Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
46
Pennsylvania Family Lawyer
By Helen E. Casale
In order to prepare to write
this update, I went back and took
a look at my notes from when
I was elected as the incoming
treasurer of the Secon, a mere
ve years ago. I wanted to see
what I thought I wanted to accom-
plish. Right from the start, I knew
I wanted to improve this Secon
in so many ways. I really wanted
to appeal to the family lawyer just
starng out in his pracce. I wanted to be able to show
that new lawyer what the PBA Family Law Secon can de-
liver to make his pracce even beer. I think the Secon,
as a whole, accomplished this task.
Throughout this year, I wanted our Execuve Com-
miee to be more visible. I sent out periodic video
messages to update our Secon members as to what
our Secon was working on. I realized that some of our
members could not simply rely on the two in-person
meengs per year to gain this insight. In addion, during
the in-person meengs, I changed the business meeng
to Saturday instead of Sunday to make it more conve-
nient for our in-person aendees to nd out what Council
was deciding and doing. Also, our 2020-2021 Chair Dave
Schanbacher, put the wheels in moon for the Law in the
Family podcast. We had many episodes premier this year
on a variety of family law topics that reached members
across the commonwealth. And, of course, our Family
Lawyer commiee chairs, Elizabeth Fineman and Judy
Springer, connued to roll out our quarterly newsleer.
They worked diligently to recruit a number of contribu-
tors to author arcles and case law updates. This is not
an easy task. Eding this newsleer is very me consum-
ing. However, I truly believe it is one of the most valuable
deliverables we have for our members.
We worked hard to develop programming for the
Winter and Summer meengs with topics to appeal to
many dierent family lawyers including adopon, depen-
dency, complex nancial issues and mental health issues.
The Health and Wellness Commiee reached out to all
of our members to gain a
beer understanding of
what family lawyers needed
to strike a balance in their
pracce and home lives. We
are also hoping that going
into the 2022-2023 PBA
year we will be able to coor-
dinate regional dinners with
judges as guest speakers in
counes such as Dauphin,
Westmoreland and perhaps
Erie and Lackawanna. We
want to add counes to
that list to connue this
reach out to our members
that do not reside in the
Pisburgh or Philadelphia
area. I recognize Pennsylvania is a commonwealth made
up of small, medium and large counes with a plethora
of family law aorneys that see many dierent issues and
circumstances. Understanding the dierences in all of
these pracces helps all of us become beer family law
aorneys overall.
Of course, my most ambious project was the making
and producing of a video to help parents, judges, court
sta and family law praconers beer understand what
needs to occur during custody exchanges for children and
demonstrate dierent ways of communicaon between
parents. Our Video Task Force took this project on with
gusto and I am so proud to say we are ready to preview
it for everyone at the Summer Meeng in Newport. It
will also be available online. As I have stated previously,
this video would have never come to fruion without the
hard work of our Task Force chairs, Carolyn Zack, Chris-
na DeMaeo, Kelley Fazzini and Colleen Norcross.
While I do recognize that a large cross secon of our
members do not aend the in-person meengs, I am
hoping some will make an excepon this year. We will be
in Newport, Rhode Island, for the rst me ever. As this
pandemic connues, it seems as though people are trying
to get back to “normal” and we certainly hope to see this
in our aendance at the Summer Meeng and get back
Table of Contents
From the Editors ........................47
Law in the Family Blog ............. 48
Articles ....................................... 50
Federal/Military Corner ............ 57
Technology Corner .................... 60
Legislative Update ....................61
Rules Update ............................. 63
ADR Corner ................................ 63
Case Notes ................................. 67
Bar Review .................................74
Get to Know a Member .............75
Volume 44, Issue No. 2
From the Chair
Helen E. Casale
connued on page 49
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
47
By Elizabeth J. Fineman and Judy M. Springer
With temperatures and expenses rising, we hope that
this issue nds you well and looking forward to summer
acvies and perhaps summer vacaon.
This issue of the Pennsylvania Family Lawyer begins with
Helen Casale’s nal From the Chair column. We thank
Helen for her contribuons to and support of the Penn-
sylvania Family Lawyer this year. On behalf of the Family
Law Secon, we also thank her for her leadership of the
secon. Helen took the brave step of resuming in-person
meengs for the secon, with an eye toward keeping
secon members and families safe.
In this issue, you will once again nd columns for the Mil-
itary, Technology, Legislave, Rules, Alternave Dispute
Resoluon and secon news. This issue also contains ar-
cles on service of process in parental terminaon cases,
parental alienaon, and paron acons for unmarried
couples. In line with Helen’s theme of wellness for aor-
neys which she has focused on during her term, you will
also nd an arcle about pung yourself rst somemes.
Be sure to read the Case Notes secon, which contains
an unusually high number of cases to consider in your
pracce.
The meeng next month should provide lots of opportu-
nies to reconnect and recharge in the beauful seng
of Newport, Rhode Island. We hope that you are able to
aend and take advantage of all that the meeng plans
to oer.
Keep sending in submissions and ideas for us. If you have
any arcles or even conal stories or other literary
pieces you would like to share, please pass them along
to us. Please also connue subming all of your news
and updates to Adam Tanker. We hope that you have a
healthy and fun summer!
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 government and law from
Lafayette College and earned both a Juris Doctor and LL.M.
in taxation from Temple University Beasley School of Law.
eneman@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 interna-
tional custody section in the Custody Law Practice and
Procedure book published by PBI and has written and lec-
tured numerous times regarding family law issues. She is
a graduate of Virginia Tech and Villanova Law School.
215-790-0100
From the Editors
Stay Connected
• Follow us on Twitter @pabarassn
• Like us on Facebook @pabarassn
• Connect with us on LinkedIn
Stay Informed
www.pabar.org
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
48
Pennsylvania Family Lawyer
Editors-In-Chief ....................................Elizabeth J. Fineman, Judy McInre Springer
Editorial Board .....................................Mark R. Ashton, Julie A. Auerbach, Meredith Brennan, Adam Tanker
Contributors .........................................Joel Bernbaum, Daniel J. Bell-Jacobs, Joel Fishman, Rochelle “Shelly”
Grossman, Anthony Hoover, Yvonne Hursh, Kate O’Connor, Mark Sullivan, Alicia Slade, Carolyn Zack
Founder/Former Editor-in-Chief ..........Jack A. Rounick (Vol. 1-7)
Former Editors-in-Chief........................Judge Emanuel A. Bern (Vol. 8-17), David S. Pollock (Vol. 18-40)
Authors’ submission due dates: fall issue — Sept. 1; winter issue — Nov. 1; spring 2023 issue — March 1;
summer 2023 issue — May 1
Family Law Secon Execuve Board
Chair ...................................... Helen E. Casale
Chair-elect .............................. Darren J. Holst
First Vice Chair ....................... Hillary J. Moonay
Immediate Past Chair ............. David C. Schanbacher
Second Vice Chair ...................... Melissa M. Boyd
Secretary ................................... Gerald L. Shoemaker
Treasurer ................................... Candice L. Komar
By Anthony Hoover and Aaron Weems
The Pennsylvania Bar Associaon Family Law Sec-
on recently released a new podcast on September 30,
2021, tled “Law in the Family” to serve as a plaorm for
discussing interesng and emerging issues in the law, as
well as events within the PBA Family Law Secon. Though
a family law-oriented podcast, the topics will oen delve
into other areas of law and commerce as we interview
a variety of people from diverse professions and view-
points.
The podcast is hosted by Anthony Hoover of Levin
Hoover Family Law Firm and Aaron Weems of Fox Roth-
schild LLP with episodes available on iTunes, Spofy
and Anchor. Several episodes have been released with
more in producon on topics such as parental alienaon,
cryptocurrency, medicinal marijuana and building a law
pracce. The podcast is intended to be a way to con-
nect with Secon members, and we hope to connue to
expand our reach into other topic areas you would like to
hear about.
Each issue of the Family Lawyer will include a list of
the episodes released since the prior issue with a link to
all episodes. Two more episodes have since been re-
leased since the spring issue:
Episode 13 – Arbitraon in Family Law Cases with
Shelly Grossman and Carolyn Zack
Episode 14 – Dealing with Repeat Custody Filings and
Frivolous Peons with Skip Persick
Click on the link to listen to these and every episode
of Law in the Family!
Anthony M. Hoover is a founding member of the Levin
Hoover Family Law Firm. Anthony is a prior adjunct
professor of family law, prior chair of the PBA Family
Law Secon Rules Commiee, prior member of the PBA
Family Law Secon Programming Commiee, a co-host
of the PBA Law in the Familiy prodcast, and regularly
writes and speaks regarding complex family law topics.
He can be reached at Anthony@LevinHooverLaw.com or
(717) 888-9952.
Aaron D. Weems is a ligaon partner in Fox Rothschild’s
Family Law pracce group and based in the rm’s Blue
Bell, Montgomery County oce. Aaron is involved in a va-
riety of local and state bar associaon acvies, including
serving as a chair of the Montgomery County Bar Asso-
ciaon Family Law Secon, Council for the PBA Family
Law Secon, and on PBA’s Family Law Secon Execuve
Commiee. Aaron is a Villanova University and Villanova
University School of Law graduate. He can be reached at
(610) 397-7989 or AW[email protected].
Law In the Family Blog
Listen to Law in the Family Podcast
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
49
From the Chair
connued from page 46
From the Chair
to “full capacity” for our registraon. Program Chairs
Lauren Sorrenno and Julie Colton have developed an
amazing line up of programming for the weekend. We
will be touching on Constuonal issues, gender identy
issues, ART and adopon issues, issues we confront in our
pracce on businesses and how the new support guide-
lines are impacng our pracce now that we have seen
them in play since January — and that’s all just on Friday!
On Saturday, we will have Bill Eddy from the High Conict
Instute as our plenary speaker immediately followed by
the preview of our parenng video and a round table dis-
cussion with some of our actors. On Sunday, the case law
updates are back with a great group of young speakers
moderated by the unappable Elizabeth Early in a repeat
performance.
We have all experienced so much change and turmoil
over the last two years. No one could have ever imag-
ined we would be locked up in our homes for so long and
afraid to come out to go to the grocery store, school, gym
or oce. It really showed us what is important in our lives
– our families and friends. We found new ways to con-
nect with one another and, now that we are transioning
back to our “old ways” I think we are doing it in a more
thoughul manner. We have seen our country so divid-
ed and watched (especially over these last few months)
violence escalate around us. I truly believe, however, that
things will get beer. I believe this is true for the Family
Law Secon as well. Each year, we get beer and beer.
With this new slate of ocers coming in for the 2022-
2023 PBA year, I am condent that we have so much to
look forward to on the horizon. What we do is not easy.
We have seen so many people “broken” over the years
and even more so now. My pracce is full of adults and
children suering through mental health crises. It creates
a challenge for all of us as family law praconers. We
are stronger though if we stand together. I want you to
use the Family Law Secon to make yourself an even bet-
ter lawyer so we can help those that cannot see that light
at the end of the tunnel.
Helen E. Casale is a shareholder with Hangley Aronchick
Segal Pudlin & Schiller in Norristown; chair of the PBA
Family Law Secon; Fellow of the American Academy of
Matrimonial Lawyers; co-chair of the Membership and
Markeng Commiee for the American Bar Associaon,
Secon of Ligaon. She is a current member of the
Montgomery Bar Associaon and its Family Law Secon
as well as the New Jersey State Bar Associaon and its
Familiy Law Secon. She is admied to pracce in Penn-
sylvania and New Jersey.
Upcoming PBA Family Law Section Meetings
PBA Family Law Secon Summer Meeng
July 14-17, 2022
Newport Marrio, Newport, RI
PBA Family Law Secon Winter Meeng
January 13-15, 2023
The Hotel Hershey, Hershey, PA
PBA Family Law Secon Summer Meeng
July 13-16, 2023
The Sagamore Resort on Lake George, Bolton Landing, NY
PBA Family Law Secon Winter Meeng
January 10-14, 2024
Charleston Place, A Belmond Hotel, Charleston, SC
PBA Family Law Secon Summer Meeng
July 10-14, 2024
Hya Regency Chesapeake Bay, Cambridge, MD
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
50
By James W. Cushing
This March 15, 2022, arcle is reprinted with permis-
sion from The Legal Intelligencer © 2022.
Being properly served or noced of court proceedings
is perhaps the most basic element of due process for any-
one involved in the court system. Receiving proper noce
is especially important when one’s parental rights are to
be terminated.
In the maer of In Re: M.K., a Minor, Appeal of: R.J.K.,
Father, 2022 Pa. Super. 7, the Pennsylvania Superior
Court considered whether a father — R.J.K. — received
proper noce of a hearing to terminate his parental
rights. In M.K. the Court of Common Pleas of Lancaster
County involuntarily terminated R.J.K.’s parental rights to
his daughter M.K. aer a hearing at which R.J.K. did not
appear.
Children and Youth Services (“CYS”) had been in-
volved with R.J.K. and M.K. since 2009. For most of
the child’s life, R.J.K resided in Ohio, and the child was
adjudicated dependent in 2018 when she was 12 years
old. While the child was in the care of CYS, a permanency
plan was developed with the goal of reuning the child
with her father. Eventually, on March 29, 2021, CYS led a
Peon to Terminate R.J.K.’s parental rights, alleged that
R.J.K. failed to complete the requirements of the per-
manency plan and determined that terminang father’s
parental rights would best serve the needs and welfare of
the child.
A hearing on the Peon to Terminate was scheduled
on June 14, 2021. In the interim, between the ling of
the Peon to Terminate and the hearing on the same,
R.J.K. appeared at a permanency review hearing on April
26, 2021. During the April 26, 2021, hearing, the date of
the terminaon hearing was stated twice on the record.
Although R.J.K. did not appear at the June 14, 2021,
terminaon hearing, his aorney did, and aempted
to contact his client during the hearing. Ulmately, as
R.J.K. did not appear, the trial court ruled against him
and terminated his parental rights. R.J.K. appealed to the
Pennsylvania Superior Court which armed the decision
of the trial court.
When evaluang this maer, the Pennsylvania Supe-
rior Court rst addressed the signicance of service of
process in a parental terminaon hearing by nong that it
is protected by nothing less than the due process clause
of the Fourteenth Amendment of the United States Con-
stuon. Constuonal due process requires a ligant to
receive adequate noce, and the chance to defend one-
self in a court proceeding. Accordingly, the Court indicat-
ed that while due process may be exible, in a maer as
signicant as parental terminaon, strict compliance with
service procedures is required.
In addion to the U.S. Constuon, the court noted
that the relevant mode of service of process in this sort
of maer is laid out in the Adopon Act of Pennsylvania
(Secon 2513) and requires service via personal service
or registered mail. In addion, the Pennsylvania Orphans’
Court Rule 15.6 requires noce via personal service or
registered or cered mail.
In the instant maer, R.J.K. was present at ve hear-
ings prior to the June 14, 2021, hearing, and had never
indicated a change of address. According to the record at
the April 26, 2021 hearing, the Court instructed R.J.K. to
be present at the June 14, 2021, hearing, and CYS sent
noce of the hearing to his last known address via cer-
ed mail. The agency received a receipt showing delivery
of the noce on May 14, 2021, a full month prior to the
hearing. Despite this, the trial court was informed at the
June 14, 2021, hearing that R.J.K. had not been in contact
with CYS or his aorney since at least April 2021.
R.J.K. argued to the Superior Court that menoning
a hearing date at a prior hearing is not one of the proce-
durally authorized ways to provide noce (per the laws
and rules noted above). Furthermore, he contended the
alleged cered mail delivery of the hearing noce was
lacking as it was not signed by him or some other individ-
ual at his residence, but was, instead, merely asserted to
have been delivered by the United States postal worker
who allegedly delivered it. Consequently, R.J.K. reasoned,
there was no evidence of delivery upon an actual adult at
his residence. In addion, R.J.K. observed that there is no
evidence at all that anyone ever aempted to personally
serve him with the hearing noce.
In making its ruling, the Superior Court found no error
of law or abuse of discreon from the trial court. The Su-
perior Court believed that delivery via cered mail was
suciently proved regardless of the lack of a signature as
the United States Postal Service tracking history indicated
delivery.
Signicantly, for the Superior Court, was the fact that
R.J.K.’s aorney was present at the June 14, 2021, hearing
and, despite his inability to contact his client or explain
R.J.K.’s absence at the aforesaid hearing, he, somewhat
inexplicably, never requested a connuance of the hear-
ing in order to aempt to secure his client’s appearance
at a rescheduled hearing.
The Superior Court also observed that R.J.K.’s ar-
guments appeared semancal in that he never argued
he did not receive noce, only that he did not sign the
card for cered mail. Based on that, therefore, the
Superior Court ruled that the trial court could conclude
he received sucient noce, especially when viewed in
Articles
Articles
connued on page 51
Court Reviews Proper Service for Parental Termination
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
51
By Robert D. Weinberg
In Consultaon with Dr. Eric Bernstein
Wrien in collaboraon with Dr. Eric Bernstein, a li-
censed psychologist, who for almost 20 years has worked as
a child custody evaluator in Western Pennsylvania and with
experience in invesgang for parental alienaon, this ar-
cle is an aempt to bring aenon to an important maer
for our interest, how to invesgate for, and respond to issues
of parental alienaon.
Parental alienaon undoubtedly occurs in high conict
custody cases. Oenmes the favored parent may not even
realize that he or she is engaging in alienang conduct, such
as removing the other parent’s picture or refusing to talk to
the other parent at a baseball game. This subtle messaging
can have serious, deleterious consequences for the child’s
relaonship with the other parent.
However, focus on parental alienaon to the exclusion
of other factors can result in missing the broader problems
that oen lead to parent/child estrangement. The more
eecve approach to dealing with “alienaon” facts is to
consider such evidence as a part of a larger rubric commonly
referred to as “resist and refuse problems” (RRP). RRP will
consider the bad acons of one parent but, more important-
ly, RRP will scrunize the enre family system to come to an
understanding as to why a child is rejecng a parent; it also
informs the remedy.
The RRP rubric is muldimensional. It looks at parenng
style: is the parent aeconate, empathic and supporve?
Is the parent permissive, submissive or passive? Or is the
parent unemphac, unresponsive or even cold toward the
child?
RRP also considers parenng style on a spectrum rang-
ing from passive to authoritave to authoritarian. When
combined with a parent’s nature, you have eecve parents
who are warm, empathic, and appropriately authoritave,
to parents who are possibly warm but permissive or even
passive, to parents who are cold and authoritarian.
RRP also looks at the needs of the child at issue in terms
of how they t with parenng style. Much of this can be
gleaned from each parent’s historical involvement in care-
taking and nature of the parent/child relaonship over the
child’s life.
All of these elements come together in an eort to un-
derstand the family system and the dynamic forces at play in
the various relaonships to begin to try to understand why a
child may reject a parent.
For example, if dad was frequently absent when a child
was young and mother was a constant, this factor would
suggest that the child would naturally have an anity for
mother later in life.
In this example, perhaps the dad is more authoritave
and a bit “colder” or less empathic in his interacons with
the child. When the pares ulmately separate, dad’s eorts
to set limits that he feels are appropriate, but may be more
draconian than mother’s, would understandably be met by
the child’s preference for the comfortable caretaker without
resort to any discussion of alienaon.
Add to the mix that perhaps the mother is permissive
but loving in her parenng style: the child gets to choose.
Now the child is empowered to refuse me with dad. The
family dynamic is increasingly unhealthy; yet alienaon is
sll not a part of the problem. Of course, there are issues
of abuse, neglect, mistreatment, trauma and violence that
could color a child’s perspecve and relaonship with a
parent.
Now assume that mom is angry at dad. Perhaps he
cheated. Mom may signal through her conduct — pung
connued on page 52
Articles
Avoiding the Parental Alienation Trap
conjuncon with the fact that he was told of the June 14,
2021, hearing date twice at the April 26, 2021, hearing.
Based on the above, the Superior Court ruled that
R.J.K. did receive adequate noce of his parental ter-
minaon hearing, and armed the decision of the trial
court.
This case is a cauonary tale to ligants, especially in
dependency maers. While eectuang sucient noce
is a basic element for due process, evaluang whether
someone received noce can be subject to an analysis
that takes a somewhat holisc view of a case, and how
and when someone is informed of a hearing.
Court Reviews Proper Service for Parental Termination
connued from page 50
James W. Cushing is senior associate at the Law Oce of Faye
Riva Cohen PC and is a research aorney for Legal Research Inc.
He is licensed to pracce law in Pennsylvania and is a regular
contributor to The Legal Intelligencer and the Philadelphia Bar
Associaon’s publicaon Upon Further Review. He is a volunteer
aorney for the Chrisan Legal Clinics of Philadelphia. He can be
reached at 215-563-7776 or [email protected].
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
52
Articles
away dad’s picture at her house — that dad did something
wrong. She may not even realize that her behavior is signal-
ing to an aligned child that the child needs to assuage mom’s
demonstrated stress by rejecng dad. The child starts to feel
an internal loyalty divide and needs to message fealty to
mom by calling dad names or refusing to go with him. The
fun memories with dad are quickly forgoen and expunged.
Mom may even “parenfy” the child or rely on the child for
emoonal support, which serves to further erode appropri-
ate parent/child boundaries.
Now add into this miasma that, in a pique of anger,
mom has made some negave comments about dad to the
child. “Your dad missed your game because he was with his
girlfriend.” “Your dad lied about where he was last night.” Or
perhaps the child has a phone and calls mom while at dad’s
house, afraid for some unjused reason. And mom, instead
of saying “you’re ne,” comes and picks the child up.
Mom’s behavior is clearly problemac. But it is not the
only reason, and not necessarily even the most important
reason, why a child comes to reject a parent. Indeed, a child
in this scenario with a stronger bond with dad would be
more able to see how mom’s statements don’t align with his
or her own concrete experiences; but where dad’s relaon-
ship is frail or his own conduct has, at least in part, informed
the child’s worldview, mom’s conduct becomes all the more
impacul in buressing the child’s rejecon of dad.
Under any scenario, however, waging an alienaon
war against mom will only deepen the divide between dad
and child. Yes, mom’s “bad” acts need to be addressed and
stopped. But, more importantly, the mom in this example —
the aligned parent — absolutely must be a part of the solu-
on, and this is where the alienaon trap leads estranged
parents astray.
Many commentators on parental alienaon suggest
that the oending “alienator” must be removed from the
children to reverse their estrangement. There are several
programs and professionals, the subject of much controver-
sy, who support a “de-programming” methodology, which
can be as severe as a total expungement of the oending
parent for a brief or even extended period from the es-
tranged children’s lives.
To correct the family dynamic, however, all family mem-
bers must have a seat at the table. And the aligned parent
holds the key to changing the direcon of the family system.
In order to make this change, all elements of the family
system need to be addressed. In the example above, dad
needs to improve his parenng style; he needs to respond
empathically to concerns of the child without accusing or
beliling the child or the mother. Mother also needs to
reform her parenng style; she needs to learn not only how
to set limits in her house but also how to support reasonable
limits at dad’s house (and why failing to do so will have a
negave impact on her own relaonship later). Mom cannot
be a lifeline to pick up the child at any me because he or
she is “uncomfortable” at dad’s: realigning the family system
will invariably be uncomfortable, awkward and stressful for
everyone. Further, both pares need to work on co-parent-
ing to harmonize their eorts with the child.
Crically, the child needs to work through the reasons
for rejecng a parent. Considering the child’s age and matu-
rity, this starts with taking head-on the stated juscaons
for the rejecon; some of these may be legimate and
fact-based. However, the child also needs to work through
the unjused reasons for rejecng a parent in a sensive
therapeuc process that is fully supported by both parents.
The enre “reunicaon” process is best overseen by
a team of skilled clinicians with signicant experience not
just in psychology but in working with families of separaon
and divorce. It should truly be a treatment “team” working
in concert with each other to harmonize their messaging to
the enre family and to ensure consistency in the treatment
approach.
Indeed, one of the major drivers of a family system fail-
ure is the involvement of clinicians who are not experienced
in this specic area and who may, unwingly, reinforce the
unjused rejecon of a parent by a child or who may push
a parent to aack the other in unconstrucve ways (such as
by waging an alienaon accusaon campaign) because the
therapist is acng as an advocate for their paent.
Aorneys and courts must also support this shi in ad-
dressing RRP. Contempt claims and legal remedies will only
serve to entrench the family dynamic problems. It makes
no sense to have the sheri try to make a child go — all of
this tells a child that going with the estranged parent is a
punishment and thus serves to deepen the child’s rejecon.
And further evaluaons may serve to make a child angrier —
probably at the estranged parent — when the likely recom-
mendaon will be for the family to parcipate in therapy.
Of course, a trial may be necessary. But the court’s
authority should be ulized to coerce compliance with the
therapeuc treatment regimen; regular status conferences
with counsel and the lead reunicaon therapist would
allow the court to ensure that all pares are engaged and
acng in good faith.
The judicial framework for addressing RRP should be a
specic, detailed court order that requires the pares and
children to parcipate in an intensive reunicaon process;
sancons should apply to noncompliance with the thera-
peuc process as opposed to forcing a child to go with the
other parent. The order should include authority for the
clinicians to direct the dates and mes of appointments; to
dictate short periods of custody with the estranged parent;
and to allow access to all informaon and professionals —
Avoiding the Parental Alienation Trap
connued from page 51
connued on page 53
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
53
Articles
Avoiding the Parental Alienation Trap
connued from page 52
including therapists — that had worked previously with all
family members.
Time is of the essence: every day that passes without
addressing the negave dynamic will serve to intensify the
child’s rejecon and reduce the chances for a more posive
outcome.
All parcipants in the reunicaon eort must agree on
a simple message: it is in the child’s best interests to have
healthy relaonships with both parents, as children who
unjusably reject a parent will invariably have their own
mental health issues and relaonship dicules — including
possibly rejecng the favored parent down the road.
The estranged parent must accept that success may be
simply having dinner with the child without a supervisor or
a series of posive text exchanges. Progress toward reuni-
caon will be painfully slow even if the aligned parent is
supporve. Estranged parents must also learn to listen to
their child without interrupon or challenge and to respond
with simple empathy, even to lies. Expectaons must be
managed accordingly.
The aligned parent must message to the child that he
or she will not be upset if the child shows aecon for the
other parent.
The framework may also require the services of a third
party “supervisor,” who, ideally, can develop a comfort level
with the child and who can accompany transions and even
oversee interacons with the estranged parent. Many par-
ents would balk at the noon of being “supervised,” but this
intervenon provides a level of protecon for the estranged
parent from false claims as much as it serves to “protect”
the child.
These remedies and intervenons necessarily reject
the noon that parental alienaon explains everything.
Indeed, a simple focus on parental alienaon to exclusion of
all other factors will only further trap estranged parents in
a never-ending cycle of ligaon without any real hope of a
successful reunicaon.
Dr. Eric Bernstein is most recognized for his work in maers
concerning child custody, child dependency and juvenile
delinquency. He rounely invesgates for children’s best in-
terests and with consideraon to issues of violence, risk, ad-
dicon, alienaon, abuse and parenng. Having performed
several thousand evaluaons, tesed approximately two
hundred mes as an expert for the Court, and praccing in
approximately 12 counes and in two dierent states, Dr.
Bernstein is skilled in negoang through complex and lay-
ered cases. On a naonal level, he presented at Associaon
of Family, Conciliaon, and Courts (AFCC), and more locally,
for the Pennsylvania Psychological Associaon, Mid-Annual
Judges Conference and Pennsylvania Bar Associaon about
maers concerning professional ethics, domesc violence,
parental alienaon and child custody evaluaons. Dr. Bern-
stein can be contacted as follows: www.drericbernstein.com;
412-338-1808.
Robert D. Weinberg is an associate aorney at Genle,
Horoho & Avalli P.C. in Pisburgh (www.gha-lawrm.com).
Mr. Weinberg has pracced family law in Pennsylvania since
March 2016; he previously worked for a family law rm
in Chevy Chase, Maryland, for 10 years before moving to
Pisburgh with his wife who took a posion as a pediatric
cardiologist at UPMC Children’s Hospital. Mr. Weinberg can
be reached at (412)-261-9900 or at rweinberg@gha-law-
rm.com.
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
54
By Mark R. Ashton
Extreme mes produce irraonal responses. On June 1,
2022, an unhappy orthopedic paent in Oklahoma decided
it was me to kill his surgeon. He took three other lives as
well as these people got “in his way.”
We are seeing this kind of irraonal and largely self-de-
strucve conduct in the domesc world was well. In April
2022, the Superior Court decided a case where the books
and records of the business were so bizarre that no sense
could be made of them. In an odd twist the Superior Court
remanded the case out of concern that the party who kept
the books may have been treated unfairly. Snyder v. Snyder,
2022 Pa. Super. 72; 2022 WL 1161756 (April 20, 2022).
The non-precedenal Crimi case, decided on May 25,
2022, follows a similar theme. Crimi v. Crimi 1349 EDA 2021
(non-precedenal). The Crimis married in 1992 and sepa-
rated 21 years later in 2013. Husband led for divorce in
2017 according to the court’s opinion although the docket
number sll carries a 2009 number when there had been an
earlier ling.
The pares had an anque business called Best of
France, Inc. Husband owned 90%; wife 10%. Curiously, while
the maer was pending Husband closed Best of France and
then re-opened as Edmondo Crimi, LLC. He did that in April
2019.
We menoned that the case had a 2009 ling number.
While informing us that the 2009 case was withdrawn in
August 2010 (fn. 1) the trial court opinion described a 2014
order by which the pares agreed that inventories of the
then exisng Best of France assets would be performed and
photos of the anques taken, quaintly, to preserve the facts
“in amber.” This apparently did occur as wife introduced her
inventory and the photos during the trial in 2021.
Five months aer the divorce was led (or perhaps
beer put “resumed”) the pares were back in court in June
2017 where the court ordered husband to provide wife with
a revised/current inventory and wife was to account for
what she had “taken” from the business. The order was ig-
nored so the pares returned for another hearing where the
judge reordered them to do what she said and to update the
business inventory monthly. We do not know whether either
order was complied with; only that the maer meandered
on to a non-record master’s hearing in late Summer 2020.
Note well, that somehow, someway, the business called Best
of France was closed by husband in April 2019 and re-con-
stuted in his name as an LLC. As one might expect the
master’s recommendaon was appealed and a trial de novo
was scheduled.
Aer several days of trial over several months in early
2021, the trial court directed husband to pay $836,394 as
“equitable reimbursement alimony” in 6 annual installments
of $139,399. Husband appealed.
The core of the appeal is husband’s contenon that
the trial court divided the business assets while ignoring
$3,329,000 in business debt, almost half of which was
due to one individual. As one might expect, that individ-
ual professed to have a secured interest in the inventory
of anques. At trial, husband argued the business (Best of
France or Crimi LLC?) was worth negave ($1,000,000). Wife
said the business was worth $2,100,000. Thus, a $3,000,000
delta in values.
While telling us that there was no separaon unl 2013,
the trial court concludes that husband began in 2012 to gut
the value of the business by taking loans from someone
named Chance Worthington. Wife professed to have no
knowledge of these loans. The trial court opines that as a
shareholder wife had to be informed of the debt and con-
sent to it. It also notes that in 2017, while the pares were
fussing over inventories, husband seled a lawsuit brought
by another anque dealer by borrowing money from
Chance Worthington and granng him a secured interest in
all of the Best of France “machinery, equipment, inventory
and accounts.” This was said to secure an obligaon due to
Worthington since 2014. How the 2014 debt relates to the
2012 debt due Worthington is unexplained. But, the trial
court notes that husband never made any payments to the
two creditors (Worthington and another named Shapiro)
Articles
connued on page 55
Responding to the Divorce Where One Spouse Is
Ready to “Burn Down the (Financial) House”
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
55
Articles
Responding to the Divorce Where One Spouse Is Ready to “Burn Down
the (Financial) House”
connued from page 54
and that there was no loan documentaon submied to the
court at trial, nor were these debts carried by the accoun-
tant on the business balance sheet. At the risk of tedium,
I note that husband professed that Worthington had a
secured interest in the assets as a maer of New York law.
One has to ask when and how New York adopted “paper-
less” secured interests? Moreover, how did the assets of
Best of France get into the hands of Crimi, LLC in 2019 with-
out addressing the secured interests said to be outstanding?
The opinion informs us that there was also a parcel of
real estate. Husband stopped paying the mortgage and taxes
on that property aer “separaon.” The property was sold
by the sheri and the mortgagee took tle. The resourceful
Chance Worthington popped up and made a deal to buy the
property from the bank for $700,000. Chance was fortu-
nate to nd a party to lease his newly acquired property.
Husband agreed to pay Worthington $6,000 a month as
rent. That is almost twice what it would have cost husband
to borrow $700,000 when the foreclosure/rental deal was
made. The trial court found that husband paid the rent
promptly and that at the me the foreclosure took place,
his bank statement demonstrated the ability to pay Wells
Fargo its monthly mortgage. This foreclosure and lease were
expressly found to be a dissipaon intended deliberately to
deprive wife of an equitable distribuon.
The appellate opinion ends blandly. The trial court made
credibility determinaons and those are entled to the
“fullest consideraon.” The appellate court found that it saw
no records disposively showing that the debts to either
Worthington or Shapiro were actually made before sepa-
raon. It also enforces an agreement wife alleged that she
made with husband as a condion of their reconciliaon.
“We agreed that he would not do anything with the busi-
ness without my knowledge and primarily had to do with
taking out loans, whether they were business or personal
private loans or business loans. No loans period without a
discussion and he agreed to that.”
The case also presents a curious analysis on the val-
uaon of “inventory.” While there were two court orders
in 2017 related to creang an inventory of assets, neither
party produced an expert opinion related to the value of
that property. In fact, husband did not produce an inventory
at all but professed that he relied upon his records of his ac-
quision costs. Meanwhile, he also told the court that there
was “no way” to track what was in the business inventory at
the date of separaon. Wife oered the court photos of the
property she professed to be inventory and provided 2014
values for each object based upon her “professional opin-
ion.” Her opinion was that the inventory had a wholesale
value of $1,595,753. The trial court adopted those values
and discarded husband’s argument that his reported acqui-
sion costs should have been employed instead nong that
he did not provide that informaon. The court does refer-
ence the Forms 1125-A led with the business returns and
concludes that they reconcile with wife’s valuaon. (Opinion
p. 20). The problem this writer sees with that reconciliaon
is that the year-end inventories for tax years 2013 and 2014
never exceeded $457,000.
In the end, the case is remanded and for that the trial
court must be granted sympathy. It seems the equitable
reimbursement alimony included what amounted to arrears
from a spousal support/alimony pendente lite (APL) acon.
The Superior Court properly notes that support/APL arrear-
ages are one kind of award. Equitable reimbursement alimo-
ny is conned to sengs where distribuon of the “exisng
marital assets … would be insucient to compensate the
payee spouse for his or her contribuons to the marriage.”
Johnson v. Johnson, 864 A.2d 1224, 1230 (Pa. Super. 2004).
The appellate panel notes that the court idened and
valued marital assets based on wife’s inventory. Husband
argued that these assets were subject to a security interest,
but he provided no documentaon to show the loans or the
perfecon of the secured interest. Meanwhile, the court
oers that if wife should cohabit, the alimony might be lost.
(Opinion p. 32). But, isn’t the enre point of this “reimburse-
ment alimony” to eliminate that risk? Secon 3701 of the
Divorce Code indicates that alimony is needs based and the
need is deemed forfeited by cohabitaon. 23 Pa.C.S. 3706.
Equitable reimbursement really is not alimony because it
is equity based and not needs based. This is a topic where
there needs to be judicial clarity. Suppose a New York court
nds that the inventory is physically located in that state’s
jurisdicon and that there is somehow a valid lien due to
Worthington or Shapiro? Isn’t wife sll entled to her share
of what the Pennsylvania court found to be unencumbered
marital assets? Equitable reimbursement may be her only
remedy and cohabitaon should not allow those rights to
be lost. The Superior Court was correct to sever the support
arrears from equitable reimbursement. But the court could
and should have simply claried through a modied order
that $836,394 was indefeasible equitable reimbursement
and that the balance of alimony pendente lite due under the
December 2019 order ($21,780 per page 3 of the opinion)
connued on page 56
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
56
was not modied by the nal divorce decree and order.
This is a troubling case. It is chock-full with important
legal issues, none of which was really decided. Like the re-
cent Snyder case, it is also a case where one party eecvely
led the court and a spouse on a wild goose chase to nd the
assets. The takeaway is that courts need to get a leash on
cases such as this one.
Articles
Articles
Articles
Articles
Putting Yourself First … At Least Some of the Time
By Melanie J. Wender
I became aware of a potenal health issue several years
ago. At that me, my doctor advised me that it was not
anything to be concerned about, so I connued on with my
life and connued to focus on my career. When the issue
raised its ugly head again, I ignored it. It was not a conve-
nient me for me to deal with it. I had too much going on at
work, hearings coming up and clients who depended on me.
So, again, I put it o. Then I moved to my current rm and
my boss right away encouraged me to get this health issue
checked out. Well, I nally did just that and what I thought
was likely going to be a nonissue was actually an issue. Now,
I’m one surgery done, a second to go and then addional
treatment and medicaon management.
Why I am telling you all my troubles? Well, to hopeful-
ly encourage others not to follow my example. We, as in
associates, put so much pressure on ourselves. We need to
bill as much as possible, be available for work at all hours,
and then network, network, network! Our whole lives can,
at mes, be consumed by work, which is incredibly problem-
ac. It is exactly for this reason why associates are at higher
risk of burnout, a state of mental, physical and emoonal ex-
hauson. We put so much pressure on ourselves to achieve
career success that we put everything else on the backburn-
er, including our health.
As associates, we also feel that we do not have an op-
on, that if we tell our boss that we need to take me o to
address a medical issue, it will somehow negavely impact
our career. The me o will result in fewer billable hours
and then suddenly we can’t gure out how to make-up
that me. The truth of the maer is that if we have honest
conversaons with our bosses, with the partners, they will
actually understand and encourage you to take the me
o that you need. Your boss does not want you to burnout.
Your boss needs you! Your boss also wants you to be healthy
because, again, the rm needs you! We need to work to
change the career narrave for lawyers. You can get ahead
by working hard and taking me o. You can be successful
and achieve partnership status by taking me o for vaca-
on and for doctor’s appointments. You can also be success-
ful by establishing boundaries and mes when you do not
work. Frankly, it is incredibly important and healthy to have
me established when you do not work, when you perhaps
watch the “Real Housewives of Dubai” (highly recommend)
or enjoy a happy hour with friends.
I realize that all of the above is easier said than done
and I am saying all of this to myself especially. I am clearly
guilty of pung my career on the forefront and ignoring
bigger issues. But, I am now forced to take me o, to slow
down a bit and actually get my health, the most important
thing, in order. The lesson here is to put you rst. Get to
those doctor’s appointments, make me for friends, do not
make work your sole focus. Now, hopefully, I will see all of
you at the summer meeng in Newport, Rhode Island, and
we can all let our hair down and have some much deserved
fun!
Melanie J. Wender is a family law aorney at Antheil
Maslow & MacMinn LLP in Doylestown, Bucks County. She
regularly authors for legal industry publicaons and is a
board member of the Bucks County Bar Associaon and
Legal Aid of Southeasters Pennsylvania. Melanie can be
reached at mwender@ammlaw.com or 215-230-7500.
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.com. 610-458-4942
Articles
connued from page 55
Responding to the Divorce Where One Spouse Is Ready to “Burn Down
the (Financial) House”
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
57
By Mark E. Sullivan
(Part 1 of this arcle covered arrears in collecng
pension-share payments, jurisdicon, COLAs (cost-of-liv-
ing adjustments) for the pension, geng garnishment
payments, and deadlines.)
Q. Let’s talk about geng the plan administrator’s
approval; that’s what I obtain when I’m doing a QDRO.
Most civilian employers will let my oce submit a dra
order for review and approval before it’s led with the
court. Does DFAS allow that?
A. No, you can’t do that. The rered pay center will
not provide pre-ling approval or review by the rered
pay center. When the order has been signed by the judge
and led with the court, the agency will give “condional
approval” if it meets the requirements for such a docu-
ment:
If the former spouse applies prior to the member
receiving rered pay, the designated agent will perform
a legal review of the applicaon, and may condionally
approve it based on informaon available at the me of
the review concerning the member’s duty status (acve
or Reserve).
DoDFMR Vol 7b, Ch. 29, ¶290405.A.
When the individual starts receiving rered pay, the
agency will perform a second review prior to establishing
the former spouse’s direct payments.
Q. Is there a “go-by” I can use to write up a good,
solid and acceptable military pension division order?
A. While you’d surely like a good, solid YES for the
response, the true answer is a denite maybe. You can
nd sample pension text at Figures 29-1 and 29-2 at the
end of Chapter 29, Volume 7b of the DoDFMR. Here is
the essenal data required:
1. Plain’s SSN
2. Plain’s address
3. Defendant’s SSN
4. Defendant’s address
5. Date of marriage
6. Date of divorce
7. County and state of divorce
8. If the divorce was granted aer December 23,
2016 and, at me of divorce, the member was not receiv-
ing rered pay, then the two data points for the Frozen
Benet Rule are also required (as of date of divorce, the
member’s years of creditable service — or rerement
points for a member of the Guard/Reserve — and also
the “High-3” pay informaon).
What about the member’s Social Security Number?
The SSN is oen barred from publicaon in a court order
by state law. It is permissible to leave that item out in the
MPDO (military pension division order); in the alternave
one might insert only the last four digits and state that
the full SSN is shown on the cover sheet, DD Form 2293,
which must accompany the military pension order and
the divorce decree.
Be careful using these examples in the DoDFMR,
however. Figures 1 and 2 enrely omit any Survivor Ben-
et Plan coverage, which may be one of the issues that is
in the divorce selement or the judge’s property division
order.
To nd beer text for pension division orders and
clauses, see the Silent Partner infoleers on Geng
Pension Orders Honored by the Rered Pay Center, and
Military Pension Division: Guidance for Lawyers, both
at the website of the North Carolina State Bar’s military
commiee, located at www.nclamp.gov > For Lawyers.
Q. I heard from the other side that their client,
Sergeant Jack Smith, got a medical rerement, and that
the court cannot divide any of that. Can the judge divide
connued on page 58
“You Can’t Do That!” — Stop Signs and Solutions In
Military Pension Division Cases (Part 2)
Federal/Military Corner
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
58
military disability rered pay?
A. Once again, you can’t do that. Military disability
rered pay is granted to individuals who are found to be
unt for service. The topic is covered at Chapter 61 of
Title 10, U.S. Code. When the Service Member (SM) has
served at least 20 years or has a disability rang from
the military (NOT his VA rang!) of at least 30%, then
he receives MDRP, or military disability rered pay. He
is informed of this by his branch of service, which must
determine how his MDRP is calculated. Jack Smith is en-
tled to payment of the higher of these two amounts:
• Rered pay based on his years of service (i.e.,
longevity rered pay), or
• Rered pay based on his percentage of disability.
Only disposable rered pay (DRP) can be divided, and
Jack’s DRP consists of gross pay less certain items, includ-
ing “The amount of rered pay for a member rered un-
der Title 10, Chapter 61 computed based on percentage
of disability.” 10 U.S.C. §1408 (a)(4)(A) (iii); DoDFMR Vol.
7b, ch. 29, ¶290701.B.5.
Thus, if Jack’s rered pay is $2,500 based on longevity
calculaons (vs. only $2,000 based on percent of disabili-
ty), only $500 would be divisible as DRP, since the under-
lying $2,000 cannot be divided — it’s excluded from the
denion of DRP. If, on the other hand, Jack’s rered pay
is $2,500 based on percentage of disability computaons
(vs. only $2,000 based on years of service), then none of
it can be divided. The enre amount is excluded from the
denion of disposable rered pay.
Note, however, that if the pares agree on payments
through the rered pay center, they can accomplish
monthly garnishments through a consent order for spou-
sal support, as shown in the following two quesons.
Q. The pares have not been married for 10 years
during at least 10 years of creditable military ser-
vice. Does that mean there is no way to get payments
through DFAS?
A. No — it simply means that you cannot get pen-
sion-share payments for the former spouse as property
division through the rered pay center. 10 U.S.C. §1408(d)
(2). There is a work-around, however. There is no 10/10
overlap rule for payments made by the rered pay center
as spousal support. Thus the ocials at DFAS will accept
and honor a “consent order for alimony,” for example,
which sets out all the required informaon and species
that the former spouse will receive the payments (xed
dollar amount, formula or percentage) upon the rere-
ment of John Doe. The order should also state that the
payments will be non-modiable if there is a change of
circumstances, and they will not end if Jane Doe remar-
ries or cohabits.
Q. I’m really upset about the Frozen Benet Rule,
which limits what my client can get to only the xed
benet for John Doe on the “date of divorce.” Is there a
work-around for that too, so my client can get a share of
nal rered pay instead of the amount set at the divorce
date?
A. Yes. You can use the “alimony alternave” above
to get around the Frozen Benet Rule so that Jane Doe
gets a share of the full rered pay of John Doe, not just a
share of what he would have received if he’d rered at di-
vorce. Recall that the Frozen Benet Rule, Sec. 641 of the
Naonal Defense Authorizaon Act for 2017 (and found
at 10 U.S.C. §1408 (a)(4)(B)) redenes what “disposable
rered pay” is, for the purposed of liming what can be
divided as property. Spousal support garnishments are
not based on “disposable rered pay.” They are based on
“remuneraon for employment.” 5 C.F.R. Part 581; DoD-
FMR Vol. 7b, ch. 27. Thus, the amount subject to spousal
support garnishment is not limited to hypothecal rered
pay of an individual upon divorce.
Q. Colonel John Doe is domiciled in another state.
Our judge says that doesn’t maer, since our state has
long-arm jurisdicon over him because the marriage
existed here in East Virginia for 15 years, the house
and personal property is here, the pares were mar-
ried here, and both children were born here. Is the
judge right? Can we get military pension implemented
through the rered pay center if John Doe doesn’t have
our state as his legal residence but we have loads and
loads of that “long-arm stu?”
A. The rules are clear in this area, and the answer is
a qualied NO. A state court can only exercise jurisdicon
over the division of uniformed services rered pay if it’s
his domicile, if he’s living there (other than because of
military assignment) or if he consents to the court’s juris-
“You Can’t Do That!” — Stop Signs and Solutions In Military Pension Divi-
sion Cases (Part 2)
connued from page 57
Federal/Military Corner
connued on page 59
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
59
Federal/Military Corner
dicon (which is called a “general appearance” in most
states). 10 U.S.C. §1408(c)(4). So the only way you can
get jurisdicon is if you can get the defendant to enter a
general appearance.
Q. I just led the summons and complaint for Jane
Doe’s divorce, and I need to get the address of the de-
fendant to serve him. Can I get that from DFAS? Aer
all, they send payments to him every month. Will they
give the address to me without a court order?
A. Once again, you can’t do that. Since you don’t
have service of process, you can’t get a judge to enter
a lawful and valid order. Even if you could, the folks at
DFAS probably don’t have the defendant’s address since
all money transfers have been done electronically since
2013; no one sends out monthly pension checks any
more. There is, of course, a chance that the les at DFAS
will contain some correspondence which would show the
defendant’s address, once you have service, le a moon
and get a hearing for a court order. Unless you can send
DFAS a court order for release of the correspondence
les, most likely you’ll need a private invesgator.
(Part 3 of this arcle will cover Guard/Reserve pen-
sion division, the Frozen Benet Rule, VA waivers and
indemnicaon, and the Survivor Benet Plan.)
Endnotes
1
For more informaon about the Frozen Benet Rule,
which xes the military pension that is divided at the
hypothecal value on the date of divorce, see the Silent
Partner infoleers on this subject at www.nclamp.gov >
For Lawyers.
2
Remember that, under the Tax Cuts and Jobs Act of
2017, alimony payments are not deducble for the payor
(and not taxable to the payee) for instruments executed
aer December 31, 2018. This means that some consid-
eraon may need to be given to reducing the amount of
alimony, since pension-share payments are included in
her income and excluded from the payor’s income. Thus
the pares might agree on, say, $2,500 per month in ali-
mony to replace $3,000 a month in pension division.
Mr. Sullivan is a rered Army Reserve JAG colonel. He
pracces family law in Raleigh, North Carolina, and is the
author of THE MILITARY DIVORCE HANDBOOK (Am. Bar
Assn.) and many internet resources on military family law
issues. A Fellow of the American Academy of Matrimonial
Lawyers, Mr. Sullivan has been a board-cered specialist
in family law since 1989. He works with aorneys and
judges naonwide as a consultant on military divorce
issues and in draing military pension division orders.
He can be reached at 919-832-8507 and mark.sullivan@
ncfamilylaw.com.
“You Can’t Do That!” — Stop Signs and Solutions In Military Pension Divi-
sion Cases (Part 2)
connued from page 58
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Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
60
By Alicia A. Slade
“An ounce of prevenon is worth a pound of cure”
originated in 1736 by Benjamin Franklin to educate
the cizens of Philadelphia about re prevenon and
awareness. The phrase was used to convince the cizens
of the city that it is beer to prevent re than ghng a
re and rebuilding aerwards.
Benjamin Franklin’s phrase is applicable today
to explain how important it is to use mul-factor
authencaon (MFA) tools to prevent a ransomware
aack or cybercriminals from gaining access to your
emails and your client’s data. Prevenon and being
proacve to thwart o a cyberaack will save you me,
money, and your reputaon.
Two-factor authencaon (2FA), also referred to
as mul-factor authencaon (MFA) or dual-factor
authencaon is taking an extra step during the account
login process. The extra step veries your identy via a
cell phone app, a text message or an email to the owner
of the account. Many people feel that this extra step is
too dicult because they need to enter a secure code or
approve the login via an app on their smartphone. Just
think, this is no dierent than taking the extra step to lock
your oce door or residence before leaving. You hold the
key to reenter the premises.
Cybersecurity professionals agree that having a
strong password is important but using mul-factor
authencaon (MFA) is 99% more eecve at stopping
cybercrimes. The extra step prevents an IT disaster and
keeps your client’s data safe.
Email compromise schemes are prevalent. The
contents found within emails and aachments are
valuable to cybercriminals. Over the past several years,
rms have moved their email from on-premises Exchange
Servers to either Microso 365 Exchange Online Hosted
Email or some other hosted email service, such as
Gmail. The migraon of email to a hosted environment
moves the emails from servers within your oce to the
Microso Cloud or some other provider. With this, a
cybercriminal doesn’t need to breach the oce network,
servers or computer. The cybercriminal can breach
an individual’s cloud account instead. When a cloud
account is breached, the individual is oblivious that a
cybercriminal has gained access to their email or data
in the cloud. The only way to know if a cybercriminal
is trying to access your account is by using mul-factor
authencaon (MFA). When the cybercriminal breaches
the login ID and password of a hosted email account,
prior to perming access to the account, a vericaon
request is sent to the owner of the account with a code
or an Approve/Don’t Approve alert nocaon. When
the individual receives the alert and knows that they
themselves are not accessing the account, they can stop
the cyberaack.
Unfortunately, too many people think if their
rm is small or if they don’t have important data, a
cybercriminal would not or try to get access. They could
not be more wrong. The size of the rm does not prevent
an aack and many types of data are valuable to a
cybercriminal to exploit.
While wring this arcle, one of my technicians
received a call from a client. An aorney at a 15-person
rm realized that their email had been compromised.
Bank informaon had been changed and emailed to an
aorney at a dierent rm. The aorney realized the
compromise when the other aorney sent a response
email that stated they “got it.” The compromised aorney
saw the response and knew that they had not sent
the email and called the other aorney immediately.
Aer some invesgaon, it was determined that the
cybercriminal had been in the aorney’s email account
for over a week. The cybercriminal observed incoming
and outgoing emails and the responses, waing for
banking informaon to be exchanged. Although
implemenng mul-factor authencaon had been
recommended many mes to the rm, the aorney
had refused implemenng it because they did not want
to take the occasional vericaon extra step. The extra
vericaon step is only needed when an email account
is accessed from an unfamiliar IP address, geographical
locaon, or device.
A few months ago, I received a call from the director
of a four-person nonprot organizaon who was referred
to me. The director proceeded to explain that the non-
prot organizaon used an Instagram account with over
4,000 followers. The director explained how it had taken
several years to culvate these social media followers.
Posng to Instagram was the method the organizaon
used to communicate with donors and general followers
of the organizaon. A cybercriminal had gained access
to the nonprot’s Instagram account and was holding
the account for ransom. The director was righully upset
and realized the consequences of the ransom aack. This
aack happened easily because the organizaon was not
using mul-factor authencaon to protect the Instagram
account.
It is important to use mul-factor authencaon
not just for your email and remote access but for social
media accounts and your website (LinkedIn, Facebook,
Instagram, Twier, etc.). Addionally, any online portals
you use to access nancial investments, banking, payroll
and insurance, should be setup to use mul-factor
authencaon. The opon to setup two-factor or mul-
Technology Corner
connued on page 61
“An Ounce of Prevention …”
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
61
This arcle summarizes several domesc relaons
bills introduced in the 2021-2022 legislave session of
the Pennsylvania General Assembly. Status of each bill
is as of June 13, 2022. The full text of the bills, as well as
their legislave history, may be found at: hp://www.
legis.state.pa.us/cfdocs/legis/home/bills/.
Newly Introduced Legislaon
Marriage
House Bill 2580, Printer’s No. 3092, was introduced
on May 6, 2022, received rst consideraon in the House
and was laid on the table on May 24, 2022, and was
removed from the table on June 7, 2022. The bill would
eliminate the waing period between applicaon and
issuance of a marriage licenses.
Bills Currently Under Consideraon
Divorce
House Bill 875, Printer’s No. 2904. The bill passed the
House (200-0) on April 25, 2022 and was referred to the
Senate Judiciary Commiee April 26, 2022. Requires that
a divorce decree include noce of the need to update the
beneciary on a party’s life insurance policy if the intent
is to keep the other party as a beneciary.
Parentage/Paternity/Parental Rights
House Bill 1731, Printer’s No. 2963. The bill passed
the House (203-0) on May 23, 2022, and received rst
consideraon in the Senate on June 8, 2022. Creates
the Pennsylvania Advisory Commiee on Greater Father
Involvement within the Joint State Government Commis-
sion.
Bills Inacve at the Current Time
Adopon
Senate Bill 188, Printer’s No. 156. Terminaon of
parental rights of putave father.
Alimony
House Bill 282, Printer’s No. 253. Bans alimony in
cases of spousal abuse.
House Bill 876, Printer’s No. 862. Alimony penden-
te lite amendments; use of marital home as residence
pendente lite.
Child Support
House Bill 111, Printer’s No. 79. Allows health care
co-ops to serve as an opon for mandatory child medical
support.
Custody
House Bill 1139, Printer’s No. 1191. Expands grand-
parents standing in custody maers.
House Bill 1146, Printer’s No. 1201. Criminalizes the
act of “rehoming” (an unregulated custody transfer).
Senate Bill 78, Printer’s No. 930. Enacts “Kayden’s
Legislative Update
factor authencaon is typically found within the account
security or privacy sengs of the portal.
Email is a goldmine for cybercriminals. The data
stored in OneDrive, SharePoint, Google Drive, Dropbox
or wherever in the cloud is too. A cybercriminal does not
need to breach your computer network or your computer
to get to your emails and documents since they can more
easily breach your cloud account. The only way to know
that a cybercriminal is trying to gain access to your online
account is by using mul-factor authencaon so you will
be noed of the peculiar access request and can stop it.
Taking precauons and being proacve, can and will
save you money. If your plan is to sit back and think that
it won’t happen to you or why would the cybercriminal
want anything you have, it is just a maer of me before
it happens to you, or your data is held for ransom.
“An ounce of prevenon is worth a pound of cure”
(Benjamin Franklin, 1736) could not be truer when it
comes to using mul-factor authencaon.” I want to
sound the alarm and make you aware of the importance
of taking the extra step within your accounts. Use mul-
factor authencaon to prevent a cybersecurity aack!
Alicia A. Slade, MS, MBA, is the president of Plummer
Slade, Inc., a computer networking, Managed Services
Provide (MSP), and Managed Security Service Provider
(MSSP) located in downtown Pisburgh. Plummer Slade
provides IT Managed services and soluons to hundreds
of law rms in Pisburgh and the surrounding area.
Plummer Slade is exclusively endorsed for IT Soluons by
the Allegheny County Bar Associaon (ACBA). Alicia can
be reached at 412-261-5600 or aslade@plummerslade.
com.
“An Ounce of Prevention …”
connued from page 60
connued on page 62
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
62
Law,” to authorize the court to impose restricons or
safeguards on custody in cases where there is a history of
abuse of a child or household member by a party.
House Bill 2287, Printer’s No. 2675. Enacts the Uni-
form Deployed Parents Custody and Visitaon Act.
Senate Bill 881, Printer’s No. 1184. Adds a new Chap-
ter 62 to Title 53 (Municipalies Generally) that creates
a one-me grant program for municipalies to develop
Safe Exchange Zone Programs that would provide a lo-
caon near law enforcement or an acve public area for
the exchange of custody of a child.
Divorce
House Bill 809, Printer’s No. 793. Requires the pares
to make certain nancial lings within 45 days of ling for
divorce or annulment.
Families
Senate Bill 195, Printer’s No. 168. Updates the Com-
monwealth’s Family Caregiver Support Program.
Senate Bill 577, Printer’s No. 623. Amends the Hu-
man Relaons Act to prohibit discriminaon on the basis
of familial or marital status.
House Bill 159, Printer’s No. 2326. Amends Chapter
63, Child Protecve Services of Title 23 (Domesc Rela-
ons) to include the U.S. Department of Defense Family
Advocacy Program in invesgaons of child abuse and
neglect allegaons involving military families.
House Bill 530, Printer’s No. 493. Parental Involve-
ment Leave Act.
Senate Bill 746, Printer’s No. 863. Extends family and
medical leave coverage to domesc partnerships.
House Bill 1210, Printer’s No. 1271. Amends the Hu-
man Relaons Act to prohibit discriminaon on the basis
of familial, marital, or family caregiver status.
Family Court
House Bill 1366, Printer’s No. 2412. Adds a new sub-
chapter to Chapter 73 of Title 42 (Judiciary and Judicial
Procedure) to adopt the Uniform Family Law Arbitraon
Act, which would allow voluntary private arbitraon of
family law maers such as custody and child support.
House Bill 1391, Printer’s No. 1507. Joint Resoluon
proposing amendments to the Pennsylvania Constuon
that would result in family court reform.
House Bill 1392, Printer’s No. 1508. Enact the Uni-
form Family Law and Jusce Act.
Marriage
House Bill 138, Printer’s No. 108. Marriage license
applicaon via adavit.
House Bill 485, Printer’s No. 448. Idenes religious
praconers who can perform a marriage ceremony.
House Bill 724, Printer’s No. 711. Adds current and
former members of the Pennsylvania General Assembly
to the list of persons who may solemnize marriages.
House Bill 824, Printer’s No. 806. Repeals 23 Pa.C.S. §
1704, which declares that same sex marriages are void in
Pennsylvania.
Senate Bill 558, Printer’s No. 587. Repeals 23 Pa.C.S.
§ 1704, which declares that same sex marriages are void
in Pennsylvania.
Parentage/Paternity/Parental Rights
House Bill 115, Printer’s No. 83. Uniform Parentage
Act.
House Bill 1038, Printer’s No. 1079. Parental incarcer-
aon cannot be the sole juscaon for terminaon of
parental rights.
Senate Bill 1150, Printer’s No. 1533, was introduced
and referred to the Senate Judiciary Commiee on April
1, 2022. The bill revises the procedures for name changes
of adults and unemancipated minors.
Property Rights
Senate Bill 303, Printer’s No. 314. Public employees
would not be able to make or change beneciary desig-
naons on their pension or rerement plans without the
consent of their spouse.
Yvonne Llewellyn Hursh is counsel with the Joint State
Government Commission, the primary and central non-
parsan, bicameral research and policy development
agency for the General Assembly of Pennsylvania in
Harrisburg, and the legislave editor of the Pennsylvania
Family Lawyer. She can be reached at [email protected]tate.
pa.us
connued from page 61
Legislative Update
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
63
By Shelly Grossman and Carolyn Zack
A client seeking to resolve their domesc relaons mat-
ters through mediaon is equally in need of their lawyer’s
support and advice as is the client ancipang their next
court appearance. Lawyers who send their clients to
mediaon without properly preparing them to address
the many factors at play and possible outcomes are doing
themselves and their clients a disservice. The role of the
lawyer in mediaon is not in the backseat, but in the
front seat assisng the client at the steering wheel.
Picture a client who had opmiscally entered the medi-
aon process and emerged having “successfully” reached
an agreement with their soon-to-be former spouse. Imag-
ine their diminished spirit aer returning to their lawyer
only to hear, ”That’s a bad deal for you; you should get so
much more or pay so much less.” That client is then faced
with the dilemma of accepng the lesser deal or starng
over in ligaon. A beer scenario would have been the
lawyer coaching the client through the mediaon pro-
cess, reviewing the disclosures and the opons discussed
at the mediaon sessions and advising the client how to
respond at the next session. The mediated agreement
would reect a deal reached by the pares that each of
their lawyers conrmed are “within the range” of rea-
sonable outcomes based on full nancial disclosure. In
that scenario, everyone walks away feeling beer about
the process and the fairness of the deal reached. Most
importantly, the pares feel that they have reached a cost
eecve and amicable resoluon on their own without
court intervenon. They are now less polarized and have
set the stage for beer and more cooperave com-
municaons into the future. Needless to say, they also
feel good about the legal counsel and support they had
throughout the process.
Crucial Role of Lawyers in Successful Mediation
By Daniel Bell-Jacobs and Kate O’Connor
We would like to hear from you! We’re interested in hear-
ing about your experiences with the new support rules.
We will be presenng the rules update at the Family Law
Secon Summer Meeng, and we’d like to incorporate
your recent case experiences based on those new rules
into our presentaon. Please feel free to contact Daniel
or Kate and let us know how the changes in the support
rules have aected your pracce.
For more informaon regarding proposed and enacted
rules, please visit The Pennsylvania Supreme Court Do-
mesc Relaons Procedual Rules Commiee website. If
anyone would like to contact the Rules Commiee, please
feel free to contact Daniel Bell-Jacobs (dbell-jacobs@hkh-
law.net) or Kate O’Connor (KOConnor@sweeneyneary-
law.com).
Rules Update
Mr. Bell-Jacobs is an associate with the Pennsylvania family
law rm of Howett, Kissinger & Holst PC, where he focuses his
practice on matrimonial law. Prior to joining Howett, Kissinger
& Holst, Mr. Bell-Jacobs served as law clerk for Judge Robert
G. Bigham of the Court of Common Pleas of Adams County
in Gettysburg. Bell-Jacobs obtained a Bachelor of Science in
Biological Sciences magna cum laude from the University of
Pittsburgh, and a Juris Doctor cum laude from the Harrisburg
campus of Widener University School of Law, now Widener
University Commonwealth Law School. He is a member of the
family law sections of the Pennsylvania Bar Association and the
Dauphin County Bar Association. Bell-Jacobs can be reached at
dbell-jacobs@hkhlaw.net or (717) 234-2616.
ADR Corner
connued on page 64
Kate O'Connor is a family law attorney at Sweeney & Neary,
L.L.P. She is active with the Pennsylvania and Delaware County
Bar Associations and is a frequent lecturer. She can be reached
at KOConnor@sweeneyneary-law.com or (610) 892-7500.
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
64
So, what is the role of the lawyer in mediaon when the
clients are at the mediaon table alone?
Teacher and Coach
Without the benet of legal counsel, pares come into
the mediaon process with their lay person’s view of
what is fair, which is ne if the pares are on the same
page and on the same bargaining level. However, if
one party is the nancial decision-maker of the family
or otherwise more dominant than the other, then the
mediaon process becomes skewed. Balance can be
created where both pares are educated by counsel in
the informaon they need to obtain from the other side,
along with a reasonable range of outcomes and a list of
issues to address.
Pares are encouraged to consult with their lawyers
aer each mediaon session so that they can review the
discussions and come up with a plan to respond to the is-
sues raised in preparaon for the next mediaon session.
Progress is made when the pares are comfortable with
the issues and possible ways to resolve them at the next
mediaon session.
Such coaching can place the pares on equal foong
and empower them to negoate nal terms at the next
mediaon session. In mediaon, the pares must have
the ability to ask for what they need and want and must
be able to negoate for it, knowing when and what to
compromise to reach a deal. The mediator will ensure
that the venue is a safe place to do so.
Self-educaon is a challenge given the dierent cus-
toms between counes and the subjecve nature of the
Divorce Code. A client’s best source of educaon is a
local family lawyer who can review the specic details of
a client’s estate and provide an overview of what they
are obligated to pay or are entled to receive. Counsel
can provide a list of documents to request and review
the disclosures with their client to verify the values and
balances. Counsel can advise as to whether real estate,
business or other appraisals or evaluaons are needed.
As the mediaon progresses, counsel can review with the
client what was discussed at the last session and prepare
the client to make nal decisions at the next session. A
mediator should not pressure a client to agree unl they
are comfortable and have had an opportunity to discuss
the tentave plan with counsel. Counsel assists in mov-
ing the process forward faster and, therefore, more cost
eecvely.
Disclosure
Many pares who choose mediaon have the miscon-
cepon that it is “cheaper” and “quicker” because the
mediator will collect the nancial informaon, evaluate it,
recommend a selement and then formalize any agree-
ment. While the mediator can facilitate the exchange of
informaon, the discussion of the informaon exchanged,
and the pares’ negoaon of a resoluon, the mediator
is not responsible for doing the work from start to nish.
For example, the mediator cannot provide legal advice
or advocate for either party. They advise clients of the
importance of transparency and disclosure to ensure the
validity and lasng nature of the agreement reached at
mediaon. Pares are encouraged to ask for informaon
and review documentaon to sasfy their due diligence
and lawyers who are assisng pares in the mediaon
process should forewarn them that disclosure is key to
the success of the mediaon. Many clients do not know
what documents to ask for, nor how to interpret them.
Imagine a lay person trying to decipher equity compen-
saon such as stock opons and restricted stock units
on diering vesng schedules? Then, guring out the tax
impact at the mediator’s prompng? Since the mediator
cannot provide legal advice, the mediator is not able to
analyze such documentaon. Pares are encouraged to
review the informaon with their lawyer and/or accoun-
tant. This will ensure that the requirement of full and fair
disclosure is met.
Issue Idencaon
While the mediator will probe the pares about their
concerns over the such issues as the maintenance of life
insurance, the status of their tax ling, division of tax re-
funds and tax liabilies, child tax credits and dependency
exempons, child’s college-related expenses, etc., many
clients are not sure what to ask for or why they need it.
This is where legal counsel is invaluable to mediaon cli-
ents desperate for an out-of-court soluon that is equita-
ble and long-lasng, with no regrets. A lawyer is the best
means to provide invaluable educaon to the mediaon
client as they are going through the mediaon process.
Such details are best resolved before an agreement is
draed.
connued on page 65
ADR Corner
Crucial Role of Lawyers in Successful Mediation
connued from page 63
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
65
Pung the Pares on Equal Foong
Legal counsel can boost the condence of the client who
may have been historically submissive to the other’s
party’s preferences. Likewise, legal coaching can reveal to
the more dominant party the value in considering other
alternaves presented by the mediator. Mediaon clients
are in the unenviable posion of having to make a busi-
ness deal in a highly emoonal situaon. Negoang the
deal with balance and objecvity is a challenge. Coun-
sel can provide their mediaon client with reasonable
expectaons and a reality check, thereby enabling both
the more dominant client and the more submissive client
to reach a fair agreement that both pares can feel good
about with no regrets.
Joining the Process
In some situaons where pares are unable to overcome
their disagreements and emoonal hurdles to reach an
agreement, counsel can be invited into the mediaon
sessions in a last-ditch eort to stay out of court. With
the party’s trusted mouthpiece and advocate in the
room, the mediator may be more asserve and make rec-
ommendaons on those issues on which the pares have
reached an impasse. The session can look more like a
selement conference. Counsel can present their client’s
perspecve and concerns, with the mediator chiming
in with their neutral suggesons to reasonably address
them. A negoaon can ensue ensuring all ancillary
issues and details are addressed and fully resolved. Such
lawyer-assisted mediaon results in a successfully medi-
ated agreement that minimizes costs and maximizes legal
protecons and comprehensiveness.
Draing the Agreement
Finally, there has been recent discussion among media-
tors about who should dra the agreement. Can the me-
diator truly be neutral and objecve in wring the terms
of a property selement agreement that is not skewed
in favor of one or the other party? What “boilerplate”
language should or should not be included? Should con-
ngencies (such as methods for resolving future disputes
regarding alimony modicaon, child support modica-
on and custody) be addressed? Should cohabitaon be
dened or not and, if dened, what are the parameters?
These are just some of the quesons that come up as we
dra for our clients, and mediators who do so are faced
with the same choices.
There is no right answer, although a recent case out of
Massachuses, Reid v. Kroll, et al., Superior Court, No.
2181CV00769 (led 11/29/21), should give mediators
pause before draing. In Reid, the husband led a claim
against a mediator who draed the pares’ separaon
agreement, alleging that the agreement was poorly
draed and allowed his spouse to collect alimony, despite
the pares’ intent that alimony was waived. The husband
alleged that the mediator acted as a lawyer in draing
the agreement and agreeing to le a joint peon for
divorce on behalf of the pares. On a moon to dismiss,
the trial court noted under the Massachuses rules of
dispute resoluon, a mediator is not permied to provide
legal advice, counseling or other professional services in
connecon with the dispute resoluon process, even if
the mediator is an aorney. A mediator does not pracce
law by developing a selement agreement or draing a
memorandum of understanding, but the mediator does
pracce law in draing a selement agreement on which
the clients will rely to secure rights in their divorce acon.
The court reasoned that nonlawyer mediators are not
permied to dra a legal separaon agreement to be
used in court since they do not pracce law. The court
also recognized an inherent conict in the mediator-at-
torney’s representaon of the pares in this draing
since there is a limitaon on joint representaon in an
adversarial maer such as a divorce. The court, there-
fore, held that the allegaons in the husband’s complaint
supported a nding that an aorney-client relaonship
existed between the mediator, the husband, and his ex-
wife, pursuant to which the lawyer had a duty to furnish
legal services competently, including the draing of the
agreement and related advice, and that the mediator
breached this duty by negligently draing the agreement.
The trial court, therefore, denied the mediator’s moon
to dismiss.
While Pennsylvania does not have rules for dispute reso-
luon, it does have Rules of Professional Conduct govern-
ing the lawyer’s role as a third-party neutral. Under Rule
2.4, the lawyer who serves as a third-party neutral (such
as a mediator) shall inform unrepresented pares that
the lawyer is not represenng them and, if a party does
not understand the lawyer’s role in the maer, shall ex-
plain the dierence between the role as neutral and the
role as advocate for the client. The potenal for confusion
about the lawyer’s role is the raonale for this rule. Un-
Crucial Role of Lawyers in Successful Mediation
connued from page 64
ADR Corner
connued on page 66
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
66
der Rule 1.7, a lawyer is also duty-bound not to represent
a client if the representaon involves a concurrent conict
of interest with another client; this Rule therefore prevents
an aorney from represenng both pares in a divorce
acon since the pares’ interests are, by nature, divergent
and the conict cannot be waived.
The queson therefore becomes whether an aorney-me-
diator who has assisted the pares in developing an
agreement of their economic issues can also prepare the
property selement agreement seng forth the terms
of that agreement. There is no express prohibion under
Pennsylvania law for the mediator to dra the agreement;
however, the mediator is well-advised to ask the pares to
retain counsel for this purpose. Alternavely, if the pares
are represented by counsel in the mediaon process, the
mediator may choose to be the scrivener only with an ex-
press understanding that the pares will submit the dra
agreement to counsel to be reviewed and nalized by their
respecve aorneys. In other words, it is just a step in the
process and not the nal document, unless the pares and
their aorneys agree. There is, perhaps, less concern for a
mediator who is draing a proposed custody spulaon in
a court-mandated mediaon session since, among other
reasons, the spulaon for custody will be submied to
the court for approval and can be reviewed and modied
in the child’s best interest; however, the mediator should
nevertheless conrm with the pares in wring that they
have the opportunity to review the dra spulaon with
their aorney before they sign.
Conclusion
Although the lawyer may not be physically (or virtually)
present during mediaon sessions, their thoughul advice
is crucial to their client’s ability to achieve their goal of
reaching a fair and comprehensive agreement with their
former partner. Clients will appreciate their lawyer’s sup-
port of their desire to stay out of court and/or to maintain
a conciliatory relaonship with their children’s other par-
ent. Disclosure and an understanding of the nancial and
ancillary issues will be ensured, resulng in a valid and sat-
isfactory agreement. Coaching clients throughout the me-
diaon process will eliminate the client’s disappointment
of learning that the agreement they mediated over the
past few months is not in their best interest, leaving them
with the dicult reality of connued fees and possible
court intervenon. A lawyer-assisted mediaon agreement
will avoid the unhealthy stress of connued discord with
their child’s other parent or estranged spouse/partner. A
lawyer’s role as coach and counselor during the mediaon
process is crucial in the client’s pursuit of a conciliatory
process to closure. In addion, the lawyer-mediator should
take care not to overstep their bounds in providing legal
advice and should encourage pares to retain counsel to
dra their property selement agreement or, at the least,
have their counsel review and nalize the agreement be-
fore it is signed.
Shelly Grossman served as a Family Court hearing ocer
in Chester County, Pennsylvania, for over fourteen years,
where she presided over equitable distribuon maers
from preliminary through selement conference and trial.
She is a partner at Pos, Shoemaker & Grossman LLC,
located in Chester County, where she acts as an arbitrator,
mediator, and parenng coordinator, and pracces family
law, with a focus on divorce cases. Shelly is a member of
Council and serves as the liaison to the PBA ADR Commit-
tee. Shelly is past-Chair of the Family Law Secon of the
Montgomery Bar Associaon. Shelly can be reached at
shelly@posshoemaker.com or 610-840-2626.
Carolyn Zack also served as a Family Court hearing ocer
in the Court of Common Pleas of Chester County, Pennsyl-
vania, where she also presided over equitable distribuon
maers, for eight years. She joined the rm of Momjian
Anderer LLC, located in Philadelphia, more than ve years
ago, where she pracces family law, and acts as an arbitra-
tor, mediator and parenng coordinator. Carolyn authored
the book, Family Law Arbitraon: Pracce, Procedure and
Forms, published by the American Bar Associaon in Au-
gust 2020. A link to this publicaon is found here: hps://
www.americanbar.org/products/inv/book/402949740/
Carolyn can be reached at czack@momjiananderer.com or
267-546-3712.
Crucial Role of Lawyers in Successful Mediation
connued from page 65
ADR Corner
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
67
Robert A. Sichelsel, Jr. v . Victoria L. Sichelsel, 272 A.3d
530 (Pa. Super. 2022)
By Stephanie Stecklair Taranno
Relevant Facts:
Appellant, Robert A Sichelsel, Jr. (“Father”) challeng-
es the trial court’s child support order and specically
disputes the calculaon of his monthly net income avail-
able for support. In May 2019, Mother led a Complaint
for Child Support and the maer was scheduled before
a Hearing Ocer. The Hearing Ocer calculated Father’s
monthly net income based on three sources of income:
(1) salary from employment, (2) performance bonus and
(3) “ow through”/ “pass through” income from various
businesses. This case specically addresses inclusion of
Father’s ow-through income from various businesses,
Father’s retained and distributed earnings, and Father’s
burden of proof with respect to retained earnings.
Father is a minority owner in 9 separate businesses.
According to Father’s 2018 income tax return, Father
received $155,014 in ow-through income from the
businesses. Father received distributed earnings totaling
$23,041 and the rest of the businesses retained the bal-
ances of his ow-through income. In calculang Father’s
net income, the Hearing Ocer included both Father’s
retained and distributed earnings.
Father led excepons to the support order on the
basis that the Hearing Ocer misapplied the law on ow-
through income. Father argued that none of the ow-
through income should have been included as the majority
of Father’s ow-through income was retained by the busi-
nesses, and the amounts distributed to Father were used
to pay the tax liabilies associated with the ow-through
income. Father’s excepons were dismissed. In dismiss-
ing Father’s support excepons, the trial court reasoned
that even if the Hearing Ocer was incorrect, the support
award was appropriate in considering the child had no
overnights with Father and, thus, the Hearing Ocer could
have awarded an upward deviaon and the obligaon
would have been essenally the same.
On appeal, Father raised four issues, three of which
the Superior Court addressed contemporaneously as they
related to ow-through income and Father’s burden of
proof related to retained earnings. The Superior Court de-
clined to issue an advisory opinion with respect to Father’s
fourth issue: whether the trial court erred and commied
an abuse of discreon by nding that the hearing ocer
could have included an upward deviaon.
Relevant Issues/Holding:
Whether all of Father’s ow-through income, including
both retained and distributed earnings, should be included
as income available for support, and whether Father met
his burden in showing he had no control over the business-
es’ retenon of earnings.
Relying on Fennell v. Fennell, 753 A.2d 866 (Pa. Super.
2000), Father argued that the retained and distributed
earnings could not be included in his obligaon because
he was not able to keep any distribuons and he had no
ability to control whether the companies would retain or
distribute his earnings. On appeal, Father argued that he
met his burden of proof regarding whether he had any
control over business funds simply by showing he was
a minority owner. The trial court disagreed because the
Hearing Ocer found Father’s tesmony and evidence
lacked credibility. The Superior Court determined the rec-
ommendaon contained no factual ndings or credibility
ndings. Father’s tesmony about his ow-through income
and use of distributed funds was not contested by Mother
or further invesgated by the Hearing Ocer. Father sub-
stanated his tesmony with appropriate documentaon.
With respect to Father’s burden of proof, the Superior
Court determined Father provided uncontested tesmony
and evidence that he was a minority owner; and there
was no nding nor evidence to support the inference that
the businesses retained earnings in an aempt to shield
income from support. It is important to note that the
Superior Court is not suggesng or agreeing with Father’s
posion (that a minority owner, by denion, cannot
control retenon or distribuon of corporate earnings). In
this instant case, Mother had an opportunity to challenge
Father’s ability to control distribuon of funds; further in-
vesgaon to Father’s income could have been done. That
simply did not occur at the hearing. The Superior Court
reasons that that all of Father’s tesmony and evidence
showed he was a minority owner, there was nothing in
the record to suggest anything to the contrary and thus
Father had no further burden to show that the businesses’
retenon of their earnings were “necessary to maintain or
preserve the business.” Thus, the Superior Court held that
the trial court erred by considering the retained poron
of Father’s ow-through income. The Superior Court
disagreed with Father that the trial court should not have
Case Notes
Addressing Flow-Through Income and Burden of Proof
connued on page 68
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
68
Colton v. Colton, 558 WDA 2021 (Pa. Super. 2022)
By Yoninah Orenstein
Relevant Facts:
Husband and Wife were involved in a contenous
divorce that proceeded to an equitable distribuon
hearing before a divorce hearing ocer. Following the
hearing, the hearing ocer issued a Report and Recom-
mendaon (“Report”) to which neither party led Excep-
ons. The Report was then incorporated into the nal
Decree in Divorce. Aer the Report became a nal Order,
Husband withdrew $75,000 from a home equity line of
credit (HELOC) on the former marital residence to pur-
chase a new house. Wife was aware of the HELOC during
the equitable distribuon hearing, but it had a zero
dollar balance at that me. She only learned Husband
drew on the HELOC at closing on the marital residence,
which occurred following the entry of the nal Order.
Wife immediately led for relief, seeking, among other
things, full reimbursement of the HELOC and $10,000 in
aorneys’ fees. The pares reached a global selement
agreement at the me of the hearing pursuant to which
Husband agreed to pay Wife $67,000, which reected the
$75,000 Husband took out of the HELOC minus the lump
sum amount Husband was awarded o the top of the
proceeds from the sale of the former marital residence
per the Report, plus counsel fees. It was further agreed
that Wife would receive all the remaining proceeds from
the sale of the former marital residence that were being
held in escrow. Payment to Wife was to be made within
14 days.
Shortly aer reaching the above agreement, Husband
requested a status conference and argued there was a
mutual mistake regarding the distribuon of the proceeds
from the sale of the marital residence. According to Hus-
band, he should have received 25% of the proceeds of
the sale, in addion to the lump sum payment from the
proceeds per the Report. While Wife agreed with Hus-
band’s interpretaon of the Report, she maintained that
the terms of the selement agreement were reached re-
gardless of the Report. The trial court requested that the
pares brief the issue as to whether there was a meeng
of the minds and whether the pares agreed to the terms
of the selement. Following oral argument, the trial court
determined there was no factual error, Husband was or-
dered to pay Wife the $67,000 within 120 days and Wife
would receive all of the proceeds from the sale of the
marital residence. Husband mely appealed.
No Mutual Mistake in Equitable Distribution
Agreement
connued on page 69
Case Notes
considered any of his ow-through income; even if distri-
buons are used to pay a tax liability it is income avail-
able for support. Spahr v. Spahr, 869 A.2d 548 (Pa. Super.
2005); 23 Pa.C.S.A. 4302. The case was remanded with
specic direcon that the trial court may only consider
that poron that was distributed to him.
Take Away:
This opinion reads like a refresher course on ow-through
income and retained/distributed earnings. On that basis
alone, it is worth the read-through. The case also informs
praconers that the burden of proof is not solely on the
business owner; the opinion suggests that it is possible
Father may not have met his burden of proof if there was
more exploraon into the informaon provided.
Stephanie Stecklair Taranno is an aorney with
Obermayer Rebmann Maxwell & Hippel LLP in their
Doylestown oce. Stephanie pracces family law in
Bucks, Montgomery, Philadelphia, Chester and Delaware
counes. Stephanie serves on the Council of the Pennsyl-
vania Bar Associaon’s Family Law Secon and regularly
volunteers to represent individuals in Bucks County pro-
tecon from abuse maers. Stephanie can be reached at
267-742-3365 and stephanie.stecklair@obermayer.com.
Addressing Flow-Through Income and Burden of Proof
connued from page 67
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
69
Case Notes
Assigning Student Loan Debt to the Non-Student
Spouse in Equitable Distribution: Evidence Regarding
Use of Loans for Household Expenses
Clark v. Clark, 586 MDA 2021 (Pa. Super. 2022)
By Vasiliki Gouliaberis
Summary:
In this unpublished opinion, the Superior Court pro-
vides guidance on the assignment of student loan debt
and its repayment to the non-student spouse in equitable
distribuon. The Court conrms prior precedent wherein
a non-student spouse is held responsible for a poron of
the other party’s student loan when the funds from the
loan were used for household expenses. The Court found
that while the trial court did not abuse its discreon in
holding Husband responsible for Wife’s loans, further evi-
dence was needed to show the amount of the loans used
for household expenses. The Court remanded the maer
for addional evidence on that issue.
Facts and Procedural History:
Husband and Wife (“the pares”) were married
for 16 years and had three children together. During
the pares’ marriage, Wife worked as a schoolteacher,
but the pares later mutually decided that Wife should
aend nursing school. While their marriage was intact,
Wife aended nursing school and took out student loans
to help facilitate her educaon and also to contribute to
No Mutual Mistake in Equitable Distribution Agreement
connued from page 68
connued on page 70
Issues on Appeal:
On appeal, Husband reiterated his argument that
the selement was based on a mutual mistake, or in the
alternave, it was a result of his own unilateral mistake of
which Wife was aware, or should have been aware. Based
on the foregoing, Husband sought to revise the sele-
ment agreement and have the proceeds from the sale of
the marital residence distributed in accordance with the
Report.
Holding:
In a non-precedenal decision, the Superior Court
armed the lower court’s ruling. The Superior Court
ruled that the record was clear – Wife negoated the
selement for a lump sum amount which was not based
on the Report. While Husband’s argument assumed Wife
calculated the terms of the selement based on the Re-
port, the Court reasoned that the selement addressed
more than just the division of the proceeds of the sale
of the marital residence. It also addressed division of
marital debt (which did not exist as of the me of the
Report), Wife’s equitable interest in Husband’s new home
and her aorneys’ fees. Consequently, Husband failed to
demonstrate by clear and convincing evidence that there
was a mutual mistake as to an essenal element of the
selement agreement. The Court also rejected Husband’s
alternate argument that he was entled to reformaon
of the selement because Wife knew, or should have
known, he was mistaken about the terms of the Report.
The Court concluded that Husband’s argument incor-
rectly assumed that the global selement agreement
was based on the terms of the Report and there was no
indicaon that Wife knew or should have known Husband
thought the selement agreement was simply reinforcing
the terms of the Report. Instead, the selement agree-
ment reected a global selement resolving all pending
claims.
Author’s Comments:
The Court’s decision armed the established legal
principle that a contract can only be rescinded based on
mutual mistake if that mutual mistake formed the in-
ducement to the contract and the pares can be placed
in their former posion. Here, Husband failed to demon-
strate a mistake induced Wife into the global selement.
A nding in favor of Husband in the instant case would
have rewarded his bad behavior and allowed him to avoid
his contractual obligaons under a validly formed agree-
ment.
Yoninah R. Orenstein is a shareholder at Flaster Green-
berg P.C., where she pracces family law. She serves on
the Execuve Commiee of the Nicholas Cipriani Inn of
Court and can be reached at Yoninah.Orenstein@aster-
greenberg.com or 215-918-9878.
Case Notes
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
70
household expenses.
An equitable distribuon hearing was held on Feb.
4, 2020, and the court issued an Equitable Distribuon
Order, wherein Husband was to pay $19,884.97 of Wife’s
student loans and Wife was ordered to pay $14,077.20 of
the student loans. (“Of the three student loans in play, this
court assigned the full poron of Wife’s NelNet account
to [Husband] in the amount of $16,601.05, and half of the
poron of Wife’s [Geisinger] student loan in the amount of
$3,283.92. Wife was assigned half of the poron of Wife’s
[Geisinger] student loan in the amount of $3,283.92 and
the full amount of her Pennian student loan in the amount
of $10,404.00.” Trial Ct. Op., 7/15/21, at 1-3.)
Husband led a moon for reconsideraon and a
reconsideraon hearing was held on Nov. 16, 2020. At that
hearing, Wife provided credible tesmony that porons
of her student loans were used for household expenses.
On April 15, 2021, the trial court issued an Order wherein
Husband was once again held responsible for repayment of
the student loans in the amount of $19,884.97. Husband
appealed the April 15, 2021, decision.
Issue:
Whether the trial court abused its discreon in di-
recng Husband to pay a poron of Wife’s nursing school
tuion loans.
Holding/Analysis:
In this non-precedenal decision, the Superior Court
vacated and remanded the maer to the trial court for fur-
ther proceedings, but concluded that the trial court did not
abuse its discreon in direcng Husband to pay a poron
of Wife’s nursing school loans.
The Court drew parallels to its decisions in Mundy v.
Mundy, 151 A.3d 230 (Pa. Super. 2016) and Hicks v. Kubit,
758 A.2d 202, 205 (Pa. Super. 2000) and conrmed that the
non-student spouse is in fact responsible for repayment
of this marital debt when there is evidence that a poron
of the loan funds were used for household expenses. As in
Hicks, the student spouse in this maer provided credible
tesmony that she used a poron of the loans for house-
hold expenses. Unlike Hicks, the student spouse did not
provide evidence of deposing surplus loan funds into a
joint bank account. Unlike Mundy, there was no tesmony
that the student spouse’s loans were paid by her employer.
The Superior Court explained that the lower court
failed to “dierenate between student loan proceeds that
went directly to Wife’s educaon expenses or surplus pro-
ceeds used for noneducaonal expenses” thereby necessi-
tang further proceedings. Clark v. Clark at 10.
The Court also pointed to its Hicks decision and its re-
liance on the trial court’s record, which included evidence
that a poron of that loan was deposited in a joint account
and used for household expenses.
Takeaway and Impressions:
The Superior Court conrmed prior precedent,
wherein a non-student spouse was held responsible for
repayment of a student loan, but also provided guidance
to the lower court regarding evidence needed for such a
nding. It provides best pracce guidance for praconers
aempng to assign student loan debt repayment to the
non-student spouse. Specically, the student spouse needs
to provide evidence and tesmony regarding the existence
of surplus funds and the specic use of those funds for
household expenses, along with other evidence such as
deposing the funds into a joint bank account.
Vasiliki Gouliaberis is an aorney at Eckell, Sparks, Levy,
Auerbach, Monte, Sloane, Mahews & Auslander PC in
Media, Pennsylvania. She is a member of the Family Law
Secon of the Delaware County Bar Associaon and a
member of the Adopon Commiee of the Pennsylvania
Bar Associaon Family Law Secon. Vasiliki has focused
her pracce on custody, divorce and adopon maers. She
can be reached at vgouliaberis@eckellsparks.com or (610)
565-3700 x111.
Case Notes
Assigning Student Loan Debt to the Non-Student Spouse in Equitable
Distribution: Evidence Regarding Use of Loans for Household Expenses
connued from page 69
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
71
Dunn v. Van Eck, 710 WDA 2021, 2022 WL 684578
(Pa. Super. 2022)
By Alexa Terribilini
Factual Summary:
The pares were married when Wife led a protec-
on from abuse (“PFA”) peon in November 2019 in
Allegheny County. Aer a hearing in March 2020, Wife
was granted a nal PFA for three years and Husband was
evicted from the home.
While the PFA was pending, Husband led for APL in
December 2019. At the APL hearing in August 2020, Wife
argued that Husband was not entled to support because
he abused her, as demonstrated by the PFA order. The
hearing ocer, however, recommended that Husband’s
claim for APL be granted.
In September 2020, Wife led excepons, claiming
that the hearing ocer erred by failing to make a down-
ward deviaon under Rule 1910.16-5. Wife’s excepons
regarding APL were denied by the trial court in November
2020. The pares ligated support and divorce maers
for several months unl the divorce decree was entered
in June 2021. Wife appealed, challenging the trial court’s
award of APL to Husband.
Key Issues:
Wife raised two issues on appeal. First, she argued
that Husband forfeited his entlement to APL by com-
ming “abuse” under the PFA statute. To award APL to a
party who commied abuse under the PFA statute would
be against public policy. Second, Wife argued that the
trial court erred and/or abused its discreon by failing to
deviate from the support guidelines when determining
Wife’s APL obligaon.
Legal Analysis:
In her rst issue, Wife argued that Husband should
not receive APL as a maer of public policy because of
the personal injury crime excepon to APL in 23 Pa.C.S.A.
§ 3702(b). Under 23 Pa.C.S.A. § 3702(b), a party who has
been convicted of certain personal injury crimes against
the other party is not entled to APL. The denion of
a personal injury crime is set forth under 23 Pa.C.S.A. §
3103. The Superior Court, in this non-precedenal deci-
sion, noted, “[W]hile a personal injury crime includes a
violaon of a PFA order, it does not include the issuance
of a PFA order.” In her brief in support of excepons, Wife
argued that 23 Pa.C.S.A. § 3702(b) was designed to pre-
vent the possibility of the abused spouse having to pay
APL to their abuser. On appeal, she argued that allowing
the vicm to pay APL to their abuser frustrates the pur-
pose of the PFA statute.
The trial court stated that pung a PFA order on
the same level as a personal injury crime would create
new law and it, “would be an inappropriate expansion of
the applicaon of the excepon beyond the legislave
intent.” The Superior Court agreed that a plain reading of
the statute and the denion of a personal injury crime
do not exclude Husband from being awarded APL be-
cause a PFA order was entered against him.
In her second issue, Wife argued that, if Husband is
not precluded from receiving APL, then the trial court
abused its discreon in failing to deviate downward from
the guidelines in determining the APL obligaon. Wife
cited to the APL guidelines under Pa.R.C.P. 1910.16-5(b)
(1-9) and relied on factor nine, “other relevant factors,” in
her argument to deviate downward.
The Superior Court stated that an award of APL is
meant to “equalize” the pares so that they are able to
eecvely parcipate in the divorce proceedings. Further,
the guidelines are based on economic circumstance and
available resources, so the trial court should focus on
economic consideraons when deviang from the guide-
lines. Otherwise, it would defeat the purpose of APL.
At the me of the hearing, Husband was not em-
ployed and had not worked in several years. Husband’s
behavior that led to the PFA order was nonviolent; it was
a singular event; and Wife was not physically harmed.
The trial court stated that this does not mean a PFA order
is unimportant, but it is only one factor to consider when
awarding APL. Under these facts, the Superior Court held
that there was no abuse of discreon in awarding APL
without a downward deviaon.
In a dissenng opinion, Judge Murray found that the
trial court abused its discreon by disregarding Husband’s
abuse and the PFA order. He noted that, in addion to
the “catch all” provision in 1910.16-5(b), the rule includes
other non-economic factors, such as number eight, the
length of the marriage. Judge Murray also stated that the
excepons for APL under 23 Pa.C.S.A. § 3702(b) include
non-economic consideraons, including the excepon for
personal injury crimes. Finally, he cited to Childress v. Bo-
gosian, 12 A.3d 448, 463 (Pa. Super. 2011) for the prop-
osion that courts should consider several other factors
when ruling on a claim for APL, including “the character,
situaon, and surroundings of the pares.” Judge Murray
would have reversed the trial court and deviated down-
ward from the guidelines.
connued on page 72
Case Notes
Is the Entry of a PFA Order a Deviation Factor Under
the Support Guidelines?
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
72
Comments/Impressions:
The denion of a personal injury crime is clear that
violang a PFA order, not just having one issued, is re-
quired for disentlement of APL. Perhaps the Pennsylvania
General Assembly should consider amending Secon 3103
of the Divorce Code to include the entry of a PFA order to
its list of ten personal injury crimes. However, this could
discourage pares from entering into PFAs and potenally
prevent vicms from obtaining protecon. The trial court
stated that the entry of a PFA order was just one factor to
consider in making an APL award, but if that is the case,
then how will PFA orders be evaluated in future cases?
Either APL is based on economic factors, or on the pares’
behavior, or on both. But if behavior can be considered,
then it is likely that another PFA case will result in a possi-
bly dierent adjudicaon. A more powerful case for down-
ward deviaon from the factors could arise where the
abuse had a nancial impact on the vicm, such as having
to take o work, losing a job or having to move. This case is
non-precedenal; it remains to be seen if a case is decided
where the facts are so egregious that the trial court denies
APL based in part on the entry of the PFA order.
Alexa is an associate at Momjian Anderer LLC in Philadel-
phia. Alexa previously served as a law clerk to the Honor-
able Viktoria Krisansson in Philadelphia Family Court. She
can be reached at aterribilini@momjiananderer.com or
215-546-3707.
Is the Entry of a PFA Order a Deviation Factor Under the Support
Guidelines?
connued from page 71
What to Expect in Partition Actions Involving
Unmarried Couples
Theirry v. Yamulla, 272 A.3d 477 (Pa. Super. 2022)
By Jordan M. Gregro
Summary of Facts/Procedural History:
In September 2017, Ms. Yamulla purchased real prop-
erty known as the “Charter Club Property” in Doylestown,
Pa. At the me of the purchase, the pares were un-
married, although contemplang marriage. Ms. Yamulla
purchased the Property with her separate funds and the
Charter Club Property was inially tled in her individual
name.
In October 2017, the pares executed a deed transfer-
ring tle of the Charter Club Property from Ms. Yamulla’s
individual name to both of their names, as joint tenants
with right of survivorship. Ms. Yamulla paid all costs
associated with the tle transfer, including recording fees
and the transfer tax. Ms. Thierry did not contribute any
funds to the purchase of the Charter Club Property or to
the maintenance and upkeep of the Charter Club Property
following the transfer.
Because of the turbulent nature of their relaonship,
Ms. Thierry never actually moved into the Property. She
also was never given free access, and Ms. Yamulla changed
the locks and the security codes numerous mes.
The pares separated approximately one year later,
in November 2018. Shortly thereaer, Ms. Thierry led
a complaint in equity requesng paron of the Charter
Club Property and 50% of the total value of the Charter
Club Property due to her 50% ownership interest. Ms.
Yamulla answered, arguing Ms. Thierry was not entled
to any monies as the transfer of tle into joint names
was a gi condioned upon marriage. Ms. Yamulla also
sought reimbursement of the costs she incurred for the
acquision, transfer, repair, maintenance, preservaon
and upkeep of the Charter Club Property, as well as for the
connued on page 73
Case Notes
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
73
What to Expect in Partition Actions Involving Unmarried Couples
connued from page 72
expenses paid. Notably, at the me of Ms. Thierry’s ling,
the Property had increased in value by $20,000.
A hearing was held in October 2020, aer which the
hearing ocer recommended the paron of the Charter
Club Property. The hearing ocer also recommended
Ms. Thierry be awarded 50% of the increase in value of
the Charter Club Property in the amount of $10,000,
rather than y percent of the total value, based upon
principles of equity. Further, the hearing ocer denied
Ms. Yamulla’s request for reimbursement. The trial court
armed the Master’s recommendaon, and both pares
appealed.
On appeal, Ms. Thierry argued the trial court erred
by “using equitable principles to override her legal right
to 50 percent of the Charter Club Property’s net value as
a joint tenant with right of survivorship pursuant to the
terms of the deed.” Ms. Yamulla argued the trial court
erred by awarding Ms. Thierry 50% of the increase in
value of the Charter Club Property, as the condion of
the gi transfer was never met. Ms. Yamulla also argued
the trial court erred in denying her request for reim-
bursement of the costs she incurred with respect to the
Charter Club Property.
Issue:
1. Whether the trial court abused its discreon in
awarding Ms. Thierry y percent of the increase in value
of the Charter Club Property in the paron acon.
2. Whether the trial court abused its discreon in
denying Ms. Yamulla reimbursement for the costs she
incurred in the acquision, transfer, repair, maintenance,
preservaon and upkeep of the Charter Club Property.
Holdings/Analysis:
In a non-precedenal decision, the Pennsylvania Su-
perior Court armed the trial court’s award of y per-
cent of the increase in value of the Charter Club Property
to Ms. Thierry. In doing so, the Court held that pursuant
to Pennsylvania Rule of Civil Procedure 1557, “the entry
and recording of an order direcng paron…terminates
a joint tenancy.” See Pa. R.C.P. 1557; see also Kapscos v.
Bensho, 194 A.3d 139,142 (Pa. Super. 2018). Further,
once the joint tenancy is terminated, then the trial court
is free to “balance the equies to decide what form the
paroning will take,” and to “calculate owelty based on
the equies of what each person invested in the subject
real property.” Id. at 142-143; Pa. R.C.P. 1570. Therefore,
in this case, the Court found that once the trial court
entered the order paroning the Charter Club Proper-
ty, the joint tenancy was terminated, and the trial court
could award Ms. Thierry an equitable share of the Charter
Club Property based on her contribuons. Because Ms.
Thierry contributed “next to nothing towards the [p]rop-
erty, nor could she freely access the property,” the Court
concluded the trial court did not abuse its discreon in
awarding Ms. Thierry only 50% of the increase in value.
The Court denied Ms. Yamulla’s claim that Ms. Thier-
ry should not even receive 50% of the increase in value of
the Charter Club Property, on the basis that Ms. Yamulla
failed to prove the transfer of tle was a condional gi.
Specically, there was nothing in the deed seng forth
condions of the transfer of ownership, and the trial
court made appropriate credibility determinaons as
to the existence of the condions of the transfer based
upon the live tesmony of the pares.
The Superior Court also armed the trial court’s
denial of Ms. Yamulla’s request for reimbursement for
the costs and expenses she incurred on the Charter Club
Property, on the basis that it is well-seled that neither
party is entled to reimbursement for acquision costs
in a paron acon, and the record was devoid of any
evidence to support recovery of expenses necessary to
preserve and protect the Charter Club Property. Thus, the
Superior Court upheld the trial court’s decision.
Comments/Impressions:
This case provides unique insight into the court’s
ability to divide real property in paron acons between
unmarried couples. Through this case, it is clear that legal
tle does not necessarily guarantee an individual a cor-
responding share of the value of the property, should the
pares separate. This is contrary to popular belief as most
unmarried couples expect to receive a share proporon-
ate to their ownership if the relaonship ends. Therefore,
it seems prudent for aorneys to place any agreement on
the division of the value of the property, or condions of
transfer, directly into the deed, should a separaon occur.
Case Notes
connued on page 74
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
74
By Adam H. Tanker
Congratulaons to Gerald L. Shoemaker, shareholder at
Hangley, Aronchick, Segal, Pudlin & Schiller in Plymouth
Meeng, on receiving the 2022 David M. Rosenblum
LGBTQ+ Public Policy Award from the Pennsylvania Bar
Associaon LGBTQ+ Rights Commiee.
Kindly submit all news, updates, rm addions or moves,
life events, and anything else that you would like consid-
ered for inclusion in Bar Review to Adam Tanker at Adam.
Tanker@obermayer.com.
Jordan M. Gregro is an associate at Shemtob Draganosky
Taylor PC in Blue Bell, Pennsylvania. She concentrates her
pracce exclusively in the area of family law and related
issues. A graduate from Franklin and Marshall College,
she received her Juris Doctor from Villanova Universi-
ty School of Law in 2016. Ms. Gregro was selected as
Pennsylvania Super Lawyers Rising Star for the years
2020 through 2022. She is a member of the Doris J. Freed
American Inn of Court, the Pennsylvania Bar Associaon
Family Law Secon and the Montgomery Bar Associaon
Family Law Secon. She is also a past board member of
the organizaon formerly known as Pennsylvania Lawyers
for Youth. She can be reached at (215) 542-2105 or
jgregro@shemtoblaw.com.
What to Expect in Partition Actions Involving Unmarried Couples
connued from page 73
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 dep-
uty district attorney for the Bucks County 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 University
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. His email is Adam.Tanker@obermayer.com and his phone
is 215-606-0754
Case Notes
Mark Your Calendars!
Family Law
Winter Meeng
Jan. 13-15, 2023
The Hotel Hershey
Hershey, PA
Pennsylvania Bar Association Family Law Section • Family Lawyer • Summer 2022
75
By Adam H. Tanker
1. Full name?
Abigail Claire Schiela Bukowski
2. How did you become interested in family law/why did
you choose this area of law?
While I didn’t consciously know I would be a family law
aorney from a young age, I should have. I was always
mediang disputes between my friends growing up, and
as a resident assistant in college, one of my favorite parts
of the role was guiding my residents through interper-
sonal conicts. As an aorney, I love having the opportu-
nity to constantly meet new people and to guide people
through what is generally a dicult me to help set
themselves up for joyful futures.
3. How long have you been praccing and where?
I’ve been praccing since October of 2021 in Doylestown
at Eastburn and Gray PC.
4. Why did you choose to live and pracce in Bucks
County?
I grew up in Bucks County and I graduated from CB West.
While I did move to Western Pennsylvania for college
(Grove City College), Bucks County has and always will be
home.
5. What’s your favorite thing about Bucks County?
The people and the memories. Most of my major life
events happened in Bucks County, and it’s really fun to
be able to walk around town and reminisce about each of
those. I also love living in a place where I have long-term
connecons with so many people and have also had the
opportunity to enjoy and celebrate their major life events
with them for a long period of me.
6. What’s your perfect vacaon?
I don’t know that I have an idea of one perfect vacaon.
I have rarely been on a vacaon to the same place more
than once, and I enjoy vacaons that include a lot of
sight-seeing, walking, and learning as much as vacaons
that include a lot of lounging and reading.
7. What’s your favorite book?
Either Jane Eyre or Harry Poer and the Order of the
Phoenix.
8. What’s your favorite TV show?
“How I Met Your Mother”
9. What’s your favorite movie?
“Miss Congeniality”
10. What’s your favorite quote?
“There are far, far beer things ahead than any we leave
behind.” – CS Lewis
11. What’s one thing that we don’t know about you?
I studied entrepreneurship in college and parcipated in
several mini-startups each year. I don’t think any of them
have made it big yet, but I know some are sll being pur-
sued by my classmates and I’m excited to see what they
all become.
12. What are your pet peeves in terms of praccing
family law?
When lawyers contribute unnecessarily to conict be-
tween pares.
13. Who would play you in a movie about your life?
Anne Hathaway
Get to Know a Member: Abigail C.S. Bukowski
Abigail C.S. Bukowski
Get to Know a Member
