The PA Supreme Court – Policy Maker and Administrator of PA Courts and Disciplinary Enforcement for Attorneys: Part 5 of the series, “Why do we Elect Judges, and Why Should I Care?”

Posted on by Barbara J. Shah

Although it sounds like the PA Supreme Court is the court that makes the final “call” on appeals in PA (and that is technically true), but its duties extend far beyond supervision of the outcomes of appeals decided by PA appellate courts.  The PA Supreme court is one of the oldest courts in the nation, having been established in 1722, when PA was a colony of Great Britain.  The “modern” PA Supreme court was established in 1864. There are 7 judges (called “justices”) on the Court, all elected in partisan elections for 10-year terms, and thereafter are subject to non-partisan “retention” (yes-no) elections by the voter every 10 years.  The current make-up of the court is 5 Democrats and 2 Republicans, three of the Democrats having been elected in 2015.  One seat is up for election this year due to the resignation of Justice Michael Eakin. Currently, interim Justice Sallie Mundy, a justice appointed by the governor and confirmed by the PA legislature after Eakin’s resignation, is serving until the election this November. The salary for 2017 (adjusted annually for the cost of living) for Justices of the PA Supreme Court is $206,054, and they are eligible to participate in PA’s generous defined benefit pension plan.

Although the PA Supreme Court can rule on appeals from the Superior and Commonwealth Courts, their acceptance of appeals is strictly discretionary (except for appeals of death sentences). Statistics published by the Supreme Court indicate that for the years 2008 – 2014, an average of 2,000 requests for appeals were filed each year. The highest number of appeals which the Supreme Court accepted for consideration averaged less than 125, and the number of appeals granted (reversing the ruling of a trial or appellate court) in any year during this period was 52 in 2012.

A substantial portion of the work of PA Supreme Court justices is administrative. Through the AOPC (Administrative Office of Pennsylvania Courts), they oversee the work of every court in PA, including the district judges throughout the state, Common Pleas and Appellate Courts, and traffic court.  They write and enforce the rules relating to judges’ conduct through the Judicial Conduct Board, and they admit, regulate, and discipline lawyers who practice in PA.  The Disciplinary Board of the Supreme Court of PA enforces the Rules of Professional Conduct which all PA lawyers must follow, and they administer penalties, including suspension, disbarment, and fines.  If the Disciplinary Board recommends a punishment for a lawyer, the PA Supreme Court handles all appeals and makes the final decision on these punishments – sometimes they even increase the severity of the recommended punishment!  An annual fee paid by lawyers each year is put into a fund to cover client funds mishandled or stolen by lawyers, which is also administered by the Supreme Court.

A little-known fact about the administrative duties of the PA Supreme Court justices is that they write the PA Rules of Civil (and Criminal) Procedure, which provide the framework within which the laws passed by the PA Legislature are enforced, and to make sure that the procedure afforded litigants and defendants by the courts is constitutional.  In a case where there is a conflict between the court rules and the law, the PA Supreme Court has ruled that court rules override the law.  There is a statewide computerized case tracking system for both civil and criminal cases, although for now individual courts of common pleas determine how and whether the court filings in their courts is available to view online.

One of the additional roles of the PA Supreme Court relates to election districts for PA state senate and legislative districts.  PA law does require that they be fairly compact and contiguous, but crafty politicians still manage to gerrymander election districts to favor one party over another.  In PA, not only does the PA Supreme Court determine whether the redrawn election districts comply with the law, they have the power to appoint the chairman of the redistricting commission, which is otherwise divided evenly between the two parties. (This commission does not draw PA Congressional Districts, which are among the most gerrymandered in the nation.)

Dwayne Woodruff, a former Pittsburgh Steelers player and a judge of the court of Common Pleas in Allegheny County for a number of years, is the only Democrat seeking the nomination for Supreme Court Justice in 2017.  He is a person of color and has a history of strong advocacy for juvenile justice; if elected, he would only be the second minority judge elected to any appellate court in PA. Sallie Mundy, the interim justice currently serving, is running as the only Republican candidate for the office.  It seems likely that a substantial amount of money will be spent for the general election this November, since there is no limit on expenditures for judicial races.

Rocked by scandal and the resignation of two justices over the sharing of pornographic emails and videos in recent years, as well as the resignation of one justice after her conviction for public corruption, the PA Supreme Court would surely benefit from a merit-based system of judicial selection (which would require an amendment of the PA
Constitution), but as of now, there appears to be no move in that direction.  Until then, the voting public must rely on the ratings of the state and local bar associations to properly “vet” their choices.  For 2017, Judge Woodruff has been rated as “recommended” by the PA Bar Assn, and Justice Mundy has been rated as “highly recommended.”

 

 

Superior and Commonwealth Courts in PA – Courts of Last Resort: Part 4 of the series, “Why do we Elect Judges, and Why Should I care?”

Posted on by Barbara J. Shah

“I’m going to appeal…” How often do we hear this declaration when a litigant is disappointed in the decision by a civil court or jury, or when a defendant is convicted in a criminal case in Common Pleas Court?   The good news is that there is a court which will automatically grant the disappointed litigant or defendant the right to appeal the decision they are complaining about.  The bad news is that the chances of being successful on appeal are slim.

The court with the widest jurisdiction for appeals is the PA Superior Court, which was created by the PA Constitution in 1895.  It is the general appeals court from almost all civil and criminal cases tried by Common Pleas courts in PA, including the Orphans Court (wills, estates, guardianships, adoptions, mental health commitments, trusts, and probate issues); criminal courts (cases brought by the district attorney against individuals who are accused of breaking one or more PA laws); and Civil cases (for money damages relating to contract disputes, auto or other accidents, landlord-tenant disputes, employer-employee disputes (except for unemployment compensation cases), and most other types of disputes between individuals or corporations who reside or do business in PA.  In addition, the civil docket includes divorce, support, custody, property division and alimony, and juvenile court cases.

Anyone who is unhappy with a final verdict or judgment in Common Pleas court has the automatic right to appeal to the Superior Court; all that is necessary is to file a “Notice of Appeal” with a copy of the docket (court listing showing the outcome for that case) and pay the required fee (usually less than $300) at the Prothonotary or court clerk office for that county in which the decision was made.  There will be additional paperwork to fill out to proceed with the appeal, and once the trial court has explained the reason for its judgment or verdict, the appellant will have to file a brief (legal argument giving the reason why the trial court’s decision was not in accordance with PA law or procedure.) Then argument will be scheduled before a panel of 3 Superior Court judges (there are 18 judges in all).  Superior Court sessions are usually held in Pittsburgh, Harrisburg, and Philadelphia, but occasionally they are held in other parts of the state.

At the argument, a formal appearance before the 3-judge panel by the litigant, defendant, or his lawyer, and the opposing side (a District Attorney in criminal cases), the parties can argue ONLY matters of record, that is, testimony, evidence, and rulings made by the court on or before trial in the Common Pleas court.  This is often a surprise to the party taking the appeal – they want to put in testimony and evidence not contained in the original trial record.  Even the issue of credibility of witnesses cannot be argued, except in a few extreme cases, as the court rules specify that the trial court’s decision on credibility of witnesses cannot be disturbed on appeal.

What, then can be appealed?  Procedure, rulings on evidence or testimony, claims that the judgment or verdict was not proper under existing PA law.  Since our law consists both of what is written in our statutes AND on court rulings on these issues in prior cases on the same or similar issues, often the law is not as clear cut as it may seem.  And, unfortunately, this is an area where non-attorney litigants who try to represent themselves rarely succeed.  The legal standard for most appeals to Superior Court is “abuse of discretion,” that is, from reading the trial record and hearing the argument, the 3-judge panel finds that the trial court’s judgment or verdict is “manifestly unreasonable.”

It does happen now and again that there is a “rogue judgment” from a Common Pleas Court judge which needs to be corrected, or that a good judge has made a mistake of law. Not all appeals are rejected; however, the rate of success on appeal is poor.  In 2014, published statistics by the Superior Court indicate that 79% of the trial court decisions were affirmed, and only 13% totally reversed, with the balance some other type of disposition, such as being dismissed or partially granted.

Superior Court judges, like Common Pleas Court judges, are elected in political contests when there is a vacancy.  This year in PA, there are 4 vacancies among the 18 Superior Court positions.  Judges are elected in these partisan elections for a 10-year term, and at the end of their term face a non-partisan “yes or no” retention election to keep their seats on the bench.  Most of the candidates are unknown to the voters, who must depend on word of mouth, political party affiliation, or judicial rankings by a newspaper or local or state bar association.

Commonwealth Court, a very unique court in the U.S. state judicial system created in 1965,  is similar in almost every way to the Superior Court, except that they hear appeals from Common Pleas court cases in which the Commonwealth of PA or any of its political subdivisions, including cities, counties, townships, water districts, etc., are  litigants (other than criminal appeals); in addition they hear appeals from administrative courts such as workers compensation  and unemployment compensation decisions.  In some cases where the Commonwealth of PA itself is a litigant, Commonwealth acts as a trial level court. There are 15 Commonwealth Court judges; there are two vacancies which will be filled by voters this year.

Although it is technically possible to appeal Superior and Commonwealth Court decisions to the PA Supreme Court, the PA Supreme Court takes very few appeals, and even those almost always relate to public policy questions, rather than the facts and rulings in a specific case. This means that the “buck” literally stops with these appellate court judges. Their salaries for the year 2017 are $194,422, (most for administrative judges of these courts), along with health insurance and a defined benefit pension plan similar to that of Common Pleas Court judges, except that since their pension benefit is based partially on their final salaries, they will normally get a much larger pension than Common Pleas Court judges when they retire.

Although there have been some attempts over the years by groups trying to institute a merit selection system for appellate judges, so far, these efforts have failed to gain traction.  However, in a recent interview, one sitting PA appellate court judge indicated that with the U.S. Supreme Court “Citizens United” decision which allows huge amounts of money to pour into PA judicial races, the possibility of “stacking” our courts with judges who have strong connections to interest groups means that it is time to give merit selection greater consideration.

 

 

 

Where the Rubber Meets the Road – Common Pleas Courts in PA: Part III of the series, “Why do we elect judges, and Why should I care?”

Posted on by Barbara J. Shah

The Courts of Common Pleas, also referred to as trial courts, are the county courts of Pennsylvania.  Each county has one except for the 7 judicial districts that include 2 counties. While it is true that Magisterial District Judges hold trials on some smaller civil and criminal cases, aggrieved litigants or defendants have a right to appeal, that is, have the matter re-heard before a judge of the Court of Common Pleas, and that hearing is “de novo,” meaning that whatever happened at the MDJ level is not considered.  An appeal to the Court of Common Pleas is a” do-over.”  However, there is no “do-over” once a judge of the Court of Common Pleas has entered a judgment or a verdict.   It is a final order, and although appeals may be taken from Common Pleas judgments and verdicts, it is not a “do-over.”  An appeals court can only reverse a common pleas judge on an error of law, a procedural mistake, or an “abuse of discretion,” meaning that no person hearing that testimony (and believing the witnesses he or she heard) should have arrived at such a decision.  All witness truthfulness judgments are left to the judges. This is a very tough standard to overcome.

Statistics published by the PA Superior Court (the next level of appeals for most cases heard by Common Pleas Courts) for 2014 indicate that 79% of appeals are denied, that is, the decisions of the trial court are affirmed, and that only 13% of appeals result in a reversal.  The other outcomes are cases in which appeals are withdrawn, quashed, or disposed of in another way.  What this means to the litigant/defendant is that what happens to their case before a Common Pleas judge is most likely the final outcome.

Common Pleas courts have several major assignments, often split or rotated among the judges of that district, those being Orphans Court (wills, probate estates, guardianships, and adoptions), Criminal court (prosecutes crimes in the name of the Commonwealth), Family Court (divorce support, custody, and juvenile court), and Civil division (where litigants sue one another for damages, eviction, or other money remedies.) Philadelphia and Pittsburgh being the two largest population centers in PA, there are between 1 – 93 judges in PA judicial districts. (93 being of course Philadelphia), Obviously in one-judge districts, one judge wears all the “hats.”

For civil lawsuits, MDJ’s can adjudicate cases up to $12,000 worth of damages, but their decisions can be appealed to Common Pleas Courts, who have “original jurisdiction” over cases above $12,000 in damages.  Millions of dollars may be at stake, or maybe a few thousand.  All procedures are the same, regardless of the size of the case.  (The one exception to this is that cases with claimed damages up to $40,000 are usually first heard by a panel of three “arbitrators” (lawyers who sit in panels of 3) and make a recommendation for a judgment or nonsuit.  However, as in appeals from MDJ’s, either party can appeal the arbitrator’s recommendation for a “de novo” hearing before a judge.

Orphans Court judges hear cases relating to wills, alleged incapacity, termination of parental rights for adoption proceedings, probate of estates, and issues relating to trusts.

Family Court judges decides issues relating to divorce, property distribution related to divorce, spousal and child support, and child custody.  They also preside over juvenile matters, from truancy to juvenile delinquency (crimes committed by children), and cases in which children may be endangered by their parents or persons in their homes.

Civil Division judges hear appeals from MDJ traffic court cases, as well as presiding over (and often trying to settle) litigation between parties, including traffic accidents, breach of contract cases, and any other sorts of cases in which one individual or corporation is seeking damages from another.

Knowing then, that Common Pleas Court judges have this much power over the lives of the citizens of their county/judicial district, who they are, how are they selected, and retained in office should be a matter of great concern to the voting public. Unlike MDJ’s, candidates for Court of Common Pleas must be lawyers admitted to practice in PA, and in good standing with the PA Supreme Court’s disciplinary system, which includes paying annual fees, maintaining malpractice insurance, and earning 12 hours of continuing legal education each year.  They are elected to 10-year terms, running and Republicans or Democrats (but, as with MDJ candidates, they are permitted to cross-file, that is, run as both a Republican and a Democrat).  Once elected, they do not have to run again. At the end of their 10-year terms, sitting judges are subject to a “yes or no” retention election.  Since this system was established, there is over a 99% rate of retention of PA judges seeking to retain their seats.  Their salaries, adjusted for the cost of living each year, are $178,868 per year for 2017, plus a generous pension system, on which they can retire as early as age 60 with 5 years or more of service, at 100% of their final salary.

How can Pa voters determine who is an appropriate candidate for Common Pleas Court?  This is the subject which has created some controversy over the years.  Many states select all their judges through some merit selection system, as they do for federal courts.  PA elects every judicial position.  In lieu of knowing all the candidates (a nearly impossible task for most voters), they are left to rely on the recommendation of their friends and neighbors, the political parties, and, hopefully, judicial candidate recommendations based on interviews conducted by a state or local bar association and publicized by them.  Judicial temperament, fairness, experience, legal knowledge, and other factors which are scrutinized by their ratings should be the most influential.  Political party recommendations generally reflect the political contacts or activity by a candidate, which has little to do with their qualifications for the position of Common Pleas Court judge.  Sometimes the candidates with the most money who can run political TV advertising or who mail out their ads to voters will get the nod, only because the voters have seen or heard their name. Most voters who go to vote for judges feel entirely in the dark about the actual qualifications of the judicial candidates.

Obviously, it is tough to be a voter making a decision on PA Common Pleas Court judges, but given the importance of this position, and the fact that the elected candidate will probably keep that position until retirement, makes it very important.

Magisterial District Court– The Real People’s Court: Part II of the series, “Why Do We Elect Judges and Why Should I Care?”

Posted on by Barbara J. Shah

Magisterial District Judges are usually the first and often the only representative of the judicial system that most of the citizens of their district have contact with.  There are 517 Magisterial District Judges in PA, in districts determined by the Supreme Court of PA.  They were formerly called District Justices, Magistrates, Magistrate District Justices, and Justices of the Peace, a historic term.   Their pay for 2017 is $89,438 per year, in addition to health insurance benefits and membership in the PA Employees Retirement System.

What is interesting about this judicial office, called a “Minor Judicial Office” by the PA court system, is that Magisterial District Judges don’t have to be lawyers.  Candidates for the minor judiciary need only be 21 years of age, have lived in that Magisterial district for 1 year, and to have successfully completed a 4-week course of study given by the Minor Judiciary Education Board, if they are not licensed lawyers.  When you consider what Magisterial District Judges do, it seems surprising.

The kinds of cases that comes before the minor judiciary vary greatly.  Civil cases up to $12,000, which include a majority of landlord-tenant disputes, are within their jurisdiction.  On the criminal side, MDJ’s handle arraignments and hearings, the first court appearance for people charged with serious criminal offenses. Minor criminal offenses, such as traffic citations and non-traffic citations for violations of ordinances.  These kinds of violations include issues such as municipal weed control, grass-cutting, snow shoveling, and building code violations.

Most MDJ’s also perform marriage ceremonies.  In Pittsburgh District 35 (5-2-35, covering Pittsburgh Wards 7 and 14), one of the issues in the upcoming May 16 primary is that the sitting MDJ, Daniel Butler, does not perform marriage ceremonies.

MDJ’s handle emergency protection from abuse petitions filed by persons who believe they are in immediate danger from a spouse, partner, or relative; these expire in 24 hours or at the end of the next Common Pleas (county) court day.

In an article in the Pittsburgh Post-Gazette several years ago, a retiring MDJ commented that the kinds of cases he heard ran the gamut, from household repairs gone bad, car repairs gone bad, people not paying a dentist’s bill, drunk driving cases, and even truancy cases, kids who have missed too much school.

According to lawyers who regularly appear before MDJ’s, judicial temperament is a crucial issue, as well as their knowledge of the law and their ability to calm the tempers of frazzled litigants.  Although non-lawyer candidates for MDJ must pass a four-week course of training established by the PA Supreme Court, the difference between this and the 3-year full-time study in an accredited law school and passing the state bar exam required of PA licensed lawyers is stark.  Even the 32-hour annual continuing education required of non-lawyer MDJ’s is hardly the equivalent.

The elective term of MDJ’s is 6 years.  Candidates for the office of MDJ may cross-file, that is, file for nomination as both Republican and Democrat; 100 signatures of voters from that magisterial district and registered as members of the party whose petition they are signing are required on nominating petitions.  If MDJ candidates do cross-file and win the primary lotto and are nominated on both ballots, they generally have a smooth ride through the general election in November.

So before you skip your chance to vote at the primaries on May 16, think about the person(s) running for magistrate in your district.  There is a good chance you or your friends and family may find yourself in front of him or her one day.  Is this a person you want making decisions on your speeding ticket, or your loved one’s emergency PFA petition?  If the wrong person gets the job, you will have 6 years to regret it.

 

 

“Why do Elect Judges in PA, and Why Should I Care?: Part I

Posted on by Barbara J. Shah

The odd-year elections in PA, such as this year, 2017, are held to fill many local elective offices, such as school board and municipal officials, but they also include the filling of vacancies in all judicial offices throughout the Commonwealth.  These judicial elections are the most problematical for most PA voters, as most voters have no idea what the various judges do, what kinds of cases they handle, why it matters who fills the position, and, most of all, who are all of these people running?  What makes them qualified or unqualified, or more qualified than the others?  How can I decide who to vote for?  Needless to say, voter turnout is usually quite low for these elections.

However, this voter confusion (or apathy) related to judicial elections could (and has) brought about the election of judges who lack judicial temperament, lack skills and knowledge, and who are beholden to the big money interests who donate to their campaigns.  Unlike Federal Government judges, which are nominated by the President of the US and confirmed by the Senate after hearings to determine their qualifications and ability, our judges in PA are politicians who run as Democrats or Republicans and are nominated by political party voters in the primary elections held in May, and then run as the nominee of their party for the general election in November.  Non-party-affiliated voters cannot vote in the primaries, so they have no voice in the selection of candidates for the general elections.

There are 7 justices of the PA Supreme Court, 15 Judges of the PA Superior Court, 9 judges of the Commonwealth Court, 451 judges of the Courts of Common Pleas (county-level judges), and 517 Magisterial District Judges in PA.

Although Federal judges have a lifetime appointment (unless they are impeached and removed from office for some bad behavior), PA judges other than the Magistrate District Judges and judges of the Philadelphia Traffic Court (called the “minor judiciary” in the PA unified court system) are elected to a 10-year term.   Minor judiciary judges are elected to 6-year terms. At the end of their 10-year terms, Common Pleas judges and those of the higher courts do not have to run again in the primary or the general election.  The PA Constitution, in a provision added in 1969, permits the voters to simply vote to “retain” or “not retain” that judge in office. Thus if a judge gets a 50% “yes” vote, he or she is retained for another 10 years.  This has resulted, according to a study conducted by Professor Larry Aspin of Bradley University in 2009, in a judicial retention percentage of 99.2%

 

All candidates running for judicial office in PA (other than the minor judiciary), must be lawyers living in PA and licensed in PA, and in good standing with the PA Disciplinary Board of the Supreme Court.  Candidates for the minor judiciary need only be 21 years of age, have lived in that Magisterial district for 1 year, and to have successfully completed a 4-week course of study given by the Minor Judiciary Education Board, if they are not licensed lawyers.  Until PA voters passed a confusingly-worded amendment to the PA Constitution last year, the retirement age for PA judges was 70; the constitutional amendment raised it to 75. After retirement, judges may serve as Senior Judges when appointed by the PA Supreme Court.

Judicial salaries in PA, in addition to paid health insurance, paid staff, and offices paid for by the Commonwealth, are:  PA Supreme Court:  $206,054 per year, Superior and Commonwealth Court Judges:  $194,422, Courts of Common Pleas Judges: $178,868, and Magistrate District Judges $89,438. The administrative judges for each court receive a slightly higher salary.  All judicial salaries are adjusted for the cost of living each year.

Judges also are eligible for a special defined benefit pension (DBP) at age 60 with 3 years of service or at any age with 35 years of service:  100% of their final salary, plus paid health benefits, and 50% survivorship benefits for their spouses.  Although the PA Legislature attempted to convert this amazing pension benefit into a Defined Contribution plan (DCP) (like an IRA, as it has done with other new employees in the commonwealth’s employee retirement system), the PA Supreme Court ruled (yes, ruling on its own pension) that the legislature could not convert the PA Judges’ DBP to a DCP.

 

 

 

Why Can’t Things Just Stay the Same?

Posted on by Barbara J. Shah

I have been practicing primarily Family Law for more than 30 years.  When I first began my law practice, the “new” Divorce Code of 1980 was still trying to be understood by the PA populace.  Until then, the only way it was possible for a couple to get a divorce in PA, the “innocent and injured spouse” had to filed a divorce complaint listing the terrible things his or her spouse had done to make the marriage final, then there had to be a trial on these issues, and the court would enter a divorce decree. Many Pennsylvanians had been living separate and apart for many years, resigned to the fact that, if they were not the “innocent and injured spouse,” they could not get a divorce from their former loved one.   Suddenly in 1980, the floodgates opened.  As originally written, the law granted the right for a “guilty” spouse who had been living separate and apart for 3 years or more to request a divorce from the “innocent” spouse by filing an affidavit alleging a 3 year or more separation, and serving it on the other spouse.  Suddenly there was no defense to the divorce, and the best thing the defendant/spouse could do was to request from the court a fair property distribution and some alimony.  For others just then separating couples, it gave the left-behind spouse a 3-year window to get ready for the divorce.   In 1987, the law was changed to turn the 3-year separation requirement into a 2-year separation.  By 2016 it left PA one of the few states in the US with a long separation requirement, possibly the longest one.  However, in 2016, the PA legislature again changed the law to allow a party to request a divorce from the spouse after only a 1-year separation.  What this means is that if you were the left-behind spouse, and for some reason had no idea it was coming, you have a year to cope with the anger, frustration, and fear, let alone the financial adjustment, before grounds for a divorce have been established.  Sadly enough, this is a very difficult process for many of them.  Whether the marriage was a short one or a long one, the shock of your spouse telling you they are leaving and want a divorce is often extreme.  Why me?  We made promises to love and cherish each other for the rest of our lives, and here my spouse is leaving me.  Why can’t things just stay the same?

I have learned that the answer to this question is a painful one.  My husband of nearly 55 years passed away a few months ago. At first I was extremely sad, wondering why I had to go through this, it was unfair.  Slowly I have come to the realization that sad events will happen to us throughout our lives, and the way we deal with them will set the tone for how we deal with others.  I have my adult children and my grandchildren.  I have friends.  I have clients.  I had to pick myself up and stop feeling sorry for myself and begin to make a life that was entirely different from before.  Of course, I wish things could stay the same, but they cannot.  I have accepted that and look forward to good times with my family and friends in the future.  And you can too.

Children’s Extracurricular Activities – who pays for what?

Posted on by Kristen Anders Bojarski

Spring is finally here and we have so much to look forward to: warmer weather, a few days off from school, blooming tulips, and Spring-season extracurricular activities!  Growing up, my sisters and I weren’t in a lot of extracurricular activities.  They were expensive, and my parents worked; they didn’t have the time or the energy to cart us around to various places in the evenings and on weekends.  Of course, if we could find a ride and a way to pay for it, we were pretty much given the freedom to join whatever we wanted.  We did get pretty involved in the high school marching band when we were older; we could do our own fundraising then and we had part-time jobs to help cover the cost. Plus, we eventually were able to drive ourselves to practice and football games or get a ride with friends.

It wasn’t until I started practicing family law that I realized that my experience with extracurricular activities is not necessarily typical.  Either that, or things have really changed over the years. I was surprised at the number of cases I come across where the children are involved in multiple and/or very expensive extracurricular activities.

Despite the benefits that extracurricular activities might have on a child’s development and educational career, they can be a source of conflict for families.  For many, the issue is the cost.  Some children are involved in numerous activities throughout the year, the monthly cost of which is equivalent or more to what one might pay for a car payment. Some children participate in camps or competitive/traveling sports which can cost several thousands of dollars each year.

Managing to pay for expensive extracurricular activities can cause conflict between an intact family; one can imagine the issues that come up when parents are separated.  The question I’m often asked is how does the cost of these activities get divided now that the parents are separated and money is more scarce.

Extracurricular activities are a part of child support, and they are generally addressed at the time the child support order is established.  The cost of the activities are apportioned between the parties according to the percentage allocation of their combined net incomes.  In other words, if the child support payor earns 60% of the parties’ combined net incomes, then he or she will pay for 60% of the cost of the extracurricular activity.  The payor’s portion of the extracurricular activity may be added into the monthly support obligation, or the parties may each pay their share to the organization.  The court only allocates the cost of monthly dues, enrollment fees, etc.; smaller expenses for things like socks or cleats are generally considered a part of the monthly child support obligation.

For the court to include extracurricular activities in the child support order, they generally have to have been agreed upon by both parties, but consent cannot be unreasonably withheld.  For instance, if little Susan has been in dance the last 4 years, and dad signs her up for the new season as per the status quo, chances are that the court will allocate the cost for the dance between the parties even if mom suddenly and inexplicably doesn’t agree to the child participating in this activity.  On the other hand, if dad signs little Susan up for a special two-week dance training camp in Toronto that costs thousands of dollars without mom’s permission, then the court will likely attribute that cost solely to dad.

In some cases, parents agreed to the children(ren) participating in certain extracurricular activities when their marriage was intact, but one of them says that they cannot afford to pay now that they are separated and living on one income. In those cases, the court will take into consideration the cost of the activity in conjunction with the income of the parties to determine whether the cost is reasonable, and whether to allocate any of the cost to the objecting party.  This is pretty discretionary.

Some are unpleasantly surprised when the court finds the cost of the activities that were once agreed-upon are unreasonable.

So talk to your lawyer about extracurricular activity expenses when preparing for your child support court date.  If possible, talk to your former spouse about it as well.  If the cost is excessive and more than what you feel you can pay, maybe you will be able to reach an understanding.  Maybe your spouse would be willing to cover a higher portion of the cost, or maybe you should cut back on the activities altogether until your child is old enough to help contribute to the cost.

 

Child Support Conferences and Hearings – No Place for Amateurs!

Posted on by Kristen Anders Bojarski

You have just received a notice and order that your spouse, former spouse, or other parent has filed a complaint for child or spousal support or Alimony Pendente Lite (APL – spousal support pending a divorce), and that you must appear in court for a conference/hearing. This notice gives you a date, time, and place to appear, and a list of documents you must bring to the conference/hearing.

In Allegheny County, both parties first attend a conference before a Domestic Relations Officer (DRO), who uses a computer program to generate a guideline monthly support number based on incomes and other information provided by the parties.   The parties are encouraged to reach an agreement, which will then be typed up into a consent order for support and signed by the parties.  If the parties don’t reach an agreement, they proceed straight to a hearing that day.

In other counties, like Washington and Westmoreland, if you don’t reach an agreement at the conference, you go home.  The DRO issues a recommendation for an order (which goes into effect immediately), and if either party is dissatisfied, they can request a “de novo” hearing (an evidentiary hearing before the hearing officer) which is scheduled at a later date.  Sounds like cake, right?  You can do this yourself without having to pay a lawyer, right?

Not so fast.  The majority of support cases in PA are resolved at the DRO level. Although not all parties consent to the guideline amount of support that the DRO comes up with, many do or at least use the guideline number as a starting point to negotiate. For this reason, it is very important to have a good idea of what the guideline “number” is before the conference.

To prepare for a DRO conference, I always meet with my client ahead of time, have them bring with them all of the documents required by the order, and analyze the facts of the case, my client’s income and the other party’s income if it is available to me, and then run various guideline scenarios on a special computer program designed for that purpose, depending on the facts of that particular case. Although what you can “afford” is not relevant to the amount of the order (many support payers are surprised by this), there are special facts and “deviations” which could affect the amount of the final order.

It is always surprising to me to see how many attorneys show up at a DRO conference without having prepared their own guideline calculations ahead of time.  This lack of preparation is a real disservice to the client, and was described at a CLE (continuing legal education) course I recently attended as “malpractice.”

DRO’s are generally very good at what they do, but they are not attorneys.  In counties like Allegheny, it is not for a DRO to know or tell the parties when a deviation is appropriate.  Plus, DRO’s are human; they sometimes make mistakes.  It is very easy for a DRO to mistakenly calculate the guideline monthly support amount as though one party has primary custody of the children, when the parties really have some sort of shared custody arrangement.  I’ve also had DRO’s mistakenly input a party’s weekly income as monthly income.  It’s easy to imagine how a mistake like this could greatly impact the guideline number that is generated.  If you are prepared and have an idea of what the guideline number should be, it is easy to catch a mistake by comparing numbers with the DRO’s.

If the attorney has not prepared their own calculations ahead of time, how can they possibly know if the DRO made a mistake?  They don’t know, and as a result, they allow their clients to agree to support orders that can be terribly unfair.  Some errors go unnoticed for years, if they are ever caught at all.  Everyone knows someone who complains they are paying too much or receiving too little in child support.  If they didn’t use an attorney experienced in support issues, maybe their order is incorrect.

If you have a support proceeding coming up, insist that you meet with your attorney ahead of time, so that they can go over the documents with you, prepare a guideline calculation, and then determine if some deviation or special circumstance may apply in your case.   If your attorney doesn’t do this, find another attorney.

On the other hand, if you already have a support order established, and it was entered at the DRO level without any preparation beforehand, I strongly encourage you to meet with an attorney to determine if the amount was appropriate considering your circumstances.

Sure, you are entitled to represent yourself, or get your neighbor’s friend who is a real estate attorney to represent you at a support conference/hearing.  I wouldn’t fix a broken leg by myself or go to an eye doctor for it.  Better to prepare properly rather than trying to fix something wrong later.  Sometimes we are unable to fix your mistakes, and you may end up paying a steep price for a bad decision.

An Open Letter to Adult Children of Divorcing Parents

Posted on by Kristen Anders Bojarski

Dear Adult Children of Divorcing Parents:

So your parents are going through a divorce.  Seems odd, right?  We tend to think of divorce like a sickness we acquaint with childhood, such as chickenpox.  If this was destined to happen, your parents should have gotten it over with in your early childhood years, right?  Actually, it is not uncommon for people who are in their later years of life with adult children to decide to get divorced.  There are a lot of reasons for this phenomenon.  Some people choose to wait until their children are grown, some grow apart over the years, some “cheat” on the other, or maybe they just fall out of love and are tired of going through the motions.  Sometimes one parent who has been bullied and belittled (and sometimes abused) by the other during the marriage gets counseling and gets up the nerve to go.

No matter what the reason your parents are splitting up, we have two words for you:  Butt out!

However, once you establish an adult relationship with your parents, you will find that adult relationships are not that simple.   Some things which appear to be entirely the fault of one parent come into focus as more of a shared issue.  You may come to realize that you are identifying with the bullying parent and have disdain for the bullied parent, which you have been experiencing all of your life. Let me give you a clue:  if one parent comes crying to you for support and to get yet on “their side” in the divorce litigation – Run!  You are a child of both parents; if that parent needs someone to talk to, they should get professional help.  Unloading their anxieties and frustrations of the marriage or the divorce litigation on their children is very unhealthy, both for the parent and the child.

We are always concerned when adult children get involved in the divorce litigation to support one parent or punish the other.  (In fact, this unfortunately happens with non-adult children.  If you see a parent unloading on an at-home, minor sibling, step in and tell the parent to stop, and counsel the sibling to stay out of the middle.)   We find that adult children who side with one parent sometimes attempt to “guilt” the rejected parent into accepting an unfair settlement.  It is not for the children to judge or to try to get one parent to take less or “walk away.”  Do you plan to care for the parent who gets less than they are entitled to in the divorce settlement, when they are old and sick and don’t have enough money to support themselves?

If you are an adult child and have concerns about what is happening in a divorce between your parents, ask the parent you are concerned about to schedule an appointment with you and their lawyer to discuss your concerns.  If that parent doesn’t have a lawyer, suggest that they get one.  There is no need for a divorce to be ugly.  If both parents are willing to be civil, then both parents should know their rights under the law.  Their settlement should be fair to both of them.

Once your parent is represented by a competent lawyer and knows their rights, step back.  You – and your parents – will have the rest of your lives to pick up the pieces and begin a different relationship.  You, your parents and your siblings will be all the better for having taken this advice.

A Lesson About Honesty

Posted on by Kristen Anders Bojarski

Yesterday, Attorney General Jeff Sessions recused himself from any investigations into Russia’s alleged interference in the 2016 U.S. presidential election after it was discovered that he failed to disclose two meetings he had with the Russian ambassador during the campaign at his senate confirmation hearing.  Sessions maintains that he didn’t intend to mislead the committee, and promised to issue a statement clarifying his testimony.  President Trump stated on his Facebook page that while Sessions’ responses could have been more accurate, it was clearly not intentional.

As one who spends a lot of time preparing witnesses for trial, I find it hard to believe that Sessions did not intentionally omit this information.  Russian interference in the election is a hot button issue – Sessions and his lawyers had to have expected that he would be asked questions about his ties with Russia, and thus prepared to answer those questions.  By not disclosing the information, Sessions made a terrible mistake that will likely haunt him, and the President, for years to come.   Let this be an important lesson to all of us: always be honest.

In almost every Family Law case that I handle, one or both parties have behaved badly at one point.  We are human after all.  When we are hurt, we want to get revenge.  When we are angry, we lash out.  Some of us even have skeletons in the closet.   Sometimes a party has an asset or a source of income they want to hide.

I always instruct my clients to tell the truth.  Don’t lie about your income, and disclose everything.  If you did something bad, be honest about it.  The bad stuff always comes out eventually, so disclose it on your own terms and not opposing counsel’s.   You and your lawyer can come up with a strategy for disclosing the information in a way that will have as little impact as possible on your case.

I can guarantee that the extra source of income or bad behavior will have less of an impact on your case than lying will.  If you are caught lying in court, you will lose all credibility with the judge on your case, and there may be other consequences, such as having to pay the other side’s attorney fees as sanctions, or in severe cases, imprisonment.

Sessions should have been upfront with the committee.  Maybe they were totally innocent meetings and he did nothing wrong.  But because Sessions chose not to disclose the meetings, he now looks like he was trying to hide something, and thus loses credibility.  Issuing a clarifying statement after the fact will not restore Sessions’ reputation.  The damage has been done.

So let this be a lesson to you: always be honest.