General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
Ex-Husband has custody of Child. Ex-Wife is ordered to maintain medical insurance for Child.
Child seriously injured in bad accident. Dad discovers that Child’s insurance lapsed several weeks before.
Finding out that your child’s or your insurance coverage has been canceled or modified just when you need it most is a nightmare.
There are a couple of ways to prevent that from happening.
The source article discussed the Qualified Medical Child Support Judgment Order required in every Missouri divorce involving minor children where insurance is available.
But an endorsement to any insurance can be negotiated and ordered which requires the insurance carrier to provide 30 - 90 days notice to the insured prior to canceling or modifying (reducing) coverage. That works whether the insured is a child or a former spouse.
The party required to provide the insurance should be required to deliver the certificate of insurance / declarations page reflecting the special endorsement to the insured within 10 days after final judgment.
Read more in this South Side Journal article - Fox Family Files: Do you have a “Q-order in your divorce decree?
Work your fingers to the bone supporting the family while your spouse goes to school to eventually bring more bacon home to the family.
… Then get dumped when your spouse finally receives his or her sheepskin.
It’s a classic drama that plays out over and over again.
The exploited spouse views that degree as a commodity that he or she in essence bought for their spouse.
But is the degree itself property that has an intrinsic value that can be divvied up on the marital balance sheet?
Most states say no, Utah and Florida among them.
What about the understanding of the expected quid pro quo between the spouses?
Well, this varies from state to state, but it’s best not to expect too much based on an implied understanding or even a verbal agreement.
As in other areas of life, there is just no substitute for a solid written contract reflecting the expectations of both parties.
In Utah, a divorcing wife recently went outside of her husband’s divorce case to file a separate civil lawsuit for breach of contract and unjust enrichment.
While some have criticized taking this dispute outside the family court, the Utah Court of Appeals held that the wife could press her civil suit but that she would have to prove a written contract.
Not surprisingly, the couple never hired attorneys to draw up a formal legal contract. But there reportedly were a series of e-mails back and forth that may be deemed to constitute a contract.
Of course, even where there is no written contract and the degree per se may not be divisible, there may be more than one way for the exploited spouse to skin the cat. For example, the professional practice founded upon the degree may have a value that can be divided. Or the degreed spouse’s income may be split up, with a portion going to alimony. Or the exploited spouse may at least be reimbursed for the money spent on tuition to obtain that degree.
Read more in this Salt Lake City Deseret News article: Little redress available for ’support’ spouses.
A wealthy British advertising executive and publisher, husband and father, divorced his wife.
And, according to him, the rumors started. He abandoned them, leaving them with nothing, and so on.
Rightly or wrongly, he believes he has been maligned, criticized, scorned … speculated about.
Yet he believes the settlement was generous, and resents the whispers behind his back.
So, while most wealthy folks going through divorces are more likely to be looking to seal their court files from public scrutiny, this man decided to strike back in a very public way.
He launched a website intended to set the record straight about his divorce.
On the site, he purports to disclose the terms of his divorce settlement.
He hopes it will quell the wild rumors.
Time will tell.
Read more in this UK Independent article: Businessman puts divorce deal on web to stop ‘rumour mill’ and this [India] Economic Times article: Millionaire posts divorce details on net to stop rumours.
Your divorce is finally final. Now you can move on with your life.
Maybe you’d like to start over with a new condo or house. You find the perfect place.
You begin working with a mortgage broker. In the course of your chit-chat, you mention you were just divorced.
Don’t be surprised when your mortgage broker asks you for a copy of your … final judgment of dissolution (also known as divorce decree).
How come?
Read more in this WalletPop article: Mortgage Confidential: Why lenders want to see your divorce decree.
How long does a divorce take? It depends …
Couple marries in 1984. Marriage is a successful partnership of complementary business skills.
Couple prospers. In 1990, Wife in car accident. Husband reportedly drags them down into debt.
Couple separates and, in 1995, files for divorce.
Husband moves to Alabama, never to return to Florida - or its courts. Husband remarries, putting all of his assets into his new wife’s name.
In 2001, Court orders Husband to pay alimony of $6,000 per month plus Wife’s medical insurance. Court also orders property distribution to Wife of $240,000 plus substantial interests in Husband’s businesses and patents. Court also orders Husband to pay Wife’s attorney’s fees.
Husband didn’t comply with court orders, and no income deduction was ever established. Husband was held in civil contempt and indirect criminal contempt and a warrant was issued for his arrest.
All to no avail.
New actions were filed in Alabama, which culminated in court orders awarding Wife considerably less, $162,000. Period.
But Husband paid that amount.
And the attorneys took about half of it and Wife used the balance to pay off marital debt left to her.
Leaving Wife with … nothing.
Although it’s been about 13 years, and the couple has gone through 16 different attorneys and 10 different judges to arrive at that point, Wife hasn’t given up yet.
But her Florida judges have all but flat out told her she is just wasting her time, accumulating more worthless pieces of paper in her court file.
An unsatisfactory outcome, for reasons that are not entirely clear …
Read more in this St. Petersburg Times article: A divorce, unsettled , cited to from the Overlawyered website.
Pensions which are marital property may be divided as part of the marital settlement. But there is a right way and a wrong way to accomplish that.
The right way is to use a Qualified Domestic Relations Order (”QDRO”). QDROs can be complex.
QDROs must comply with detailed retirement plan provisions, and even QDROs already entered by a judge may be ignored by the plan administrator with impunity under certain circumstances.
The moral is that pensions should not be divided as an afterthought or in a rush job. Both parties must work with the plan administrator to ensure that any QDRO is plan-compliant, accomplishes the parties’ objectives in the most advantageous way for both spouses and is entered by the judge simultaneously with the final judgment.
To drive the point home, there are law firms that specialize in drafting QDROs - and nothing else. Division of retirement accounts should not be done informally.
And the division may be deemed property division - or alimony.
Read more in this Chicago Tribune article: Court order needed to split retirement accounts in divorce.
Well-off Nebraska couple divorce. Husband ordered to pay substantial alimony ($12,500 per month for 106 months) plus substantial child support ($5,000 per month).
Husband purchased a $1 million life insurance policy for the benefit of his children, although it is not clear whether that was court-ordered. It appears that no other life insurance was ordered by the Court in the divorce.
It is common for courts to order life insurance, where it is obtainable, to secure both child support and alimony obligations.
After the divorce was final, Wife reportedly sought to purchase an additional $1 million life insurance policy on her ex-husband’s life, but Husband refused to submit to a required physical examination. So Wife sought a court order for the additional insurance.
But the Court rejected her claim.
Under Nebraska law, it is illegal to take out a policy on another person’s life without their consent unless the person whose life is insured will own the policy. It is against public policy, because the purchasing beneficiary would have an interest in the insured’s death.
Once the divorce is final, the law applies to ex-spouses the same as to anyone else.
The Court failed to order insurance to secure the alimony obligation at the time of the divorce because it presumably felt that Wife had adequate resources to carry on in the event of Husband’s death. After all, her net worth is reportedly over $4 million.
Read more in this Omaha World-Herald article: Nebraska court says no life insurance policy for ex-wife.
In lengthier marriages where one partner has been a stay-at-home spouse and parent for most of the marriage, the homebound spouse often asks: should I look to get a job now that I know my spouse and I are going to divorce?
There are differing schools of thought on this important question. And sometimes the answer really depends on all the particulars of a given case.
But whether one generally favors putting off (or avoiding altogether) a return to the workforce or diving back in as soon as possible, there are considerations to bear in mind beyond the current number of dollars of salary potentially traded for dollars of current alimony:
And, of course, the psychological and social benefits of working, which can be very beneficial to people going through divorce.
Read more in this Orlando Sentinel article - Divorce is pending: Is it wise to accept job offer?
Florida Husband (former attorney) ordered to pay alimony.
Ex-Wife diagnosed with terminal cancer.
Ex-Husband reportedly stops paying alimony.
Upon requests for payment, ex-Husband allegedly asked “aren’t you dead yet?”
Ex-wife needs alimony for medicine, housing, etc.
Ex-wife reportedly tried to move the case closer due to health issues. Judge allegedly refused.
An attorney has now offered to help ex-wife without charge.
The reader is left to wonder why an income deduction wage garnishing order was not entered previously.
Sadly, enforcement remains the Achilles Heel of the legal system for far too many dependent former spouses and children. Even those who aren’t dying of cancer.
Read more in this Tampa Bays WTSP-TV 10 news article: Ex-husband stops alimony payments for terminal cancer patient.
Massachusetts man buys lottery ticket.
Man wins $1 million lottery.
All is good in his universe.
Until …
Man gets charged with violating terms of his probation on bank robbery charges.
Not his first probation violation.
Then man is served with contempt of court papers for failure to pay almost $40,000 in back alimony and child support.
Man will not know his fate until next year.
Man’s story illustrates the saying: “be careful what you wish for…”.
Support recipients everywhere got what they wished for in this instance too.
A spokesman for the state lottery issued a statement that state lottery officials would comply with any court order for support.
Read more in this Cape Cod Times article: More bad news for lottery winner.
A sad and unusual scenario.
New Jersey Mother and Father divorce.
Mother is awarded alimony.
Mother and son reportedly get into violent argument at home when Mother is drunk.
Son dies as a result of injuries from fight.
Father is devastated.
Mother goes to jail.
Father falls behind in his alimony payments.
Father seeks modification of alimony obligation, apparently based on the killing of their son. (Not based on substantial change in her needs or his ability to pay.)
The intermediate level appellate court ruled that the killing did not warrant an automatic termination of alimony based on the statute or any legal precedent.
The court did, however, suspend alimony payments pending a final ruling and ordered a lower court hearing on Father’s ability to pay.
It was also noted that the Mother can apply for a modification when she is released from her incarceration.
The court indicated that it is up to the legislature to amend the law if it wants the result sought by the Father.
Read more in this North Jersey Record article: Court cuts alimony to mom who killed her son and this New Jersey Star-Ledger article: Court: No alimony for mom who killed.
Judge orders Nevada millionaire Husband to pay $10,000 per month in alimony.
Husband not happy.
So Husband stabs Wife to death.
Not satisfied, Husband shoots family court judge.
Judge survives.
Husband charged with murder and attempted murder.
Husband pleads guilty.
Husband sentenced to life in prison.
Under the plea agreement, Husband may become eligible for parole after twenty years.
That millionaire showed everyone. He avoided that alimony obligation.
Wonder what he’ll spend his savings on in prison?
Read more in this London Daily Mirror article: Man killed wife - then shot divorce judge.
One of the most common questions in a divorce is whether a spouse can qualify for temporary relief and, if so, how much. In the typical Florida divorce, these are not always easy questions to answer.
But, in one Pennsylvania case, the first question was easy to answer and the answer to the second question was “a shot heard round the bar of family law attorneys”. The case is anything but typical.
A Mellon Bank heir and publishing magnate, a billionaire, is divorcing his wife of more than fifteen years. He earns several million annually.
Pennsylvania, unlike Florida, has a formula for temporary support. The dependent spouse receives forty percent of the paying spouse’s income.
This elegant simplicity led to a court ordering monthly temporary support in this case of $725,000.
It sets an all-time record for temporary support in Pennsylvania - and probably elsewhere too.
The billionaire’s attorneys are, of course, fighting the amount of the award.
Other issues in this unusual case include custody of the couple’s pet Golden Retriever, property division, income determination for purposes of calculating permanent alimony, etc.
Questions about temporary support are still generally tough to answer. But not if the paying spouse is a billionaire.
Read more in this Editor and Publisher article: Scaife’s Wife Gets Giant Settlement After Messy Divorce — Claims Newspaper is ‘Hobby’ and this Pittsburgh Post Gazette News article: Millions up for grabs in Scaife divorce fight.
A South Carolina man embroiled in a drawn out divorce was not very happy with how his case was going.
The court had ordered him to pay temporary alimony and attorneys’ fees to his wife.
And he didn’t want to.
So he devised a way around it - or so he thought.
He allegedly torched his wife’s lawyer’s office.
But that turned out not to be the best way to handle the situation.
In addition to his other troubles, he was charged with stalking, burglary and arson - and held in jail without bond.
This is not a recommended strategy for success in family court.
Read more in this [Columbia, SC] WIS TV News 10 article: Bond denied for man accused of setting Columbia law firm on fire.
Granted, taxes are not foremost in the minds of most couples going through a divorce.
But for couples with sufficient assets, income and civility, tax impact is an important consideration which may be factored into any divorce settlement.
Couples should pay particular attention to alimony, the sale of the house, income tax filing status and timing of the divorce.
An interest in real estate can be transferred from one spouse to another tax-free, but alimony payments are normally taxable income to the receiving spouse.
Capital gains treatment on sale of real estate may favor selling as a couple before the divorce, rather than as a single after the divorce.
For late-in-year divorces, it may pay to wait until early the following year.
In appropriate cases, it may be well worth consulting a tax accountant or tax attorney on the structuring of any divorce settlement.
Read more in this [New Jersey] Courier Post article: Keep your cool in a divorce to avoid tax headaches.
Under the law of California, Florida and many states, the obligation to pay alimony ends when the receiving spouse remarries, among other possibilities.
A divorcing California man agreed to pay his wife a certain sum of money each month as alimony.
After their divorce, his ex-wife registered her domestic partnership with another woman.
Believing the registered domestic partnership to be equivalent to marriage, the man thought he was released from the obligation to pay alimony.
But a California judge disagreed, ruling that the domestic partnership is mere cohabitation and not a marriage.
The man plans to appeal the court’s order that he continue to pay alimony.
The ruling highlights one of the less publicized impacts of the difference between marriage and civil unions or domestic partnerships.
Read more in this San Francisco Chronicle article: Man ordered to pay ex-wife alimony, despite domestic partnership.
A Tennessee dad spent two days in jail in 2002 for failing to make all his child and spousal support payments.
The man claimed his financial circumstances had changed for the worse and that even though his obligations had been reduced, he still just couldn’t meet them.
Tennessee’s high court finally ruled that it was error to jail him, because the former wife hadn’t proved that he had the ability to pay and was willfully refusing to do so.
Armed with that ruling, the man is suing the state of Tennessee in federal court.
Although the former wife may have been entitled to an order of arrears for non-payment, a judgment of contempt warranting jail time requires more than non-payment; it requires willfulness.
Read more in this Memphis WMC-TV 5 article: Man jailed in child support case files federal lawsuit.
A Florida man took his ex to court in an attempt to have his obligation to pay spousal support terminated.
The original support obligation was part of a marital settlement agreement, which provided that support would terminate upon the receiving spouse’s death or remarriage.
The receiving spouse neither died nor remarried.
So what was basis of the former husband’s argument?
His ex-wife is now a man.
Since a man can’t marry a man, a man can’t divorce a man and a man can’t be ordered to pay spousal support to a man, the ex-husband contended.
Good try, but the judge didn’t buy the argument.
The court held that the former wife’s birth gender was what mattered for this purpose and that the sex change operation didn’t qualify as a substantial change of circumstances for purposes of modifying or terminating the support obligation.
The former husband vowed to challenge this ruling as far as he could.
This Florida ruling is consistent with a similar ruling handed down in Ohio a few years back.
Read more in this CNN article: Judge: Ex still due alimony when she becomes he.
Missouri ex-husband stops paying alimony due under an “unmodifiable” divorce settlement.
His defense: he contends that his ex-wife tried to hire a professional hitman to murder him, and he shouldn’t have to finance her misdeeds.
The man’s argument is hampered, however, by a complete lack of corroboration of his allegation. He didn’t even report the alleged attempted murder to the police.
The appellate court posed tough questions about the dangers of opening the floodgates to litigation to terminate support obligations based on nothing more than unsupported allegations of misconduct.
But the ultimate flaw in the ex-husband’s version of events, however, is that the ex-wife has no rational motive for murder. She would lose out on all future support if her ex-husband were murdered.
Read more in this St. Louis Post-Dispatch article: Ex-husband alleges murder-for-hire plot in alimony case.
Ex-husband files without counsel for a downward modification of temporary alimony - because his ex allegedly secretly remarried a wealthy man.
She was gifted with an interest in a $2 million home, which was sold for a substantial profit.
She represented to the court that she was unemployed - when she allegedly wasn’t.
She allegedly blocked his access to the kids.
He’s in bankruptcy court fighting to keep his pension.
He wrote the check for her to go to law school - but she allegedly didn’t.
It’s all part of the slightly colorful aftermath of the divorce of a local former mayor of Miami.
Read more in this Miami Herald article: Former mayor says ex is hardly in distress.
A former New York judge has reportedly accrued $200,000 in arrearages in child support and spousal support since garnishment of his wages ceased when he was thrown off the bench for misconduct.
His ex-wife is doing her best to support their three kids in their metropolitan NYC home on $9.45 per hour.
The ex-judge earned more than $135,000 a year during the marriage.
The deadbeat dad has since moved out-of-state and taken up working as a realtor.
It is unclear why Georgia support enforcement has not enforced New York’s support orders with garnishments of his commissions. It is also unclear whether the former judge has ever been held in contempt of court.
Read more in this New York Daily News article: Ex-judge a real stiff.
A Toronto man is in jail for conspiracy to murder his ex-wife.
His motive: he reportedly didn’t want to pay child support or alimony.
Now his ex-wife is apparently looking to collect previously ordered, unpaid support.
The man allegedly has substantial savings from the sale of a house.
But he reportedly argued in court that he can’t pay support because he is in jail and unable to earn money.
The woman’s attorney had this to say about his argument:
“It’s like the child who kills the parents and then throws himself at the mercy of the court because he’s an orphan”.
Although the judge in the case reserved on his ruling, he did suggest that he expects to order a substantial lump sum award to the ex-wife.
Read more in this Reuters article: Man hopes jail means no support payments.
Divorce has some special twists where one of the couple is a US immigrant.
If one spouse sponsors the other one into the US, the sponsoring spouse typically must swear out an Affidavit of Support, Form I-864. The purpose of this form is, essentially, to assure that an immigrant will not become a public charge, but remain a responsibility of the citizen spouse.
Sponsoring spouses rarely give a thought to swearing out this affidavit when they are trying to bring their loved one into the US. Not so after the relationship takes a turn south.
That affidavit doesn’t mean anything if the couple divorces, does it? Wrong.
The government can hold the sponsoring spouse to the Affidavit of Support.
But that’s not all.
The immigrant spouse can also have the courts order the sponsoring spouse to make good on the Affidavit of Support.
This was confirmed in a recent federal court case litigated here in Florida.
Read more in this Immigration Daily article about the enforceability of affidavits of support in divorces from immigrants.
Divorce Online has published this handy article containing tips on finding Unreported Income and Hidden Assets.
A couple of highlights:
A California appellate court recently upheld termination of spousal support to a domestic abuser and harasser.
The court held that the anti-domestic violence policy behind the statute on which it based its ruling superseded the terms of the parties’ marital settlement agreement, which only allowed modification of support under specified conditions.
The receiving ex-wife was reportedly criminally convicted once of stalking her ex-husband - and subsequently charged again with the same crime. According to the account, the woman was relentless.
The court also pointed out that the alimony was, in effect, funding the ex-wife’s wrongful actions.
Read more in this [Los Angeles] Metropolitan News-Enterprise article.
The Utica (NY) Observer-Dispatcher recently ran an interesting article, New Court Combines Domestic Cases. In upstate NY, the article reports, they have been introducing Integrated Domestic Violence Court.
What’s that? In a nutshell, if family members appear in domestic violence court, any subsequent family legal matters (such as divorce, crimes between family members, custody and visitation issues, etc.) will be heard in that same courtroom, before that same judge.
Here in Florida, we have been gradually implementing throughout our state a variation on that theme. In Florida, we call itUnified Family Court. Under this new paradigm, all family type cases are now heard in a Unified Family Court by the same judge.
Although demanding of our judges and our court clerks, this new court model finally enables and empowers the courts to do what family lawyers have always done: (directly or indirectly) serve the family as a whole.
As part of this transformation of the family court system in Florida, Unified Family Court judges are reportedly receiving more comprehensive training in allied legal disciplines than previously. With a thus specially-trained presiding judge observing the entire family dynamic firsthand, he or she will be in far better position to rule holistically on all family-related legal issues.
As a bonus, the legal process should also be less disruptive and more beneficial for families.
The Libertarian Party’s candidate for North Dakota’s governor in 2004 has authored an unusual divorce initiative which he hopes will land on the state’s voters’ ballots later this year.
The initiative would:
Anyone who wants to learn more about this unusual initiative can read the Grand Forks Herald article.
The year was 1987.
She asked for $1 million as her share of the property division. He refused.
Early on the day of the hearing on whether to set aside their postnuptial agreement, she was murdered by a professional killer.
Law enforcement favored him as the suspect most likely behind it.
Now, a former local Palm Beach resident is standing trial in Georgia for the murder of his wife.
In this unusual case, the wife’s former divorce attorney is a key prosecution witness.
If convicted, the husband may face the death penalty.
You can read more about this case in the Palm Daily News or on CourtTV.com.
Just don’t model own divorce after it.
Back in September, I posted on the topic of Artificial Intelligence Previews Alternative Final Judgments. My post was totally inspired by an article I had read in the Sydney Morning Herald about a software project in Australia. You can read my original post with the text of the Herald article here.
One of the developers of the profiled software, Professor John Zeleznikow of the School of Information Systems at Victoria University, recently e-mailed me with some comments on my post. I thank Professor Zeleznikow for his readership, for sharing his insights and for granting me permission to post his comments below.
A very interesting article.
I think you have misunderstood some of our research. Reading a
newspaper article does not give the full details of our work.First of all, we do not claim everything can be reduced to rules. In
some areas we use machine learning to try to understand patterns of
judicial decision making. And we accept there should be no
inferencing re child welfare or refugee law.In Australia, child support is mandated - the court has no discretion.
We have learned how judges distribute property.
We do not argue that child custody should be awarded to a parent
simply because that parent wants it the most and allocates the most
points to it. In fact we explicitly say interest based negotiation is
more relevant to industrial relations than child welfare issues.In Australia, parents do not have automatic rights to see for or care
for their children (the only test is the paramount interests of the
child). Nevertheless, some parents still negotiate as if they own
their children.
I stand by my original post, which, like my comments in this post, are about family law dispute resolution software generally and not about any specific piece of software in particular . As to the Victoria University software project, I have no specific firsthand knowledge or experience with it.
Still, I don’t think Professor Zeleznikow and I are in disagreement.
Rather, I think my original post focused on why I think the glass is half empty with respect to family law dispute resolution software in general. And Professor Zeleznikow’s comments focus on why he thinks the glass is half full.
I think we both agree on what it is that is in the glass though.
I look forward to following the progress, evolution and adoption of Professor Zeleznikow’s intriguing software in the field.
A recent Pennsylvania case takes up a difficult issue: how should a paying spouse’s dramatic drop in income impact an award of alimony?
According to the article below from the Pennsylvania Law Weekly, the general rule in Pennsylvania seems to be that where that loss of in income is the result of alcohol abuse, an award of alimony should be based on the paying spouse’s higher earning capacity rather than the spouse’s lower actual income.
In the particular case reported on, however, while the the paying spouse did have an alcohol problem, the spouse seeking alimony did not prove that the paying spouse’s alcohol problem was truly the cause behind his pay cut. Instead, there appeared to be other factors that accounted for it or contributed to it. Therefore, in that particular case, the court based the alimony award on the paying spouse’s actual reduced income.
In certain cases, Florida courts also will look to a spouse’s earning capacity instead of actual income. In Florida, we call that imputing income to that spouse and courts may do it in a child support case as well as an alimony case.
But, unlike Pennsylvania, the Florida courts have not carved out a consistent general rule about loss of income from alcohol.
Family Law Allegations of Alcohol Abuse Fail to [sic] Reduce Alimony Obligation
Melissa Nann Burke; Special to the Pennsylvania Law Weekly
September 12, 2005
Without a finding that an alcoholic parent lost his job because of substance abuse, the alimony he must pay his wife and children should be assessed based on his earnings and not his earning capacity, a state appeals court has ruled.
So instead of having the alimony based on the six-figure income he had been earning earlier, it was based on his current earnings that were less than $20,000.
The court relied on a ruling from 2000 holding that an obligor who lost work due to drug or alcohol abuse is deemed to have voluntarily lost the employment.
In an unpublished ruling, the Superior Court concluded this wasn’t proved in Aungst v. Aungst, PICS Case No. 05-1417 (Pa. Super. Aug. 19, 2005) memorandum (12 pages).
a three-judge panel rejected the arguments of Suzanne Marie Hepfer Aungst, who claimed her husband lost his business and income of $120,000 to $150,000 a year because of a “deliberate” act - substance abuse.
She claimed her husband’s decrease in income - earning less than $500 a week - was, under the circumstances, voluntary.
She wanted the court to impose a support obligation based on her husband’s earning capacity rather than his current income, according to the opinion.
The Aungsts’ daughters are ages 14 and 16, and the couple have since divorced, said John A. Prodoehl, attorney for Suzanne Aungst.
“If you get drunk and lose your job, you still have to pay your mortgage,” said Prodoehl, who practices in Media, Pa. “If you get drunk and lose your job, you should still have to support your children.”
The appeals panel summarized the Superior Court opinion, Laws v. Laws, 758 A.2d 1226 (Pa. Super. 2000), this way:
“If an obligor loses his or her job due to drug or alcohol abuse, it is deemed to be a voluntary loss of employment. He or she will then be assessed a support obligation based on earning capacity rather than actual earnings.”
But the Delaware County trial court found last year that Aungst’s husband, William Harrison Aungst III, had not deliberately reduced his earning capacity.
The trial judge said Aungst’s business could have failed “maybe for reasons of alcohol problems,” but “that may be one of many, many reasons [that] it failed.”
Aungst also had an accident after losing his business.
According to the opinion, he came in contact with a bolt of electricity that caused him to fall nearly 40 feet from a ladder and suffer brain damage.
David DiPasqua, who represented Aungst, said: “Two things happened: He got electrocuted, and he tried to start his own business and failed, in part because of the drinking.”
The Superior Court panel said Aungst presented a factual distinction from the Laws case.
“The Laws holding was based on a factual finding that the applicant ‘lost employment because of alcohol addiction and substance abuse,’” the panel explained.
“Without such a finding, Laws is inapplicable.”
In so holding, the panel concluded the trial court had not abused its discretion when it based Aungst’s support obligation on his actual earnings instead of on what he made before his business failed.
Judges Maureen Lally-Green, Jack A. Panella and Senior Judge Stephen A. McEwen Jr. participated in the decision.
On appeal, Suzanne Aungst also had argued that the trial court should have considered her husband’s real estate assets, worth approximately $500,000.
According to the opinion, William Aungst owns six properties in Darby, Pa. - five stores and one house - valued at close to $500,000. After expenses, his income was about $900 a month, and his mother pays the property taxes and some of the other property expenses.
The Superior Court said Suzanne Aungst had waived the issue “for failure to develop any supporting argument.”
The court said Suzanne Aungst had also waived her argument that the court should have required her husband to provide medical insurance for the family.
William Aungst testified that his business ended in mid-2002.
Starting in 1999, he made $19,000 a year. According to the opinion, Aungst was living with his mother and has admitted to having a drinking problem.
Suzanne Aungst filed her petition for spousal and child support in January 2004.
Later that year, the trial court ordered William Aungst to pay $562 monthly to his wife and $831 monthly to support the children, according to the opinion.
For educational purposes only and not intended to infringe on Copyright 2005 ALM Properties, Inc.
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