term it has proven to be a terrific professional move, allowing me to grow and develop my practice within the firm as well as in Montgomery County, the adjoining counties and in other areas of the state.

4. Why did you choose to live and practice in Mont-gomery County?

I moved to Conshohocken out of law school and stayed there for about 12 years because of its character and independent feel. It reminded me of the quirky towns I grew up in in the mid-west and south. The county itself is incredibly diverse in every regard and makes it one of the most interesting counties in which to practice law.

5. What’s your favorite thing about Montgomery

County? The Schuylkill River and River Trail … and how easy it

is to support local breweries. We love being close to Phil-

adelphia and still having green spac-es easily accessible to our children like Valley Forge National Park, the River Trail and Wis-sahickon Park.

6. What’s your

perfect vacation? Our perfect

vacations tend to involve mountains, mornings of skiing or hiking, and then lazy afternoons of good beer and early dinners.

7. What’s your favorite book? A River Runs Through It – Norman Maclean 8. What’s your favorite TV show? The Office 9. What’s your favorite movie? Butch Cassidy and the Sundance Kid 10. What’s your favorite quote? “Caveat emptor.” As said to me by my father-in-law,

in front of a church full of people, as he gave away his daughter at our wedding.

11. What’s one thing that we don’t know about you? I spent much of my childhood in Monroe, Louisiana,

where I was evacuated twice by the National Guard due to flooding. For a few months I needed a rowboat to help get to school, and alligators cruised the flooded woods in our backyard.

12. What are your pet peeves in terms of practicing

family law? My goal for each case is an efficient and effective

outcome for the client, and it can be frustrating when circumstances or other factors prevent that from happen-ing.

Aaron Weems

Get to Know a Member: Aaron Weems

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202041

Technology Corner: Remote Working Edition

By Joel Bernbaum

I am a sole practitioner and work in a small office with two other lawyers who are partners. We do not have any staff and see clients infrequently. However, we are now working remotely.

I am lucky to live five minutes from my office in Bala Cynwyd, which allows me to retrieve files and papers, if needed. I have received emails and calls to talk about remote practicing, and I want to share my thoughts. I wel-come questions or comments. Direct them to my email: joel@bernbaumfamilylaw.com. Thanks.

1. Inventory all your devices, screens, cables, char-gers, supplies, outlets, Wi-Fi, Internet access. Whatever you may need to use for your tasks. Make sure they are working and up to date, es-pecially operating systems, apps, applications and passwords.

2. Review all the emergency orders and correspon-dence from the Supreme Court, the governor, and your county. Check on a daily basis. Make sure you are getting and reading your office and personal mail including email. Respond as required.

3. Find a place in your location that is well lit, com-fortable and is not distracting (not in the kitchen, facing your TV or any other temptation).

4. Organize and plan ahead. More than a to-do list. Itemize a routine, including breaks, eating, reading and answering the mail, etc. Remember to stick to it; this is your livelihood and treat it that way.

5. GO OUTSIDE! Take a walk, a run; do something to break up the day and get some exercise. I usually go for a walk at lunchtime for an hour and get a smoothie from Wawa. Pre-order and pay on their app and grab and go.

6. CONNECT – call clients, friends, and family. Find out how they are and if needed, if you can help. Use video apps like Facetime, Zoom, or Skype. Use well-known and proven software. This is no time to experiment with the latest and the greatest or the cheapest. Use something that works. I will put my choices below.

7. Don’t forget to take care of your families and pets; check on your neighbors. Reach out and help oth-ers; we are in this together.

Here is my list. I am not endorsing, just giving you a start. I welcome comments from you. That is why there is chocolate and vanilla. The main issue is finding something that works for you. This is what I use:

• Dropbox for storing and accessing all my files in my office and remotely. Fast, safe and secure at fair price.

• Zoom for my video/virtual needs. Works across all platforms, fast, easy to connect and has excellent advanced features.

• HP instant ink for my printing, Stamps.com for postage, Law Pay for credit card payments, Cos-molex for billing and more, Staples for supplies (delivers).

Be safe out there.

Please send your questions and comments to me at:joel@bernbaumfamilylaw.com.

Joel Bernbaum is the founder of the Bala Cynwyd family law firm of Bernbaum Family Law Group. He is a fellow of the American Academy of Matrimonial Lawyers, serving as president of the Pa. Chapter in 2007. He is a member of the American, Pennsylvania, Illinois and Montgomery bar associations with active participation in their respective family law sec-tions and/or committees. He was formerly co-chair of the PBA’s Technolo-gy Taskforce. He is a former director and chair of the Family Law Section of the Montgomery Bar Association and served two terms on Council of the PBA Family Law Section. joel@bernbaumfamilylaw.com610-667-7902.

Thoughts on Making Working Remotely

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202042

By David Pollock

During the summers after my first and second years at Duquesne University School of Law, I served as a law clerk to established small law firms in downtown Pitts-burgh. The senior attorneys were wise persons. One referred to his knowledge as “Stone’s Law.” In my third year I sought a clerkship in the Court of Common Pleas of Allegheny County, Civil Division to begin my career. I wanted a mentor, teacher, an accomplished attorney and now judge who would teach me to be a competent civil trial lawyer. I wanted to learn and focus my research and writing talents. My dream was fulfilled by Judge Maurice Louik who had been the Allegheny County Solicitor and became a judge in the Court of Common Pleas of Alleghe-ny County, Civil Division. My assignments were numerous and varied. Judge Louik’s decisions were always support-ed by the appellate law. Each day I looked forward to being and talking with Judge Louik and experiencing his in-chambers meetings or courtroom activity. If necessary, I would work nights or weekends or whenever to fulfill my research assignments or to complete memoranda and the written portion of opinions.

As I neared the end of my two-year commitment, I wanted to work for learned attorneys to establish my ca-reer in civil trial work. I then knew that ethics and morals were very much a part of a successful law career. Judge Louik taught me to be honest in the law. He affirmed to love the law and maintain ethical and moral practices. He taught me to maintain the highest values to develop a reputation of honesty, decency and dependability. My handshake was to be my personal commitment. He coun-seled that it would also enable me to maintain my value system (my conscience) that had been taught to me over a lifetime by older wiser people: mine and Rita’s parents, our beloved uncle and aunt, family, rabbis, teachers, and professors. Judge Louik was a public servant in the

truest sense. As the County Solicitor from at least the late 1940s, and then a judge, Judge Louik loved the law and serving his community. I knew before, and he reaf-firmed to me, that being a lawyer was a profession, not merely a business. I was able to find (through my closest law school classmate) a small firm with two wise senior semi-retired attorneys, three partners and five associates — my career was launched!

I would not be an attorney chasing attorney fees. Trying to make the most money on a case was never going to be me — that was for others. Rather, the priorities would be doing the right thing for my clients and community. Getting paid was the reward but it was not the primary goal. I remembered something my father taught me from his profession as a general practice physician in Altoona, Pennsylvania: “Don’t worry about the money, worry about the patient. The money will take care of itself.”1 On the other hand, I could never be oblivious to the needs, thoughts and wants of my clients’ situations. I had older mentors early in my career and always sought mentors throughout my career to this very day.2 It is essential to becoming a good and dependable lawyer. Seek and listen to the voices of accomplished, successful, ethical, and above all, moral attorneys.

Advice to My Younger Self

My Younger Self Sought Mentors to Guide My Career and Life’s Path

David S. Pollock is a co-founder of the Pittsburgh firm of Pollock Begg Komar Glasser & Vertz LLC, past chair of PBA Family Law Section, past chair of ACBA Family Law Section, current treasurer of PA Chapter, AAML, Fellow of both the AAML and IAFL (and U.S.A. Chapter, member Budget and Finance Committee) and past treasurer, JCC of Pittsburgh. dpollock@pollockbegg.com412-471-9000

1This was prior to the days that insurance companies controlled the medical profession and its earnings.

2My mentors are now younger than I am, such as my law partners.

Pennsylvania Bar Association Family Law Section • Family Lawyer • Spring 202043

PBA Family Law SectionNominating Committee Report 2020

The Family Law Section of the Pennsylvania Bar Association is governed by bylaws last amended in January 2020. Ar-ticle V of those bylaws requires that at least annually, a Nominating Committee be assembled for the purpose of making nominations for section members to fill officer and council member vacancies. This year, as immediate past chair of the section, I served as chair of the Nominating Committee. Members of the committee are David Schanbacher (chair-elect), Helen Casale (first vice chair), Missy Boyd (treasurer), Carol A. Behers, Anthony Hoover and Brian Vertz who were appointed by the current chair. We met via telephone conference on Wednesday, April 15, 2020 and April 17, 2020, at which time we reviewed the candidates for council and treasurer, each of whom is self-nominated. We present the fol-lowing slate of section nominees:

OFFICERSCHAIR: David C. SchanbacherCHAIR-ELECT: Helen E. CasaleFIRST VICE-CHAIR: Darren J. Holst SECOND VICE-CHAIR: Hillary J. MoonaySECRETARY: Melissa M. Boyd TREASURER: Gerald (Jerry) L. Shoemaker

COUNCIL MEMBERS:Kathleen O’Connor, Susan E. Good, Elizabeth J. Fineman, Aaron D. Weems, Christina DeMatteo, Debra D. Cantor, Kim

Litzke, and for a one-year term to complete Jerry Shoemaker’s seat, Kelley Menzano Fazzini

Official voting by the membership of the Family Law Section will take place during a special section meeting to be scheduled. All members are invited and encouraged to attend this meeting. The Nominating Committee extends thanks to everyone who expressed an interest in becoming an officer or council member of the section. I believe I speak for the entire nominating committee in expressing our high regard for all of the section members who applied for either council or treasurer positions. We had almost twice as many applicants per seat available, and they were all dedicated members, highly qualified and contributors to the section, so it was a challenge to narrow the choices down. I encourage anyone who has an interest in these positions to get involved in section committees and to regularly attend the semi-annual meetings if you have an interest in a leadership position. Also, as there can be high interest, do not lose motivation if you were not nominated and apply again for future seat openings.

Finally, we also greatly appreciate the service and dedication of those council members whose terms are expir-ing. They are Melissa P. Greevy, Anthony M. Hoover, Eileen G. Murphy, Jill M. Scheidt, Heather Trostle-Smith, Lauren L. Sorrentino and Brian C. Vertz.

Respectfully submitted: /s/ Gail C. Calderwood, Nominating Chair