Thursday, December 29, 2011

Oh no, I bought the Amityville Horror House

I have previously written about the importance of performing research before purchasing a property.  I always recommend Googling the address of the property as part of due diligence.  With a simple Google search, you may be able to find out about the crime rates in the area, crimes committed in the particular house and problems in the area that could interfere with your eventual enjoyment of the property.  I specifically wrote about a couple who bought a house that had previously been used as a methamphetamine lab.  Because the chemicals used are extremely toxic and had seeped into the structure of the home, the couple became ill simply by living in the house and had to move out.  However, they were still saddled with the mortgage on a house that they could not use and could not afford to repair.


There are disclosure requirements in Pennsylvania, but the requirements have previously been interpreted by the courts to be limited to a disclosure of material defects.  Last month, the Superior Court of Pennsylvania took a hard line stance when a seller had not disclosed to the buyer that during the previous year a murder/suicide of a husband and wife had occurred in the house.  


In the case of Milliken v. Jacono, et al., the buyer sued the sellers and the real estate agents claiming fraud and misrepresentation, because they had not disclosed that the previous owners had died via an apparent murder and suicide.  The realtors and the sellers defended themselves by arguing that they had consulted with both the Pennsylvania Real Estate Commission and the Pennsylvania Association of Realtors Legal Hot Line regarding their disclosure requirements.  The realtors and sellers believed, after researching the issue and seeking advice, that they had no duty to disclose the house’s sad history.


When the buyer moved in, she apparently learned that the sellers had purchased the home from the Estate of Kostantinos Koumboulis and the Estate of George Koumboulis.  The buyer, apparently upset that she was living in a house where a murder/suicide occurred, sued.  The trial court dismissed the matter by granting a summary judgment.  A summary judgment is a legal mechanism where, without sending the case to a jury, the trial court reviews all of the pleadings and proofs presented and decides that no genuine issue of material fact exists.  Basically, the trial court dismissed the buyer’s lawsuit, because it concluded that failing to disclose that a murder/suicide had taken place on the property was not a significant and material defect.  


The buyer appealed to the Superior Court of Pennsylvania, our appellate court, who reversed the summary judgment issue.  The Court remanded the case back to the trial court so that the issue of whether the murder/suicide was a material defect could be decided by a jury.  


One justice dissented in the case, indicating that he disagreed with his fellow Superior Court Justices in finding that revealing a previous murder/suicide was a necessary part of disclosure.  The dissenting justice, Justice Ford Elliott, noted that this case could be interpreted to demand that sellers must reveal all crimes ever occurring on a property, which would be ludicrous.  Additionally, and significantly in this case, the sellers were one owner removed from the murder/ suicide.  Judge Ford Elliott questioned whether there should be some type of a time limit with regard to this type of disclosure, specifically noting that a murder that happened 100 years ago would certainly not be significant.  The justice also seemed concerned that it was difficult, if not impossible, to put a price tag on the psychological damage to a house where a crime took place.  In other words, it is questionable whether a past crime would actually lower the value of the house.


Whether you agree or disagree with the court’s decision, it does now appear that in Pennsylvania, at least a crime as serious as a murder/suicide occurring in a house, should be reported on a disclosure in a real estate transaction.  However, as the dissenting justice noted, modern home buyers have powerful tools in the form of the internet to uncover these types of red flags with a property.  Had this buyer simply Googled the name of the previous owners, which was certainly available to her prior to closing on the house, she may have discovered the crime.  

Tuesday, December 27, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.




Need to calculate a specific date? Or create a calendar? Try www.timeanddate.com

Saturday, December 24, 2011

Merry Christmas

From all of us at the Law Offices of Linda A. Kerns, LLC

Friday, December 23, 2011

Christmas countdown

We received so many great, imaginative cards this year.  It is so great to hear from colleagues, family and friends, as well as clients, both old and new!

Thursday, December 22, 2011

Let's get married, and if you come to America, I will support you.

U.S. citizens sometimes meet exotic foreigners (or perhaps not so exotic), and, swept away by the prospect of a lifetime of love and happiness, marry in order to start the process of their new love's legal immigration to the United States.  I have personally witnessed this phenomenon.  One friend from law school fell for her Egyptian tour guide during a cruise of the Nile, married him and brought him back to America with her.  They now have two lovely daughters and reside in Chicago.  Another friend, a doctor from Philadelphia, swooned over her tour guide in Costa Rica and after several subsequent trips, married him and brought him to Philadelphia.  Clearly, tour guides provide a certain allure for Americans!  



In my practice, I have encountered much less romantic tales.  I have had cases where people married foreigners that they met over the internet.  Once the person settled in America, the romance quickly faded, and divorce papers were prepared before the ink on the marriage certificate was dry.  However, in addition to dealing with divorce laws, these marriages face the scrutiny of our immigration laws.

Our federal immigration laws dictate that when a U.S. citizen marries a non-citizen in order to facilitate the non-citizen's road to legal residence in the United States, then the U.S. citizen must execute an Affidavit to provide support to the non-citizen.  The U.S. citizen must provide support equal to at least 125% of the Federal Poverty guidelines.  

Each state’s laws dictate that spouses also owe a duty of support to each other.  Accordingly, upon separation, because "I do" also means "I will support you," the spouse who earns less (or nothing at all) has a claim for support against the higher-earning spouse.  Those support claims are governed by state law.  However, citizens, who signed an Affidavit to support their spouse pursuant to immigration law, are also subject to the state’s support requirements.  What happens if the support calculations under state law are different than the support calculations under immigration law?  Does the spouse get both?  Or the higher amount?  Do you go to federal or state court to enforce?  

The Superior Court of Pennsylvania (our appellate court) recently opined on the issue in a case appealed from the Philadelphia Court of Common Pleas.  In this case, James C. Love, a U.S. citizen, married Yvonne, who took his last name and became Yvonne A. Love.  The names are not relevant to the story, just a bit ironic, as any love ever present in this case appears to have given way to years of litigation.  They married on October 29, 2005 and separated in May 2009.  They have been fighting in court ever since.

The parties had a daughter during the marriage, and upon separation, Wife filed a claim for spousal and child support.  In calculating the support, the trial court imputed an earning capacity to Wife.  (Courts use earning capacities in cases where they believe an individual is under-employed or unemployed voluntarily.  This is a remedy that attempts to achieve fairness so that one spouse does not bear the entire financial burden, while the other spouse refuses to work to their full capacity).  

In this case, the support amount calculated by the Philadelphia court was less than the amount Wife calculated she would have received pursuant to the Affidavit of Support signed by her Husband under immigration law.  Simply put, the state support order, as entered, was less than 125% of the Federal Poverty Guidelines.  The trial court, however, opined that Wife had a duty to work and contribute to her own support.  The trial court further reasoned that if she worked a minimum wage job for 30 hours per week, combined with Husband's support, she would actually have much more than 125% of the Federal Poverty Guidelines available to her.

On appeal, the Pennsylvania Superior Court ruled that the trial court should have deviated from the guideline support amount and calculated a support award that constituted at least 125% of the Federal Poverty Guidelines.  Accordingly, the trial court should have enforced the federal immigration law.

One Superior Court justice dissented, opining that the trial court was correct and if Wife wanted to enforce the Affidavit then she needed to institute a separate action under federal law.

 This case provides valuable guidance for situations where immigration and family law intersect.  If a spouse signed an Affidavit under immigration law, agreeing to provide support at 125% of the Federal Poverty Guidelines, then he or she should be prepared to pay at least that amount in support, even if calculations under Pennsylvania support laws would allow a lower amount.  

To read the entire opinion in Yvonne A. Love v. James C. Love, click here.

Tuesday, December 20, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.



Try http://www.mint.com/ for some great tools to manage your finances, set budgets and get your money under control.

Friday, December 16, 2011

Our Christmas Card Image This Year: 2011

Each year we combine a Photograph of the Philly Love Statue with iconic Philadelphia images.  This year, we chose the plus sculpture, located in the Sculpture Garden at the Philadelphia Art Museum.  Our message this year:  Plugged into love . . . .








Here are some of our images from previous years:


Love outweighs all





You never know where you will find love.







Believe in Love












Dominic Episcopo shoots our images for us.  Visit his website:  episcopo.com

We already have our image for 2012 picked out!  Have ideas for future years?  Let us know.

Wednesday, December 14, 2011

New Jersey Child Support - Where do I start?

The New Jersey Child Support website provides information, resources, forms and answers to frequently asked questions.  Find the website at <www.njchildsupport.org>.

New Jersey Courts base child support orders on the New Jersey Child Support Guidelines.  Your first step should be to gather as much income information as possible for both parents. This includes tax returns and paystubs as well as Profit and Loss statements and Corporate Tax Returns for self-employed individuals.

Certain expenses may be relevant to a child support calculation, including: daycare or babysitting, summer camp, health insurance, medical expenses, extraordinary costs and tuition, if applicable.  Gather as many receipts and documentation as possible as prove these expenses.

Your custodial arrangement may also influence support.  If you do not have a custody order in effect, or you do not regularly follow it, you should keep a calendar or log of all of your time with your children.

Read this helpful article for more information:  The Eight Major Steps in Calculating Child Support in New Jersey.

Unless parties otherwise agree, child support is paid through the New Jersey Family Support Payment Center (NJFSPC).  The Payor parent is either wage attached or, if self-employed or otherwise does not have wages, then he or she pays NJFSPC directly.  The parent receives support either by having the funds placed directly on a debit card or by direct deposit.

While we have guidelines, rules, statutes and caselaw, each particular family possesses their own unique set of circumstances that can affect a child support calculation.  Please contact our office for a consultation specifically designed for your situation.

Tuesday, December 13, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.



If this is your first holiday season after a separation or divorce, it is certainly understandable if you are anxious or unexcited by the rapidly approaching holidays. Yes, this year will be different, but try to establish new traditions that create happiness and joy for you and your family as you move forward with your new life

Thursday, December 08, 2011

New Jersey Cost-of-Living Adjustments to Support

In New Jersey, the law requires that all child support orders issued after September 1, 1998 be adjusted to reflect the increase in cost-of-living every two years.  In essence, the cost-of-living adjustment is calculated by reviewing the Consumer Price Index in New Jersey during the two year period.  If there is a statistical percentage increase in the cost-of-living, then the increase would be applied to the child support order.  Before applying the increase to the child support order, the paying party must receive notice of the increase so that he or she has the opportunity to object.  The payor must file an objection to the increase within thirty days of receiving the notice.

One reason that New Jersey allows the payor to object to the increase is if his or her income did not increase at least as much as the cost-of-living increase.  In other words, if the payor’s income only increased 2% during the two year period, but the cost-of-living increase was 2.5%, then the payor would have grounds to object to the increase in child support.  On the other hand, if the payor’s income increased 2.5% or more, then the payor could not use these grounds to object.

If the payor timely objects within thirty days to the notice of increase, then the Probation Department makes a determination whether the increase is warranted.  Then either party, if unhappy with the decision, can appeal.  That initial appeal is heard by a hearing officer.  Any party dissatisfied with the hearing officer’s decision can appeal and receive a hearing with the Family Part.  The hearing in front of the Family Part is heard de novo, which means that the judge looks at all the facts anew and must make certain factual determinations.

In a September 2011 New Jersey Superior Court case, Savini v. Triestman, the Court held that as part of the de novo hearing in the Family Part, a judge must make the following findings of fact:
1.                  the amount of the payor’s income at the time of the initial child support order or the last cost-of-living adjustment,
2.                  the amount of the payor’s income during the interim years, and
3.                  if the payor’s income increased, whether the increase was equal to or greater than the calculated cost-of-living adjustment based on the Consumer Price Index.

In order to make this decision, the judge must weigh the facts as presented by the parties.  It is the payor’s burden to prove that his or her income has not increased as much as the cost-of-living adjustment.  In short, because the payor does not want an increase in his or her child support obligation, the payor must prove that his or her income has not increased.

If you currently pay child support in New Jersey, it is important for you to keep all of your income information, especially if you believe that your income may not increase as much as the state’s cost-of-living adjustment.  When you receive a notice of increase, you should be prepared to act quickly.  If you do not object within thirty days, you likely will lose your ability to object to the increase.  If you are receiving child support and do not believe the amount has been appropriately adjusted, you may need to file a petition with the court.  Therefore, you should immediately contact an attorney to advise you.  

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

Tuesday, December 06, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


Change your passwords!


Hackers often simply attempt some of the passwords from this list of 25 of the most common passwords.  If you use any of those -- change them immediately!