Family Law

FAMILY LAW BLOG - IMPOSSIBILITY OF SUPPORT ORDER

By Aaron Weems

Rule 1910.19, Subsection(f)(2) of the Pennsylvania Support Guidelines provides for the termination or suspension of the support order when 'the obligor is unable to pay, has no income or assets and there is no reasonable prospect that the obligor will be able to pay in the foreseeable future.' As the explanatory comment goes on to state, Subsection (f) is designed to address an increasing 'multiplicity of circumstances' in which the existing support order becomes inconsistent with rules or law. In effect, Rule 1910.19(f)(2) addresses what happens when it is impossible for the obligor to pay the support order. The obvious question, however, is what constitutes 'impossibility'?

At the Superior Court level, Plunkard v. McConnell, 962 A.2d 1227 (Pa. Super. 2008), addresses support when a party is incarcerated. The Plunkard Court articulates the reasoning that incarceration is a 'voluntary reduction of income' and not a 'change in circumstances' justifying a modification of support. The Court held that the Rule 1910.19 specifically indicates that modification or termination is to be granted without prejudice and that the Mother (the payee) could file for reinstatement of the Order if the Father (payor) was released from jail. In the Plunkard case, the Court remitted Father's arrears due to the Rule and that jail was a 'compelling reason' for remittance.

I have seen this situation play out in a few different instances; the first situation involving the suspension of the support order while the payor served two years in jail for aggravated assault. My client was stabbed in the chest by his wife during a domestic dispute. The court ruled in that case that while the suspension of the support order was appropriate and warranted – imprisonment led to the 'impossibility' of the wife's payment on the child support obligation – due to the fact that she committed a violent crime against the husband which led to her imprisonment, she was held to the balance of the entire arrears accumulated during her imprisonment. 

In another instances, the support order was suspended due to the payor's receipt of cash assistance from the state. Under Rule 1910.19, the Domestic Relations Office has no alternative than to suspend an order in which the payor is receiving cash assistance from the state. In my experience, the Domestic Relations Office will schedule a review conference within a relatively short period of time (90-180 days) during which time the payor will have to comply with the rules and conditions related to his or her receipt of cash assistance. Presumably, within that period of time, he or she will find employment in some capacity, or in the alternative, the benefits will expire and she will be held to an earning capacity.

In the case in which this rule applied to my client, the conference officer indicated that upon the expiration of cash assistance, she would begin to gradually increase the payor's earning capacity to reflect her particular circumstances in this case (background: wife was a high income individual who, due to her own actions, lost her capacity to practice her profession). Due to the fact she was highly educated and, therefore, capable of earning a decent income, the Court would not accept prison as an indefinite excuse. Instead, they set earning capacity low, but will be gradually increase it at steady intervals with the assumption that as time passes, she will be expected to reestablish herself through employment and retraining.

The net effect of the Rule and case law is that a Rule 1910.19 suspension or termination is not the same as a change of circumstances in other situations. Instead, when Rule 1910.19 is applied, the Court will make what amounts to a two-tiered determination as to (1) whether to suspend the order, and (2) when the order is reinstated, the amount of arrears that should apply to the case. Once done, however, there will be the opportunity to reestablish the order as soon as those circumstances preventing payment of support, such as imprisonment, are over.

Full post as published by Pennsylvania Family Law on November 23, 2010 (boomark / email).