BISEL'S PENNSYLVANIA FAMILY LAW

E-REPORTER

January 17, 2012

Issue #48

 

This reporter is published twice a month by the George T. Bisel Company, Inc, and is written by Arthur S. Zanan, Esquire. Its purpose is to provide Pennsylvania practitioners with timely access to relevant and up-to-date Family Law information. The content will include brief summaries and headnotes of important Family Law appellate and trial court decisions, proposed and enacted Family Law legislation and proposed and adopted state and local Family Court rules, as well as links to the full text of the decisions, legislation and court rules.

 

The information contained herein is not intended to constitute legal advice generally or with respect to any particular set of facts or circumstances and should not be relied upon as such by the reader. Neither the author nor the publisher assume responsibility for errors or omissions as may be contained herein, the use of the information contained herein, or any damages arising or resulting from the use of the information contained herein.

 

Copyright 2012 by George T. Bisel Company, Inc. All Rights Reserved.

 

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TABLE OF CONTENTS

 

Adoption Person Other Than Spouse of Natural Parent

In Re: Adoption of B.S.R., 29 Crawford Co. Leg. J. 259 (C.C.P. October 11, 2011).

 

Custody & Visitation Counseling Requirement Prisoner's Request for Counseling

D.R.C. v. J.A.Z., ___ Pa. ___, ___A.3d ___, No. 27 MAP 2010 (Pa. November 23, 2011).

 

Custody & Visitation Failure of Trial Court to Consider Custody Factors in 23 Pa.C.S. 5328(a) Unreasonable Restrictions on Visitation Rights

J.R.M. v. J.E.A., ___ A.3d ___, 2011 PA Super 263 (Pa. Super. December 5, 2011).

 

Custody & Visitation Shared Physical Custody

Bargher v. Saluta, C.P. Lehigh County, No. 2010-FC-0434 (C.C.P. November 10, 2011).

 

Divorce Fraudulent Transfers Award of Counsel Fees Standing of Former Counsel to File for Attorney Fees

Kraisinger v. Kraisinger, ___ A.3d ___, 2011 PA Super 264 (Pa.Super. December 9, 2011).

 

Paternity Presumption of Paternity Acknowledgment of Paternity

Barton v. Beavers, 29 Franklin Co. Leg. J. 112 (C.C.P. June 28, 2011).

 

Practice & Procedure Amended Court Rules Pa. R.Civ.P. 1910.11 and 1910.12

In Re: Amendment of Rules 1910.11 and 1910.12 of the Pennsylvania Rules Of Civil Procedure (Effective January 31, 2012).

 

Support Child Support Interpretation of PSA Child Support Offset by Mortgage Payment

MS v. TS, C.P. Lycoming County, No. 10-20, 828 (C.C.P. November 15, 2011).

 

Support Duration of Alimony Pendente Lite Length of Marriage Considered

YS v. RM, C.P. Lycoming County, No. 10-21, 587 (C.C.P. December 8, 2011).

 

Support Earning Capacity of College Student

Spanos v. Jay, C.P. Lawrence County, No. 2009 of 2011, D.R. (C.C.P. November 18, 2011).

 

Support Property Settlement Agreement Modification of Alimony

Bowen v. Peck, C.P. Montgomery County, No. 95-22152 (C.C.P. October 7, 2011).

 

 

SUMMARIES

 

Adoption Person Other Than Spouse of Natural Parent

 

In In re: Adoption of B.S.R., trial court held that while 23 Pa.C.S. 2903 appears to allow only the spouse of a natural parent to adopt a child, if that natural parent retains his/her parental rights, 23 Pa.C.S. 2901 allows the court "for cause shown," to allow the adoption by a non-spouse to proceed, even if both natural parents' rights are not terminated.

 

The trial court followed In Re: Adoption of J.M., 991 A.2d 321 (Pa. Super. 2010), where the natural mother sought to terminate the natural father's parental rights so that the maternal grandfather could adopt the child and the natural mother and the maternal grandfather would be the parents of the child. In that case, the court held that the grandparent could adopt without terminating the parental rights of the father if the mother could show cause, pursuant to 2901, why the proposed adoption should go forward.

 

The court found that the same analysis would apply in this case even though the natural father had consented to the termination of his parental rights. The court granted paternal grandfather's petition seeking to adopt the child, but set further hearings to determine if there was cause to proceed.

 

In Re: Adoption of B.S.R., 29 Crawford Co. Leg. J. 259 (C.C.P. October 11, 2011). Vardaro, J.

 

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Custody & Visitation Counseling Requirement Prisoner's Request for Counseling

 

In D.R.C. v. J.A.Z., a majority of the Pennsylvania Supreme Court held that the counseling required by 23 Pa.C.S. 5303(c) is not a prerequisite to a court's consideration in its evaluation of a child's best interest in the context of a request for prison visitation.

 

Father was serving a life sentence for first-degree murder. Mother and custodial parent "steadfastly opposed" prison visits for their minor son. Instead, she requested that visits be postponed until the son reached a sufficiently mature age and could make his own informed decision about visiting father. Father filed a complaint seeking visitation with his son at the prison.

 

The trial court denied father's request for visitation, which was timely appealed. On remand, the trial court ordered father to present evidence that he was no longer a "grave threat of harm" to his son. This hearing was followed with a telephonic hearing in which mother and a licensed psychologist from the Department of Corrections (DOC) testified. The trial court dismissed father's petition based on the conclusion that the language of the statute precluded it from awarding visitation because father never received counseling mandated by 23 Pa.C.S. 5303(c).

 

On appeal, the Superior Court found that the trial court erred by not appointing a qualified professional to perform the counseling. On remand, the trial court directed DOC to choose a qualified professional to evaluate father and provide him with counseling. DOC appealed.

 

The issue before the Supreme Court was whether the DOC must provide counseling to currently incarcerated prisoners so that they may obtain custody, partial custody or visitation of a minor child and whether the court can order the DOC to provide and pay for parental custody-related counseling for a state inmate when no statute directs it to assume this cost.

 

A majority of the Supreme Court concluded that the legal authority relied on by the trial court was misplaced. The majority noted that there was no express direction under the statute as to the effect that continuing incarceration had on the custody rights of parents who have committed any of the enumerated offenses. Thus, the majority examined the legislative history of 23 Pa.C.S. 5303, and found that counseling was not a prerequisite to a court's engaging in its evaluation of a child's best interest in the context of a request for prison visits. Justice Orie Melvin wrote: "It would serve no significant ameliorative purpose to mandate counseling for every incarcerated offending parent for the limited and closely scrutinized contacts associated with prison visits. A visitation request by an incarcerated parent necessarily stands on different footing than a traditional custody petition." Accordingly, the majority reversed and remanded the case back to the trial court to conduct a hearing on father's request for prison visitation in an "expeditious manner" without resort to the application of the counseling statute.

 

Justice Baer filed a Concurring Opinion, objecting to the terminology of "grave threat of harm" to a child terminology in the statute at issue, finding that there is no need for any trial court to find a "grave" threat of harm.

 

Justice Eakin filed a Concurring Opinion agreeing with the majority that there is no basis, in statute or case law, to impose the cost of counseling on the DOC as part of an inmate's attempt to obtain visitation with his child. Had the legislature wished the DOC to provide this counseling, it could have readily done so. Therefore, it was unnecessary to address whether the Domestic Relations Code requires current incarcerated inmates, such as father here, to undergo counseling when seeking visitation with their children.

 

Justice Saylor filed a Concurring and Dissenting Opinion, noting that he believed counseling was appropriate to visitation between a prisoner-parent and a child. However, Justice Saylor agreed with the DOC that there was no basis statutory or otherwise for imposing the burden of paying for the cost of counseling upon the DOC.

 

D.R.C. v. J.A.Z., ___ Pa. ___, ___A.3d ___, No. 27 MAP 2010 (Pa. November 23, 2011).

Majority Opinion by Justice Orie Melvin

Concurring Opinion by Justice Baer

Concurring Opinion by Justice Eakin

Concurring and Dissenting Opinion by Justice Saylor.

 

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Custody & Visitation Failure of Trial Court to Consider Custody Factors in 23 Pa.C.S. 5328(a) Unreasonable Restrictions on Visitation Rights

 

In J.R.M. v. J.E.A., the Superior Court ruled that the trial court failed to address the factors in 23 Pa.C.S. 5328(a) in reaching its custody determination, and also imposed restrictions on father's periods of partial custody without support in the record that such restrictions were necessary.

 

The trial court granted the parties' request for joint legal custody of their infant son, awarded mother primary physical custody and ordered partial custody to father. While the child was breast-feeding, father was permitted visitation three days per week. His periods of custody were to be either at mother's church or where the parties otherwise agreed. Father was entitled to private time with child, but mother or another "suitable" caregiver was permitted to be in the area.

 

Father appealed the trial court's order granting mother primary custody and imposing the restrictions on his periods of partial custody. Father argued that the trial court failed to address the factors in 23 Pa.C.S. 5328(a) and perform an analysis of what was in the child's best interest. Specifically, father alleged that the trial court abused its discretion in awarding primary physical custody to mother where the court did not engage in any fact-specific, case-specific analysis of the best interest factors and made no findings to support its legal conclusion that such a custody arrangement was in the child's best interest.

 

The Superior Court agreed and determined that the trial court erred when it rendered its custody decision without consideration of all of the statutory factors it was required to consider under 23 Pa.C.S. 5328(a). The court emphasized that all of the factors listed in 5328(a) are required to be considered by the trial court when entering a custody order. The court noted that "the trial court based its decision almost exclusively on the fact that the child is breast-feeding and the parties' difficulty communicating with each other."

 

The court also agreed with father's argument that the imposition of restrictions on his periods of partial custody were unjustified. An award of partial custody does not usually contain restrictions. The court noted that although the fact that mother was breast-feeding the child may have served as support for ordering that mother was permitted to be present in the area during visits, there was no indication in the record or in the trial court's findings of fact as to why another "suitable" caregiver would need to be present while father visits with the child. There were also no reasons in the record to prohibit visits in father's home or overnight visits.

 

The court noted that there was no finding that father was unfit, unable to care for the child on his own or posed a threat to the child. Thus, the restrictions were imposed without support in the record and were unreasonable. On remand, the court mandated that the trial court shall enter an order granting unsupervised periods of partial custody for father in the absence of a determination that the child would suffer a detrimental impact by having unsupervised visits.

 

J.R.M. v. J.E.A., ___ A.3d ___, 2011 PA Super 263 (Pa. Super. December 5, 2011). Donahue, J.

 

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Custody & Visitation Shared Physical Custody

 

In Bargher v. Saluta, the trial court ruled in favor of equal shared physical custody of the parties' minor child, where the parties had a strong ability to communicate effectively regarding the child's needs, lived very close to each other and were significantly involved in the child's life.

 

After the parties separated, they entered into a shared legal custody agreement granting father primary physical custody and mother partial physical custody of their seven-year-old son. Mother later petitioned to modify the custody order, seeking a shared physical custody arrangement.

 

The trial court granted mother's petition and found, after considering the applicable factors set forth in 23 Pa.C.S. 5328(a) in determining the child's best interest, that the parties should equally share physical custody of the child.

 

The court noted that the parties lived only 14 blocks away from each other and both had extended family that lived in the area. Mother resided with her boyfriend, who also had partial physical custody of his child from a prior relationship. Mother and her boyfriend were able to coordinate their custody schedules to coincide so that their children could spend time together. Mother also participated in activities with the child and changed her work schedule so that she could be at home with him when she had physical custody. Father was also able to spend significant time with the child during his periods of physical custody and arranged his work schedule to maximize this time.

 

The court observed that, since their separation, the parties had more equally shared physical custody and that the arrangement had worked well for the child. The court found it significant that the parties regularly communicated with each other regarding matters that affected the child. "In light of the acknowledgment by each parent of the competence of the other parent, the proximity of the residences, the cooperation of the 'significant others,' the lack of any significant reason to relegate a parent to the role of a partial physical custodian, and the devotion each parent has to [the child], I find that the best interests of [the child] call for a shared physical custody schedule for his parents. Parents and child have done this successfully in the past and they can do it in the future. This case is a breath of fresh air in terms of the co-parenting that is done."

 

Bargher v. Saluta, C.P. Lehigh County, No. 2010-FC-0434 (C.C.P. November 10, 2011). Ford, J.

 

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Divorce Fraudulent Transfers Award of Counsel Fees Standing of Former Counsel to File for Attorney Fees

 

In Kraisinger v. Kraisinger, the Superior Court ruled that where husband and wife acted fraudulently, former counsel of wife had standing to bring a petition for counsel fees in the parties' divorce action pursuant to 23 Pa.C.S. 4351(a). There is no language in the statute providing that only a party to the domestic relations action has standing to file a motion for attorney's fees.

 

Husband and wife entered into a marital settlement agreement in which wife was obligated to pay husband's attorney fees, plus any lost income be may incur, if she challenged the contents of the agreement. Wife subsequently initiated a child support action. Husband contested wife's action as being precluded by the terms of the agreement.

 

The trial court found husband in contempt for failing to abide by the agreement when he unilaterally reduced his monthly support payments. The trial court also found that the provision requiring wife to pay husband legal fees if she challenged the agreement was void and against public policy. Husband appealed. The Superior Court affirmed, finding that wife's waiver of her right to seek additional child support in exchange for part of equitable distribution was invalid. The court additionally concluded that the agreement was invalid to the extent that it penalized wife for, and therefore would act to discourage her from, seeking a court's review of the parties' agreement as to child support.

 

Wife later discharged her attorney after she executed a judgment note promising to pay him $30,851.96. Wife made five $1000 payments on the note. Wife then filed a petition for counsel fees. The parties subsequently entered into two more agreements without assistance of counsel that modified child-support and also addressed attorney fees in the event wife challenged the new agreements.

 

As a result of these new agreements, wife filed for Chapter 7 bankruptcy, listing her debts as $26,571.07 02 to her former counsel and $6408.76 owed to other creditors. Wife's bankruptcy trustee filed a complaint against her and husband, alleging that they plotted to defraud wife's creditors, including former counsel, by entering into the subsequent agreements.

 

While the bankruptcy case was pending, former counsel filed a second amended complaint for counsel fees in his own name, over wife's objections, alleging that wife and husband conspired to deprive him of counsel fees owed to him and that the subsequent agreements were fraudulent. Husband filed a motion to dismiss the petition with the trial court on the ground that former counsel had no claim in law or equity. The trial court entered an order directing husband to pay former counsel counsel fees in the amount of $40,026.13.

 

Husband appealed, questioning whether 23 Pa.C.S. 4351 provided an attorney with an independent cause of action to collect to collect fees from his or her client's opposing party, whether a court may award interest on those fees, and if the underlying transfer was in fact fraudulent.

 

First, the Superior Court found that both husband and wife engaged in a fraudulent transfer intending to avoid paying wife's former counsel's fees and that the scheme was intended to benefit both husband and wife at the expense of the children. The court found that the transfer met seven of the 10 prongs for a finding of a fraudulent transfer, supporting the conclusion that the parties committed fraud. Therefore, the trial court properly concluded that the subsequent agreements were fraudulent and that it had discretion under the Uniform Fraudulent Transfer Act to void the subsequent agreements to the extent necessary to satisfy former counsel's claims.

 

In addition, the court determined that former counsel had standing to bring an action for attorney fees under 23 Pa.C.S. 4351. The statute itself provided support for the trial court's decision to allow former counsel to proceed on his own motion, as the language of the statute did not limit the right to file a motion for attorney fees to those actual parties in underlying domestic relations actions. Moreover, the court ruled that the fraudulent actions of the parties supported a finding that, as an equitable manner, former counsel had standing to bring this action under the Domestic Relations Code in his own right. Thus, the award of counsel fees was appropriate based on the totality of the circumstances.

 

Finally, the court held, the award of interest on the counsel fees was proper.

 

Kraisinger v. Kraisinger, ___ A.3d ___, 2011 PA Super 264 (Pa.Super. December 9, 2011). Platt, J.

 

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Paternity Presumption of Paternity Acknowledgment of Paternity

 

In Barton v. Beavers, the trial court ruled that although in the case of a child born out of wedlock the presumption of paternity does not apply, a parent may not challenge the paternity of the child once the father has acknowledged paternity. Both by his action in taking the child into his home, providing her support, and exercising custodial rights, as well as by his statutory Acknowledgment, defendant accepted the role of father. Having failed by reason of his actual knowledge of mother's affair to provide clear and convincing proof of fraud, the court determined defendant must be estopped from denying paternity of the child.

 

Defendant filed for paternity testing to determine whether he was the biological father of the minor child. By the same petition, defendant requested the court to set aside an Order of Court approving the Acknowledgment of Paternity signed by defendant.

 

The trial court denied defendant's petition. The court noted that where the acknowledged father of the child caught the mother having intercourse with another man prior to the birth of the child, he had notice that such other man could potentially have fathered the child. Following this revelation, having continued his relationship with the mother and following the birth took the child into their home as his own, the actual knowledge on the part of the father precluded a finding of fraud.

 

The court explained that paternity may be acknowledged by conduct: a putative father holding himself out as a child's sire, or assuming the role of father, by a recognition and fulfillment of the duty of support, or by execution of an Acknowledgment of Paternity.

 

The court rejected defendant's challenge to his execution of an Acknowledgment of Paternity, arguing that he was un-counseled, did not understand his right to request DNA testing, and that the Acknowledgment was executed outside of court, without any record being made. The court found that defendant's acknowledgement of paternity at a support conference, outside of court, and absent a record, did not implicate its validity. The statute does not mandate consultation with counsel prior to execution of an Acknowledgment, and the court did not believe the fact that defendant was un-counseled affected its weight. The court noted that most of such Acknowledgments are likely done without the benefit of legal representation. Moreover, defendant was an adult at the time the Acknowledgment was executed, and he presented no evidence that he was unable due to some mental defect to understand its terms.

 

Barton v. Beavers, 29 Franklin Co. Leg. J. 112 (C.C.P. June 28, 2011). Van Horn, J.

 

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Practice & Procedure Amended Court Rules Pa. R.Civ.P. 1910.11 and 1910.12

 

On December 23, 2011, upon the recommendation of the Domestic Relations Procedural Rules Committee, the Pennsylvania Supreme Court amended Pa. R.Civ.P. 1910.11 and 1910.12, effective on January 31, 2012.

 

As noted in the Explanatory Comment to Rule 1910.11, the rule has been amended to require that income information be provided in all cases, unless both parties are represented in reaching an agreement, so that a guidelines calculation can be performed. If parties agree to receive or to pay an order other than the guideline amount, they should know what that amount is so that they can enter an agreement knowingly.

 

In Re: Amendment of Rules 1910.11 and 1910.12 of the Pennsylvania Rules Of Civil Procedure

Order; In Re: Amendment of Rules 1910.11 and 1910.12

 

Text of Amended Rules. (Effective January 31, 2012).

 

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Support Child Support Interpretation of PSA Child Support Offset by Mortgage Payment

 

In MS v. TS, the trial court held that a clause in the parties Property Settlement Agreement was void and unenforceable, where it was evident that the parties intended monthly payments for the mortgage by wife to husband were in place of any child support obligation wife would have.

 

The court held that the clause violated public policy because parents are not permitted to bargain away child support, citing Hyde v. Hyde, 421 Pa.Super. 415, 419 (1992).

 

MS v. TS, C.P. Lycoming County, No. 10-20, 828 (C.C.P. November 15, 2011). McCoy, J.

 

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Support Duration of Alimony Pendente Lite Length of Marriage Considered

 

In YS v. RM, the trial court held that when determining APL, a court may take into consideration the factors for alimony. In this case, in order to promote equity, the court found it appropriate to consider the factors of 23 Pa.C.S. 3701 when considering APL.

 

The parties were married on September 9, 2008 and subsequently separated on December 1, 2010. Neither party was in a hurry to become divorced due to reasons of citizenship; therefore, the divorce litigation was likely to last as long or longer than the marriage.

 

The court noted that this was a unique case, and it was not the practice of Lycoming County to utilize the alimony factors when determining APL. "This determination will be made on a case-by-case basis and is an exception not a policy change."

 

YS v. RM, C.P. Lycoming County, No. 10-21, 587 (C.C.P. December 8, 2011). McCoy, J.

 

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Support Earning Capacity of College Student

 

In Spanos v. Jay, the trial court assessed father's earning capacity at zero since he was a full-time college student and his previous employment was merely a part-time summer job.

 

Father and mother had a child and 2009. Mother petitioned for child support. The court ordered father to pay $210 per month in support plus $26 per month in arrears. This amount was based on father's part-time summer job with the City of New Castle.

 

In July 2011, however, father moved to decrease his support obligation because he was returning to college full-time. Father argued that he could not work and maintain a full-time academic career all while continuing with his football obligations. If father worked, he would lose his scholarship because he could not fully commit to the obligations imposed upon him by the athletic program.

 

At issue before the court was whether it was appropriate to attribute father with a minimum wage earning capacity, when father was a full-time college student.

 

The trial court vacated its prior support order and assessed father's current earning capacity at zero. The court noted, however, that mother could petition to reinstate the prior order of support when father was on summer break and able to resume summer employment.

 

The court found that in considering father's request to modify his support obligation based on the fact that father was a full-time college student, it was necessary to apply the Grimes test, set forth in Grimes v. Grimes, 596 A.2d 240, 242 (Pa.Super. 1991) ("A petitioner must first establish that the voluntary change in employment, which resulted in a reduction of income, was not made for the purpose of avoiding a child support obligation and secondly, that a reduction in support is warranted based on petitioner's efforts to mitigate any income loss.").

 

The court found no evidence that father reduced his income in order to avoid paying support. Rather, the court found father was merely trying to focus on his academic and athletic obligations. The court acknowledged that it is inappropriate for a parent to receive a deviation in their support obligation merely because he or she has chosen to further his or her education. The court noted the voluntary choice to forgo current employment in order to further one's education as an employment decision that should be treated no differently than a decision to change jobs and salary.

 

The court distinguished this case because father left his job to resume college, and father's employment was obtained while on summer break. "Father did not leave his career to attend college; as expected he quit his summer job when the academic year resumed in the fall. The court further finds that father's decision to not work and focus on his college obligations is warranted, as his receiving a greater benefit by ensuring that he continue to receive scholarships and financial assistance. The court believes this will eventually be much more beneficial to the child in the future then requiring father to quit school and work a part-time job now."

 

Spanos v. Jay, C.P. Lawrence County, No. 2009 of 2011, D.R. (C.C.P. November 18, 2011). Hodge, J.

 

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Support Property Settlement Agreement Modification of Alimony

 

In Bowen v. Peck, the trial court held that where the parties' PSA allows for the modification of alimony only if either party suffers a substantial an "involuntary change" in financial circumstances due to events beyond his/her control, and the PSA does not specifically define the term "involuntary change," if the person is terminated for cause, the termination is voluntary and alimony cannot be modified.

 

The parties were married in 1980 and divorced in 1996. The parties' divorce decree incorporated, but did not merge, their Property Settlement Agreement dated October 17, 1995. The agreement contained a clause stating: "The provisions regarding support/alimony set forth above are modifiable only to the extent that either party suffers a substantial and involuntary change in financial circumstances due to events beyond his/her control."

 

Father subsequently filed a Petition for Modification/Termination of alimony. Father argued that when he signed the PSA, he was earning $80,000 per year gross income plus bonus perks. When he filed the Petition at issue herein, he was earning $65,000 per year. At the time of the hearing, he was unemployed, with an alimony payment of $1000 per month. Based upon this reduced income, father contended that he suffered a substantial and involuntary change in his financial circumstance.

 

The court denied father's petition, noting that the law is clear that parties are free to privately contract as to alimony amount and term, and are not bound by the limitations set forth in the Divorce Code, citing McMahon v. McMahon, 612 A.2d 1360, 1363 (Pa. Super. 1992). The court noted that despite their PSA contract, father relied upon the Divorce Code factors to support his argument that the contract terms concerning alimony should be modified or terminated. The court held that these factors were irrelevant.

 

The court noted that although the PSA did not specifically define the term "involuntary change," Pa. R.Civ.P. 1910.16-2(d)(1) explains that where a party voluntarily leaves a job or is fired for cause, there will generally be no effect on his/her support obligation. Here, the evidence showed that all three of father's job losses were either voluntary or within his control, thereby preventing modification of alimony under the PSA.

 

Bowen v. Peck, C.P. Montgomery County, No. 95-22152 (C.C.P. October 7, 2011). Carluccio, J.

 

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