Friday, May 22, 2015

The factors a court in Pennsylvania must consider in awarding custody

Anyone litigating a custody case in Pennsylvania most likely has heard of the factors in the custody statute.  When “ordering any form of custody,” a court must consider the 16 factors listed in the statute and also explain their consideration of the factors in the final decision.  When a judge does not adequately analyze all of the factors in the statute, the losing party has a good chance on appeal of having the Superior Court overturn that decision.  However, the definition of “adequately analyze” can be wildly interpreted.

Recently, in Philadelphia County, parents were litigating over who should have custody of their 2 year old child.  The trial court ultimately awarded primary custody to Mother, providing her with 8 days out of every 14 while Father had partial custody for 6 days out of every 14.  Notably, one more day taken away from Mother and given to Father would have been an equally shared custody arrangement.

Father appealed because, although the Judge’s ruling seemed to indicate that the child would be better off with Father, the Judge awarded primary custody to Mother.  Ultimately, on appeal, the Superior Court sided with Father and he gained primary custody, on the basis that the analysis by the trial judge tilted towards Father.  This particular case, for which the Opinion can be found by clicking here, was a Philadelphia County case where the wait for court times is notoriously long.

In this case, when the parties separated, Mother created the status quo by taking custody of the child.  She then denied Father access and at the initial Court hearing, the Court granted him very limited time with the child.  Unfortunately, when the case finally went to a full trial, the court relied on the so-called “status quo,” in that the Mother had been the primary custodian for quite some time.  However, the Appellate Court rightly noted that the status quo was Mother’s creation; Mother had taken the child and then purposely limited Father’s time, thereby making her the de facto primary parent.  This Opinion is also notable because both the Trial Court and Appellate Court commented on the apparent lack of cooperation between Mother and Father which the court found was due to Mother’s attitude as well as the maternal grandmother’s interference with parenting.

Clients are often told during custody hearings that they should do everything possible to cooperate with the other parent, both because it would be in the child’s best interest to have communicating parents and because cooperation with the other parent is a factor the Court always considers in awarding custody.  Unfortunately, due to the hurt feelings, mistrust and emotional toll of custody litigation, parents often do not heed this advice.  Refusing to cooperate with the other parent may be one parent’s way of trying to protect the child from the other party’s allegedly inferior parenting.  However, many times, failure to co-parent can backfire, causing the Court to look upon the non-cooperating parent unfavorably.

In the case discussed above, for example, the Appellate Court noted that “due to the lack of cooperation cited by the Trial Court [on behalf of Mother], awarding primary physical custody to Father might be of significant benefit to Child. . . and might make Mother realize that her lack of cooperation and attempts at alienation will not be rewarded.”

Cooperation between parents not only benefits the child, but may help in custody litigation. Parents going through child custody litigation should make every effort to cooperate with each other, and ensure that both parents remain in contact with the child.

Wednesday, May 20, 2015

Is child custody really a fight over money?

In Pennsylvania, the parent with primary custody has a right to receive child support from the other parent.  The custody statute defines the primary parent as the parent with the greater number of overnights.  Accordingly, a parent having at least 8 overnights in a 14 day period, is considered the primary parent.  Some people would view a custody arrangement where the time with the child is almost evenly split to be a shared arrangement.  In fact, some judges even call this a shared arrangement.  However, for purposes of child support, the parent with even one more overnight is considered the primary parent and is therefore entitled to receive child support, although this support would be slightly discounted in a nearly shared arrangement.

Even if the custody arrangement shifts to a true shared arrangement, that is the overnights are shared on a 50/50 basis so that in a 14 day period, each parent has 7 overnights, there could still be a child support order.  In those actions, the parent who earns more money would owe child support to the lower income parent.  This is a desire by the drafters of the guidelines to evenly divide income so that the children have the benefit of the income in both households.

Depending on the respective parents’ incomes, these quirks in the law can sometimes appear to result in inequities.  If the children spend almost the same amount of time with each parent, shouldn’t there be a more equitable way to address support?  Additionally, in some cases, the parent with slightly less time may be the parent who takes on must of the “primary parent duties,” but because custody is determined by overnights, that parent may not be recognized as the primary caretaker.
Recently, in a non-reported decision in the Superior Court of Pennsylvania called M.R.D. v. L.R.D., the court addressed these very issues.  As this is a non-reported decision, it cannot be used for precedential value.  However, it is helpful to understand the court’s reasoning and plan for your own case.

In M.R.D. v. L.R.D., the parties’ property settlement agreement created a custody schedule under which Father had more custody time than Mother.  A few year later, Mother filed a custody complaint and the court ordered shared custody, of seven days per parent in each two week period. When the child custody order was changed, support became an issue between the parties. Father continued to assert that he was the primary parent, and was thus entitled to child support. Rather, the Court found that Mother, whose monthly income was lower than Father, would receive child support as a result of the shared arrangement.

The Trial Court noted that the laws covering child support “recogniz[e] that the a primary custodian will bear most of the expenses of the children simply by virtue of having custody of the children for the majority of the time” but that when parties share custody “these expenses will be born in a more equal manner.” The trial court then applied the formula for calculating support obligations dictated by Pennsylvania Law.

Unfortunately, child support can motivate parents to fight over that one extra day.  In some cases, however, parties seek the psychological advantage of being called the primary parent. Whatever the reason, parents must thoughtfully and carefully seek the best child custody arrangement possible, taking all of the consequences, financial and otherwise, into account.

Wednesday, May 06, 2015

Re-entering the workforce

Separation and divorce often means a previously non-working parent must re-enter the workforce, often after significant time at home raising kids.  With the job market so competitive, finding a job can be daunting, especially when your skills and experience may be lacking due to your time out of the employment world.

The informative website: posted an excellent article detailing three actual stories of women who re-entered the workforce and succeeded.  Read the inspiring tales here.

Wednesday, April 29, 2015

Does taking your 11 year old daughter to a P!NK concert constitute abuse of parental discretion?

Contentious custody litigation often spirals out of control. Parents accuse each other of all sorts of wrongs, convinced that the other exhibits inferior parenting skills.  

One mother, in Ocean County, New Jersey, took her eleven (11) year old daughter to a P!NK concert in December 2013.  The girl's father objected and asked the court to view the mother's decision as poor parenting.  

Long term litigation ensued and, a year after the concert, the trial judge issues an opinion that the mother's decision to take her daughter to the concert was a "reasonable and appropriate exercise of parental discretion."  The trial judge also opined that "[E]ach parent serving as joint legal custodian generally has a right to exercise reasonable parental discretion over a child's activities while in his or her physical care, free from unreasonable interference, infringement, obstruction or attempted control by the other parent."  You can read the full, and lengthy decision, here.

If you think that concert tickets are expensive, imagine the cost of this trial!

Tuesday, April 28, 2015

Quote of the Day

Do not overestimate the competition and underestimate yourself.  You are better than you think.

-T. Harv Eker

Monday, April 20, 2015

Playing the “Mad, Sad, Glad” game with your kids.

During divorce or custody litigation it is especially important for you to keep open lines of communication with your children.  It is easy for children to simply say that their day was fine and to act like nothing is wrong.  However, when the stresses of divorce and custody litigation pile on top of a child’s real life stresses, like spelling tests, making the soccer team and making friends or childhood drama or bullying, a child’s life can be surprising trying.  Therefore, it is important to give your children an opportunity each day to open up to you about their lives.

A great way to facilitate these daily conversations is to play the “Mad, Sad, Glad” game during dinner or at bedtime or even in the car.  Each person simply has to state one thing that made him mad, one thing that made him sad and one thing that made him glad that day.  Another version is called “Peak and Pit,” and it has the same premise.  While you do not necessarily have to delve into any problems that come to light during dinner, you have the information needed to have a positive conversation with your child later or to address issues at school or otherwise.

By creating the habit of playing this game each day, you are teaching your child that you want to hear about her day and that you are listening.  Children even look forward to playing this game, because they know they they will have a comfortable way to bring up concerns or successes.  In short, this game gives both you and your children a positive, comfortable and routine way to discuss what is going on in their lives.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, April 16, 2015

Can you use text messages as evidence in court proceedings?

A recent Pennsylvania Supreme Court decision, Commonwealth of Pennsylvania v. Koch, discussed whether a criminal defendant’s text messages could be used as evidence during the criminal trial.  In that case, the defendant was accused of possession with the intent to deliver drugs.  When the police searched the defendant’s home they found drug evidence.  When examining her cell phone, they found text messages that they believed to be about drug sales.

At trial, the prosecution introduced the text messages as evidence of her participation in the sale of illegal drugs.  The defendant argued that there were two problems with using the text messages as evidence.  First, even though it was her phone, the prosecution could not prove that she actually was the individual who sent the text messages and the prosecution took no steps to authenticate the text messages.  Second, the defendant argued that the text messages were inadmissible hearsay.  In response, the prosecution argued that they were not, in fact, trying to prove the truth of the information in the text messages, but rather they were simply trying to demonstrate that those kinds of conversations took place.  The trial court ultimately held that the text messages could be entered as evidence at trial.  

The defendant was ultimately convicted at the trial level, and appealed, in part, arguing that the text messages were inadmissible as evidence.  The Superior Court reversed and held that the text messages were inadmissible.  Likewise, the Supreme Court upheld the Superior Court’s opinion, and a new trial was ordered.

When upholding the Superior Court’s reversal, the Supreme Court carefully examined the issues of authentication and hearsay.  Ultimately, the reversal landed on the shoulders of the hearsay objection rather than the concerns with authentication.  The Supreme Court acknowledged that the prosecution had done nothing to authenticate that the text messages were written by the defendant; however, the Supreme Court noted that the burden for proving authentication is not high.  In this case, because the defendant was also charged as an accomplice, it did not directly matter whether she had personally written the text messages.  The Supreme Court used this logic because part of whether an electronic communication, such as a text message, can be authenticated depends on the purpose of introducing the message as evidence.  In this case, because the defendant was also charged as an accomplice and co-conspirator, the fact that her phone was used for the messages, regardless of who wrote the message, was enough to satisfy the authentication burden.

In contrast, however, the Supreme Court noted that the prosecution failed to prove that the text messages were hearsay that were admissible under an established exception to the rule.  The prosecution tried to argue that the text messages were simply being admitted as evidence to prove that conversations about drug sales had occurred, but not as proof of the truth of the statements made.  One problem was that the prosecution then used an expert to testify about the text messages, in order to demonstrate that drug sales did occur.  In other words, the prosecution was using the text messages as proof of the crime itself.  For this reason, the Supreme Court reversed, because the text messages were some of the only proof against the defendant and they should have been inadmissible as evidence.

In family law cases, judges sometimes demonstrate a lax approach to evidentiary rules.  If you plan on using text messages as evidence, be prepared to do the following:

1 - Print out the complete text message chain with proof of the sender and receiver.  If your name or telephone number is clearly visible on the printout, this can help prove the sender and/or receiver.

2 - Make sure you can prove the date and time that the messages were sent and received.

3 - If you do not know how to print out text messages, call your cell phone provider.

4 - Always be extremely careful about what you write in text messages, and remember that one day a judge may read it.

Written by Elizabeth A. Bokermann, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, April 13, 2015

Preparing for an appraisal

Trying to determine the value of the marital home often can be a sticking point during the equitable distribution process of divorce.  If the parties are not selling the home, which would create a “value” for the home upon the sale of the home, then the parties must agree or have a court decide on the value of the home.  Sometimes, the parties can agree; however, the parties often have various motivations for either wanting a high or low value for the home.  Therefore, at times, a formal appraisal is necessary.

During an appraisal, a third-party expert assesses the property and determines a fair market value for the property based on many factors.  The factors include: location, size, features and  finishes (like flooring and countertops), the sales of recent comparable homes in the neighborhood, etc.  Many times, people do not spend much time preparing for an appraisal because they think that the appraiser is a neutral professional, who will not care whether the house is perfectly in order and freshly cleaned.  In theory, that might be true.  However, in practicality, appraisers fall susceptible to the same tricks as potential homebuyers.  Having a fresh, clean, de-cluttered and organized home can influence the appraiser into providing a higher value.  Likewise, you can try to do some of the homework for the appraiser.  If you know that other similar homes in your neighborhood have sold, you can find those listings for the appraiser and point them out.  Lastly, be armed with information about any improvements that you have made to the house since you purchased it.  

The more information that you can provide to the appraiser, the better and the more likely it will be that you will obtain a higher value on your appraisal.  For many people, the appraisal value of a home can impact equitable distribution far more than any other asset for the simple reason that it is often the largest asset that parties own.  Therefore, taking seriously the appraisal process will only help you obtain an accurate fair market value of your home.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, April 09, 2015

What do I have to prove to get a New Jersey restraining order?

In New Jersey, there are several things that a plaintiff must prove in order to obtain a final restraining order.  In the recent unpublished case, K.M. v. J.P.C., the Superior Court of New Jersey outlined the factors that a plaintiff must be able to prove.

First, the parties must be involved in a type of relationship (for example a boyfriend and girlfriend) that would make the party eligible to receive protection under the Prevention of Domestic Violence Act.  Next, the defendant must have committed an act as designated by the Act.  Lastly, the court must find that, under the factors outlined by the Act, the restraining order is necessary “to protect the victim from an immediate danger or to prevent further abuse.”

In K.M. v. J.P.C., the court found that a final restraining order was appropriate where the plaintiff’s ex-boyfriend sent her harassing and threatening text messages and communications over the course of several months upon learning that she was involved in a new relationship.  The court noted that not all vile outbursts would warrant a final restraining order, but the fact that the communications had occurred over a period of time and had become increasingly threatening were reasons enough to grant the order.

Click here for a handout from New Jersey Courts Family Practice Division for some more helpful information.  More importantly though, if you are in a situation where you do not feel safe or feel threatened, you must remember to protect your own safety.  It is appropriate to call the police when you feel that you are in an unsafe situation.  Then, after you are in a safe location, you can contact an attorney to discuss your options.

On the other hand, filing for a restraining order under the Prevention of Domestic Violence Act when your case does not meet the factors required can be disruptive, expensive and harm the opposing party’s opportunities for employment if it shows up in a background check.  The Prevention of Domestic Violence Act is an important tool to protect victims of abuse, but it should not be frivolously used a strategy tool in a divorce or custody situation.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns.

Monday, April 06, 2015

Why include a non-disparagement clause in a custody agreement?

Even in situations where parents are able to cooperate and reach a custody agreement in the best interests of their children, there can be high levels of animosity between the parents.  This often leads to negative talk about the other parent.  Negative or disparaging comments about the other parent are rarely productive, and they are absolutely harmful when heard by the parties’ children.  Not only is it harmful for a child to believe or know that one parent thinks ill of the other parent, but it is also harmful because a child often internalizes these comments.  In other words, children often wonder whether the parent thinks ill of them, because they share characteristics with the other parent.  After all, half of the child’s DNA comes from each parent.

Therefore, in the best interests of the children, it is important for a parent to never speak of the other parent in a negative way in front of the children.  Likewise, it is important for other family members, such as grandparents or step-parents, to stick with this rule as well.  In an effort to assist with this goal, we always encourage or insist that parents include a non-disparagement clause in a custody agreement.  The clause simply requires that neither parent nor any other person, such as a grandparent, speak negatively about the other parent in the presence of the children.

Sometimes we have parents respond by stating that they are not going to lie to their children.  In short, they mean that they are not going to hold back on the negative comments about the other parent, if they view the comments as the truth.  Unfortunately, this approach simply does not help a child.  We are not suggesting that you must lie about your feelings.  Rather, it is sometimes better to stick with the age-old advice - “if you have nothing nice to say, don’t say anything at all.”

These clauses are designed with the sole purpose of protecting the best interests of the children subject to the custody agreement.  It is a clause that is particularly difficult to defend in court, because proof is extremely difficult to obtain.  That said, it is a reminder to both parents to stay on their best behavior in front of their children.  Likewise, it also encourages parents to take a better attitude about the other parent, which can, in turn, facilitate better relationships between the parents.

Finally, three of the sixteen factors in the Pennsylvania custody statute address the ability of parents to cooperate.  Factor 1 requires courts to consider “which party is more likely to encourage and permit frequent and continuing contact between the child and the other party.”  Factor 8 requires the court to consider whether one of the parents attempts to “turn the child against the other parent.”  Factor 13 requires the court to evaluate the level of conflict between the parties.  Accordingly, should you choose to display animosity and toxic behavior toward the other parent, you could affect your own custody rights.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, April 02, 2015

The circumstances have changed, shouldn’t custody change too?

A recent, non-binding Pennsylvania custody case, H.M. v. J.D. discusses the intersection of changes in circumstances and changes in custody.  In that case, Mother and Father shared legal custody, and Mother had primary physical custody with Father having partial physical custody.  After the initial custody order was entered, Father obtained a new job, which gave him more flexible work hours and more hours available to be with Child.  Father then petitioned for a modification of custody so that he could share physical custody with Mother.

In essence, Father argued that the change in circumstances demanded that there be a change in custody, in particular because he had made pro-active changes which allowed him to be more available to the Child.  However, the court takes the opportunity to emphasize that changes in custody simply do not work that way.  While a change in custody may be appropriate after a change in circumstances has occurred, the change in circumstances alone is not enough to demand a change.  Rather, the court still must make a decision based on the best interests of the child.  When making the best interests decision, the court must analyze the sixteen custody factors that are enumerated in Pennsylvania law.  

In H.M., the appellate court found that the trial court made an appropriate, well-reasoned custody decision based on a thorough analysis of the sixteen factors.  The trial court found that no change in custody should occur, because it was in the child’s best interests to continue the same custody schedule for the sake of stability and continuity.  Furthermore, additional factors supported the trial court’s decision to keep the same custody arrangement in an effort to nurture and protect the child’s best interests.

Ultimately, the main role of the trial court in a custody case is to try to reach a decision that will protect the child’s best interests.  Sometimes that means that the custody arrangement should change when there has been a change in circumstances, but many other times, no change is warranted.  While a change in circumstances may be an impetus for a parent to seek a change in custody, the court may not agree, unless those changed circumstances impact the child’s best interests.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, March 30, 2015

Filing your taxes

Benjamin Franklin once said, “In this world nothing can be said to be certain, except death and taxes.”  In this season of filing taxes, it is important to remember that filing your taxes is a sometimes unpleasant but necessary task.  

If you have not yet filed your taxes for the year or you have lingering past tax issues, go ahead and take action now.  Simply ignoring any lingering issues or problems will only allow those issues (and any associated fines and penalties) to grow and fester.  These problems often are magnified to an even greater extent during a divorce, and it can make an otherwise easy divorce extremely tricky to resolve.  Likewise, if you do not normally participate in the process of filing of your taxes, this is the year to take ownership and make sure you understand the tax return that you are filing, rather than simply allowing your spouse to do it for you.

If you have any questions or already have received notices or communications from the IRS, you should contact a qualified tax attorney and/or accountant to help guide you through your questions.  In conjunction with working with a tax professional, you can reference the IRS Publication 504 for Divorced and Separated Individuals for helpful information regarding filing your taxes.  This handout answers many questions that divorced and separated taxpayers may have.  In particular, it addresses who can claim an exemption for a dependent child, which is a question that frequently arises.  Additionally, a taxpayer can also complete IRS Form 8332, which allows the party that has the right to claim an exemption for a child to waive that right, so that the noncustodial or other party can claim the exemption.  Again, if you have questions, you should contact an accountant or attorney regarding these issues.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, March 26, 2015

Will I be successful on an appeal of a custody order?

In most cases, when a custody order is issued by a trial court and then appealed by a party, the standard of review at the appellate court is an abuse of discretion.  This means that in order for the appellate court to overturn the trial court’s opinion, the appellate court must decide that trial court abused its discretion, in other words reached a conclusion that could not be based on the facts or evidence.  As a recent non-precedential (meaning that other courts are not bound by the decision) Pennsylvania decision, C.A.W. v. M.K. demonstrates, it is extremely difficult to prove an abuse of discretion.

In C.A.W. the parties were involved in extensive litigation regarding custody, and ultimately, the trial court ordered that Mother should have primary physical custody and Father should have partial physical custody.  Mother and Father each made many arguments using the many enumerated statutory custody factors.  The trial court examined the evidence regarding each factor, and explained its decision in the context of each factor.  On appeal, Father argued that the trial court was wrong in its analysis of the factors based on the evidence and testimony.

When an appellate court reviews a case and the standard of review is an abuse of discretion, it is not simply a question of whether the trial court is “wrong.”  Rather, there must have been no way possible for the trial court to reach its opinion based on the evidence.  For example, Father argued that the trial court was wrong in stating that the child expressed a desire for “50/50” custody and that the phrasing used by the child raised concern that the child had been coached.  In reviewing the transcript from the interview with the child, the child did not use that specific phrase.  In short, the trial court made a mistake.  However, the appellate court found that this mistake was a small error and was balanced by the trial court’s overall analysis.  In other words, a small, technical mistake on the part of the trial court may not be enough to overturn an opinion, especially when there are other reasons to support the trial court’s decision.

The appellate court in C.A.W. provides a nice, detailed review of the trial court’s decision, and in the process illustrates what a difficult standard of review abuse of discretion can be.  Before deciding to appeal a decision, litigants should consult attorneys experienced in this area of law to help analyze the likelihood of success on appeal.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, March 23, 2015

What is arbitration?

When a married couple decides to divorce, there are a few different routes that the parties can take to resolve economic issues.  They can reach an agreement and sign a settlement, perhaps on their own, through their attorneys or with the help of mediation.  The parties can use traditional litigation methods and utilize the court system.  Lastly, parties can choose to arbitrate their divorce.  Notably, arbitration is not used to resolve custody issues.

Like traditional litigation, parties who use arbitration are “litigating” their issues, and they usually are not actively working together to reach a solution.  However, unlike traditional litigation, the courts are not involved.  Instead, the parties select and agree to the use of an arbitrator.  The arbitrator is typically a highly experienced and knowledgeable attorney.  By agreeing to arbitration, the parties are in agreement that the neutral, third-party arbitrator is allowed to resolve their pending issues, in lieu of litigating in court.  The decision of an arbitrator is binding in the same way that the decision of a court is binding, and usually, by agreement of the parties, is non-appealable.

When using traditional litigation, there are filing fees for some types of pleadings; however, the parties do not have to pay the court for the judge’s time.  In contrast, the arbitrator is typically paid by the hour, like an attorney.  Therefore, arbitration may not be a feasible option for parties with limited financial resources.  However, there are significant benefits to arbitration.  In many cases, arbitration can actually be less expensive than litigation, even though you must pay the arbitrator.  The efficiency of arbitration often results in significantly less attorney fees.  

Complex cases - where there are many assets and/or debts - sometimes can be drawn out for years in the court system.  This is in part because the court system is so heavily burdened by a large number of cases that most judges simply do not have time to learn the ins and outs of each case.  In contrast, an arbitrator is paid to learn everything about a case through the submissions of the parties.  Therefore, in cases where things are not straight-forward, like where one party owns a small business or where the parties own numerous assets and bank accounts, an arbitrator is often better able to more quickly understand what exactly is happening in a case.

Arbitration can be a great option for parties who want a stream-lined process, where the decision-maker has a great likelihood of understanding the nuances of their case.  If you have questions about arbitration and whether your case would be well-suited for arbitration, you should contact an attorney to discuss your options.

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, March 19, 2015

When will a court impute an earning capacity?

In some cases, it is easy for a court to calculate child and spousal support, because each party earns a steady, predictable income based on appropriate employment.  However, in many cases, it can be debated whether a party should be or could be earning more money through employment.

The recent non-precedential (which means that it is not binding on other courts) Pennsylvania case of Master v. Master does a nice job of both explaining what earning capacity is and providing examples of when a higher earning capacity may be assessed.  Earning capacity is the idea that based on the age, education, health, work experience, training and childcare responsibilities of an individual, that individual may be able to earn an income different than what he or she currently earns, and that the “earning capacity” of the individual should be substituted for his or her actual income when calculating support.

In the Master case, earning capacity was at issue for both Mother and Father.  Mother had a bachelors degree in education, and earned approximately $17,000 per year as a manager at a daycare.  Based on Father’s arguments, the trial court assessed Mother an earning capacity of approximately $42,000 per year, which was what an entry level elementary school teacher could earn.  The appellate court reversed the trial court because there was no evidence in the record that Mother had the necessary work experience to obtain that job, that applicable jobs were available, etc.  In other words, there needed to be some evidence available that Mother actually could obtain the job for which she was being assessed an earning capacity.  Simply saying that she had a degree that might allow her to obtain the job was not enough.

Father was a heavy equipment construction worker, and Mother argued that he should be assessed a higher earning capacity because his income should be calculated at full-time hours at a higher per hour wage.  The appellate court found that this argument failed, because Father presented clear evidence that he, as a union worker, could not work the full-time hours suggested by Mother, because the work simply was not available.  Therefore, even though he was not working full-time, and in theory “should” be working full time, the court found that his work was not amenable to full-time work, and therefore he should not be assessed a higher earning capacity.

Whether a higher earning capacity will be assessed for a party is a highly fact-specific determination.  The court must look at whether the party given his or her age, education, health, work experience, training, childcare responsibilities and potentially other factors should be earning a higher income for the purposes of calculating child support.  If you have questions about earning capacity you should contact an attorney.  In addition to analyzing the likelihood of a higher earning capacity, litigants should perform a cost/benefits analysis on the sought after result.  In other words, even if you prove the higher earning capacity, would it change the support enough to justify the cost of litigation?

Written by Elizabeth A. Bokermann, Esquire, Pennsylvania-licensed associate attorney at The Law Offices of Linda A. Kerns, LLC.