Monday, December 31, 2012

Happy New Year!

All the best in 2013!

Saturday, December 29, 2012

Inspiration on a Saturday

"There are lots of people who mistake their imagination for their memory."

- Josh Billings

Thursday, December 27, 2012

In New Jersey, is trust income “income” for the purposes of support?

In New Jersey, the income that is received from a trust cannot be used to calculate alimony and child support payments.

In a 2011 case, Tannen v. Tannen, Wife’s parents set up an irrevocable trust with Wife as the sole beneficiary and Wife and Wife’s parents as co-trustees. The trust instrument did not require mandatory payments. Rather, the trustees had discretion. Thus, Wife, as only a co-trustee, could not demand funds from the trust as she chose. The assets of the trust included the mortgage-free home where Wife and Husband lived, commercial property and over $1 million in stocks and mutual funds. During the marriage, the trust also paid the annual real estate taxes on the marital home, paid the cost of private school for the children for two years, and generated $124,000.00 in income each year.

The trial court held that income from the trust should be treated as income to Wife for the purpose of determining how much alimony Husband would be required to pay to Wife. The trial court went so far as to order the trust to make monthly payments to Wife.

The appellate court disagreed with the trial court and reversed saying Wife’s interest in the trust was not an asset that she held. The appellate court decision turned on whether Wife could control the ability to “tap the income source,” which in this case, she could not. Therefore, the appellate court found that the trial court improperly imputed income to Wife from the trust when it determined the alimony and child support that Husband was required to pay.

The goal of an alimony award is to assist the supported spouse in maintaining a lifestyle that is reasonably similar to the one the supported spouse had during the marriage.

For the purposes of determining alimony and child support, the appellate court instructed the trial court to take into consideration past payments made by the trust when determining Wife’s actual needs. Failing to take these past payments made by the trust into account would be entirely unfair to Husband. The appellate court remanded this issue back to the trial court to determine the support Wife was entitled to from Husband, specifically noting that the trial court cannot ignore the benefits Wife receives from the trust that cover her actual needs.

The appellate court further found the trial court improperly determined the amount of child support Husband was required to pay. When determining child support, courts cannot overlook the provision of the guidelines which says the “fact that a family does not incur a specific expense in a consumption category is not a basis for a deviation from the Child Support Guidelines” (emphasis added). The trial court should not have deviated from the Guidelines simply because the mortgage and real estate taxes were paid by the trust, because Wife still incurred other “housing” category expenses. Thus, the appellate court remanded for reconsideration.

When assets are placed in a discretionary trust, under New Jersey law, the income generated will not be used in an alimony calculation. Even though the trust money was not available for the purpose of determining income, the courts will take into consideration how much that money has supported the spouse receiving it in the past. In short, when calculating support, the court will not adjust the trust beneficiary’s actual income to include the trust income. Instead, the court will subjectively consider how receiving the trust income affects the recipients’ life.

If you have questions concerning a trust account and how that would impact your divorce or support payments, you should contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Linda A. Kerns, Esquire.

Monday, December 24, 2012

Merry Christmas!

Hope Santa is good to you!

Sunday, December 23, 2012

Termination of Parental Rights

Courts sometimes must decide, in order to protect a child, that a parent’s rights be terminated. In the 2012 Pennsylvania Superior Court appeal, In the Interest of K.M., Mother appealed from a December 2011 order where the Orphans’ Court terminated her parental rights to her minor son pursuant to the Adoption Act 23 Pa.C.S. §2511(a)(8) and (b). In the Interest of K.M., 53 A.3d 781 (2012). The minor child was born in June 2009. A hearing was held in May 2011 with respect to the termination of Father’s parental rights. After additional hearings and testimony, both Mother and Father’s parental rights were terminated.

The child had been in foster care placement since his birth, when he had drugs in his system and the Mother tested positive for marijuana. After being released from the Intensive Care Unit, in August 2009, the child entered foster care because, in addition to the drug issues, Mother had parenting deficits, unstable housing, and mental health issues. The child was placed in foster care because Mother tested positive for cannabinoids when the child was born, and Mother had parenting deficits, unstable housing, and mental health issues. 

Following the child’s placement, the juvenile court ordered the then-seventeen-year-old Mother to complete parenting classes, drug and alcohol treatment, mental health services, and maintain safe and stable housing. Mother initially complied, but, in the summer of 2010, she failed to abide by the rules that Luzerne County Children and Youth Services (“CYS”) had established. As Mother was still a child herself, her non-compliance does not necessarily shock.

Based on Mother’s behavior over the summer of 2010, CYS obtained an August 2010 court order that permitted CYS to suspend all visitations with Mother for safety reasons. Mother did not have any contact with her son after July 2010, even though she could have petitioned to have her visitation reinstated. In March 2011, CYS filed a petition to involuntarily terminate Mother’s parental rights pursuant to provisions of the Adoption Act. After three days of testimony, the Orphans’ Court terminated Mother’s parental rights under the provisions of the Adoption Act because the child had been removed from the care of the parent for twelve months and the conditions, which led to the removal of the child, continued.

The Superior Court reviewed the order terminating parental rights according to the standard set forth in In re S.H., 879 A.2d 802, 805. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the termination will be upheld. When the court has granted a petition to involuntarily terminate parental rights, the reviewing court must review the entire record in order to determine whether the trial court’s decision was supported by the evidence. The burden is on the petitioner, in this case CYS, to prove by clear and convincing evidence that the grounds for seeking termination of parental rights were valid.

Mother argued that CYS did not prove by clear and convincing evidence the statutory grounds to terminate her parental rights under the Adoption Act. To terminate parental rights under the Adoption Act, CYS must have demonstrated that: (1) the child had been removed from Mother’s care for at least twelve months, (2) conditions which led to the removal or placement of the child continue to exist, and (3) involuntary termination of parental rights would best serve the child’s needs and welfare. The record supported the first requirement because the child had been removed from Mother for at least twelve months. The second and third requirements were also met because the record supported the fact that the conditions leading to the child’s removal continued to exist and involuntary termination of Mother’s parental rights would best serve the child’s needs and welfare.

If you have questions regarding the termination of parental rights or adoption of a child, you should contact an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Merry Christmas

Each year on our firm's Christmas card, we combine Philly's LOVE statue with a scene from around town.  Here is our image from this year:

Paint the town with LOVE!

Dominic Episcopo takes our photographs.  This year we combined the LOVE statue with the Paintbrush sculpture located on North Broad Street in front of the Pennsylvania Academy of Fine Arts.

Merry Christmas & Happy New Year!

Saturday, December 22, 2012

Inspiration on a Saturday

"All your dreams come true, if you have the courage to pursue them."

 - Walt Disney

Thursday, December 20, 2012

A reminder about personal injury awards as marital property in Pennsylvania

If a spouse is injured and subsequently sues and receives a legal settlement or judgment, is the resulting monetary award marital property in Pennsylvania?  The Supreme Court of Pennsylvania weighed in on this issue last year.

In the case of Focht v. Focht, decided November 23, 2011 by the Supreme Court of Pennsylvania, Husband sustained an injury at the Family Grand Prix Raceway.  He and his then-wife retained an attorney and filed a lawsuit.  However, the parties separated prior to the settlement of the personal injury case.  As part of the personal injury claim, Wife had also filed a loss of consortium action, which means that she sought compensation for how the accident affected her and her relationship with Husband.  Accordingly, both Husband and Wife were plaintiffs in the lawsuit.

When the case finally settled, Husband received approximately $231,000.00 and Wife received approximately $14,000.00 for her part of the claim.  However, the parties received these monies well after they separated.  Therefore, the question arises whether the settlement proceeds are “non-marital.”

In its analysis, the court quoted Pennsylvania’s equitable distribution statute:

[M]arital property does not include . . . any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation, regardless of when the payment was received.

Accordingly, the result in the case hinges on the interpretation of the word, “accrued.”

The Pennsylvania Supreme Court held that because the cause of action accrued during the marriage and before the parties separated, the lawsuit settlement proceeds were marital property, even though the parties received the funds well after the date of separation.

Unfortunately, in this case it appears that Husband spent almost the entire settlement.  He purchased a home, then took a mortgage against it.  Subsequently, the bank foreclosed upon the home.  By the time this case wound its way through the system, Husband had very little money left.

If you or your spouse have a lawsuit pending (or a cause of action to file a lawsuit), consult with an attorney so that you can preserve your rights during equitable distribution, which could potentially mean freezing the proceeds.

Tuesday, December 18, 2012

Helpful Tip Tuesday

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

In certain circumstances, communications between spouses are protected by the marital privilege.  However, as with virtual every aspect of law, there are exceptions and exclusions.  Recently, the Fourth Circuit found that emails sent by a husband to his wife on a work email account were not privileged.  Read about the case here.

Monday, December 17, 2012

Do not let this happen to you!

The ex-wife of a man in Oklahoma stole over $42,000 from his retirement account from a long ago employer.  After he had moved out, a letter arrived at his former residence, still occupied by his ex-wife, with an explanation of how to use the plan's new online account procedure.  The ex-wife followed the instructions and drained the account.  The man did not find out until the next year when he received the tax forms.

The court found that the action by the wife was not the fault of the plan, and therefore the plan was not required to reimburse him.  He most likely has an action against his ex-wife - he could sue her in family court or report it to the prosecutor to see if the funds can be recovered.  Avoid the headache, however, by making sure you change your address on all accounts --- even those from long ago.  Change your passwords and usernames - and even the "clues" such as the town you were born - to make it more difficult for an ex-spouse to wreak havoc on your online financial life.  

Do not let your money walk away.

Saturday, December 15, 2012

Inspiration on a Saturday

"Anyone who has never made a mistake has never tried anything new."

- Albert Einstein

Friday, December 14, 2012

Our Christmas Card This Year

Every year, the Law Offices of Linda A. Kerns, LLC, sends out a Christmas card which incorporates Philly's own LOVE statue with another iconic Philadelphia image.

This year, we used the Paintbrush Sculpture on North Broad Street.  Our message:
Paint the town with LOVE!

Our photographs are courtesy of Dominic Episcopo ( You can view some of our previous Christmas cards here.

Merry Christmas, Happy Holidays & Happy New Year!

Thursday, December 13, 2012

Too little, too late to claim alimony and child support

Provisions in a final judgment of divorce will not always stand the test of time. In the New Jersey case, Pack v. Beckerman, 2012 WL 3930384, the judge held exactly that. The parties married in 1966 and had two children. In 1973, Husband abandoned Wife and the two children, and in 1974 Wife obtained a Judgment of Divorce by default. The trial judge awarded her all the marital assets, and the final judgment of divorce stated that she would not be precluded from seeking alimony or child support at a later date. Wife claimed that she thought Husband had left the country, and he was not located until 2010 when the parties’ son located Husband through an internet search.

In February 2011, Wife filed a motion for spousal and child support based upon the terms in the final judgment of divorce. In March 2011, the trial judge awarded Wife alimony for the years after Husband left until Wife remarried and awarded child support. Husband filed a motion for reconsideration in May 2011. The judge granted Husband’s motion based upon the doctrine of laches.

The doctrine of laches is the failure to assert a known right within a reasonable time which causes prejudice to the opposing side. In determining whether to apply laches, key factors are used, including length of delay, reasons for delay, and change of position by either party during the delay. A delay alone will not be sufficient, and the court must balance all the factors to determine whether or not to apply the doctrine of laches.

In finding the doctrine of laches applied to the case, the judge reasoned that for thirty-seven years Wife had not sought any type of support from Husband. At the present, it would be impossible for the court to determine the standard of living at the time of divorce.

Furthermore, Wife presented no evidence that she had been looking for Husband during the years he was gone. During that time, Wife did not press the court to enter any awards for child support or alimony. The judge found the delay was much too long to allow Wife to succeed on her motion. Wife was seeking to apply for alimony and child support, not ask for the enforcement of a previous award; thus, aggravating the prejudicial impact of the delay. Too much time has passed to gather reliable financial information to demonstrate an appropriate amount of alimony or child support. Therefore, an award of support would likely be prejudicial to Husband.

If you have questions about a final judgment of divorce, you should contact an attorney.

Written by Allyson Lutley, law clerk at Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Tuesday, December 11, 2012

Helpful Tip Tuesday

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

Are you dividing a pension or retirement plan in your divorce?  You will most likely need a Qualified Domestic Relations Order (QDRO).  These documents are complex and poorly drafted QDROs can cost you a significant amount of lost funds, especially if care is not taken on every detail.  Learn the FAQs about QDRO before it is time for your attorney to draft one so you are ready with questions.  Read more here.

Sunday, December 09, 2012

Happy Holidays!

Out-of-State Action for Divorce, In-State Action for Custody

When parties litigate legal action in two separate jurisdictions, the proceedings can be complicated and expensive. In October 2012, the Pennsylvania Superior Court decided a case dealing with pending custody actions. Mother filed her custody action in Pennsylvania and Father filed his custody action in New Jersey. M.E.V. v. R.D.V., 2012 WL 5205618. Mother and Father were married in September 2005 and had two children together. In May 2011, Mother found out Father was having an affair and relocated with the children from their New Jersey residence to be with family in Erie, Pennsylvania in June 2011. In November 2011, Father filed a Complaint for Divorce in New Jersey, which stated that the children’s home was New Jersey and that the children should be returned to New Jersey so that the parties could exercise joint legal custody. Mother was served with Father’s Complaint on December 28, 2011.

On January 13, 2012, Mother filed a Complaint for Custody in the Court of Common Pleas of Erie County, Pennsylvania. Father filed Preliminary Objections to Mother’s filing, asserting that a prior custody matter had been filed by him in New Jersey and that Mother was aware of his filing. Father asserted that venue was improper in Erie County and that the matter should be heard in New Jersey. 

On March 20, 2012, the trial court in Erie County held a hearing on the matter. The trial court denied Father’s preliminary objections regarding venue. Father appealed and raised the issue of whether the trial court erred in concluding that Pennsylvania, and not New Jersey, was the children’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §§5401-5482.

Before ruling on the issue that Father raised, the Superior Court considered whether Pennsylvania had subject matter jurisdiction to determine the issue of whether it had jurisdiction. Any party or the court sua sponte (on its own) can raise the question of subject matter jurisdiction at any time. The Superior Court noted that the UCCJEA was enacted to help avoid jurisdictional conflicts, as well as to promote cooperation between interested jurisdictions. A trial court cannot exercise jurisdiction over a case when another state has jurisdiction priority. If the trial court determines that a child custody proceeding has begun in the court system of another state, then that trial court should put its case on hold and communicate with the other court to determine which court is the more appropriate forum. 23 Pa.C.S. §5426.

Without explaining its reasoning, the trial court concluded that Father did not initiate a custody action under the UCCJEA, because there were no custody proceedings scheduled or pending. The only action pending in New Jersey was Father’s Complaint for Divorce. The Pennsylvania appellate court found that the trial court abused its discretion in making that decision because Father’s Complaint for Divorce included a custody count. The trial court determined that Father did not have a custody proceeding pending in New Jersey and only had a divorce proceeding pending. However, under the statute, a child custody proceeding includes proceedings for divorce. 23 Pa.C.S. §5402. The Pennsylvania trial court should have put its proceeding on hold and checked with the New Jersey court before allowing Mother’s complaint to proceed in Pennsylvania.

The Pennsylvania appellate court also found that the trial court further abused its discretion by determining that Pennsylvania was the children’s home state for the purposes of making a custody determination. The UCCJEA defines home state as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. 23 Pa.C.S. §5421(a)(1). The trial court determined that the children resided in Pennsylvania, despite Mother’s testimony during the trial that showed that the Mother’s move was on a temporary basis and that Mother and Father would reevaluate in six months. Therefore, the Appellate Court concluded that Pennsylvania did not have jurisdiction over the children.

In summary, the Pennsylvania appellate court found that Pennsylvania did not have jurisdiction because Father had already instituted a custody action in New Jersey and because Pennsylvania was not the children’s “home state.”

If you have questions concerning child custody and where you should commence proceedings, you should contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Saturday, December 08, 2012

Inspiration on a Saturday

"If you wouldn't write it and sign it, don't say it."

- Earl Wilson

Thursday, December 06, 2012

Understanding a New Jersey court’s analysis when awarding parenting time

An award for more custody time to one parent over the other does not necessarily mean that the parent with less custody time should have less importance in the child’s life. A court may award one parent primary custody because it may be easier for the child to have one “home-base” in order to provide stability. However, if both parents demonstrate a willingness and desire to spend as much time as possible with the child, a court could find that a shared custody situation is best, even if it means back and forth for the child.

In New Jersey, when deciding custody matters for a minor child, the pivotal factor and top priority of the courts is ensuring the happiness and welfare of the child. The court’s assessment of the child’s best interest is directly related to how much time he or she will spend with the non-custodial parent. In determining custody, the court’s goal is to develop a reasonable parenting-time schedule that supports the best interests of the child, as well as protects the parent’s constitutional right to enjoy a relationship with their child.

In J.M. v. J.R., Mother appealed the trial court’s order that expanded Father’s parenting time and established a holiday schedule. She also argued that the trial judge gave no decision regarding her request to enroll their daughter in extra preschool time. J.M. v. J.R., 2012 WL 1556387.

A trial court’s decision on custody and visitation rights is rarely reversed, because the decision can only be reversed when there is an abuse of discretion by the judge. In child custody matters involving minor children, the most important factor and consideration is the happiness and welfare of the child, and judges have a significant amount of discretion when analyzing the facts, because the judges see the parties and assess their credibility first-hand.

Tied into the happiness and welfare of the children are the visitation rights for the non-custodial parent. When fashioning a custody arrangement, the goal is to create a reasonable parenting time schedule consistent with the rights of the parent and the best interests of the child. The only time that parental rights will not be enforced is if a parent’s time with the child will negatively impact the welfare of the child. 

In J.M., the appellate court did not second-guess the trial court’s decision to expand Father’s parenting time or the establishment of a holiday schedule. When analyzing the evidence regarding the best interests of the child, the appellate court found that there was ample evidence in the trial court record that Father had a great relationship with his daughter, even though his relationship with Mother was troubled. Additionally, the appellate court said that they would not reverse the trial court’s decision to impose its own holiday schedule on the parents because they could not come to an agreement on one together.

With respect to Mother’s request for their daughter to have additional preschooling, the appellate court reasoned that the trial judge denied that request because it would reduce Father’s parenting time and increase his child support costs. Furthermore, at the time of the appellate court’s opinion, there were only four months until the daughter would enter kindergarten; thus, there was no need to remand for further consideration on dad’s financial abilities.

Changes in parenting time and visitation rights can occur as the child gets older. If you have questions about your current custody arrangement be sure to contact an attorney.

Written by Allyson Lutley, law clerk to Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Tuesday, December 04, 2012

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 you share custody of your children, solidify your holiday plans now so that there are no misunderstandings.  Confirm pick up and drop off times as well as the children's winter vacation schedule.

Saturday, December 01, 2012

Inspiration on a Saturday

"Words, once they are printed, have a life of their own." 

- Carol Burnett