The Legal Intelligencer Blog

Can a Parent Bargain Away Child Support?

By James W. Cushing
Special to the Legal

When litigating a family matter, which generally involves the intersection of divorce, support and custody matters, practitioners and parties often try to find creative solutions to very sticky problems, many of which can have a significant impact on a person’s life. One way to attempt to bring a family matter to a resolution that some attorneys and parties consider, or even try, is to negotiate the payment of child support in consideration of gaining bargaining rights or negotiation room on some other issue, such as child custody or property distribution.

Agreements regarding the elimination of child support are generally found in matters where one parent is willing to give up all or almost all of his or her right to custody in exchange for being released from any obligation to pay support. For example, a common contract is for the custodial parent (most often the mother) to agree to not seek child support from the noncustodial parent in exchange for the noncustodial parent (most often the father) not seeking custody of the child.

Pennsylvania courts have, for the most part, deemed any agreement to bargain away a child’s right to support as against public policy and unenforceable; however there are a couple of exceptions. Pennsylvania courts have found, time and again, that a child has a right to receive child support and that a parent does not have a right to enter into a contract to avoid ensuring the support of that child. It should be noted, also, that the court has found (arguably through dicta) that, generally speaking, one cannot bargain away child support for a child resulting from a sexual relationship of any kind, including those involving so-called “one-night stands,” adultery or accidents (including when the woman deceives the man regarding her contraception use).

Despite the above, however, the courts have been consistent in ruling that men who donate sperm to allow for conceptions which are the result of anonymous and artificial insemination are, by definition, free from the obligation to pay child support. Similarly, and rather interestingly, the court recently ruled that men donating sperm for artificial insemination do not have to remain anonymous to the recipient of that sperm in order to be free from the obligation to pay support to the resulting child(ren). As long as the insemination process follows standard clinical procedures, the sperm donor will be free from the obligation to pay child support regardless of whether his identity is known to the mother.

Aside from artificial insemination, the only exception to the general ban on contracts that bargain away child support is an analysis into whether the child(ren) at issue are actually being supported without the potentially requested child support. The court has implied that the rule is not that one cannot bargain away child support but whether one can bargain away “adequate” child support. Of course, precisely what makes support adequate is decided on a case-by-case basis and depends on the economic realities for all of the parties involved. Therefore, a noncustodial parent can be released from the obligation to pay child support so long as the contract to do so was fair and reasonable, without fraud and coercion, and, most importantly, does not prejudice the welfare of the child(ren) at issue.

For example, say a woman has a child by one man out of wedlock but ultimately marries another man. Her husband is financially able to, and actually does, support his wife’s child from the other man. The woman and father in this scenario can enter into an agreement to release the father from the payment of child support so long as the child is adequately supported; therefore, the agreement will be enforceable against the establishment of a child-support order as long as this is the case. However, as soon as the husband discontinues the support of the child (say because of the divorce of the husband and mother) the agreement to release the father from a child-support obligation becomes unenforceable. The central issue of analysis is this: Is the child adequately supported by the custodial parent or some other source, absent the potential child-support order? If yes, then an agreement to bargain away child support is enforceable.

Cases to consider regarding the issues addressed in this article include: Miesen v. Frank, 361 Pa.Super. 204 (1987); Roberts v. Furst, 385 Pa.Super. 530 (1989); Kesler v. Weniger, 744 A.2d 794 (Pa.Super. 1999); and Ferguson v. McKiernan, 596 Pa. 78 (2007).

James W. Cushing is an associate at the Law Office of Faye Riva Cohen P.C., research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.

Philadelphia Bar Names Tarasiewicz Executive Director

By P.J. D’Annunzio
Of the Legal Staff

The Philadelphia Bar Association announced the selection of Mark A. Tarasiewicz as its new executive director, according to a press release.

Tarasiewicz will succeed Kenneth Shear, who will retire December 31 after 37 years in the position.

Tarasiewicz most recently has served as associate executive director of the PBA. In that role, he has directed the bar’s communications. He joined the PBA in March 1995 as senior public relations associate.

Tarasiewicz previously worked as managing editor of the Pennsylvania Law Journal, a former sibling publication of The Legal.

 

NCAA Eases Sandusky-Related Scholarship Sanctions Against PSU

By Zack Needles
Of the Legal Staff

The National Collegiate Athletic Association has announced it will begin gradually restoring the football scholarships Penn State lost as part of the sanctions related to the Jerry Sandusky sex-abuse scandal, allowing the university to return to the full complement of 25 initial and 85 total scholarships two years earlier than originally planned.

As part of the sanctions the NCAA imposed in July 2012, Penn State was originally required to reduce its annual scholarships to 15 initial and 65 total scholarships for four years, beginning with the 2014 season.

But in a statement released Tuesday, the NCAA said it would be easing back on those sanctions due to the university’s “continued progress toward ensuring athletics integrity.”

“Beginning next academic year (2014-15), five additional initial scholarships will be restored to the university’s football team,” the NCAA said in the statement. “This amount will continue to increase until they reach the full allocation of 25 initial in 2015-16 and 85 total football scholarships in 2016-17.”

The NCAA added that “the existing postseason ban, $60 million fine to help fund child-abuse programs and other sanctions outlined in the consent decree will remain in effect.”

“However, the group may consider additional mitigation of the postseason ban in the future depending upon Penn State’s continued progress,” the NCAA said.

According to the NCAA’s statement, George Mitchell, the independent athletics integrity monitor for Penn State, had recommended that the scholarship sanctions be relieved.

Mitchell said in the statement that doing so “will give more student-athletes an opportunity to attend Penn State on athletics scholarship while also creating an incentive for the university to continue its progress under new leadership” following the retirement of Penn State President Rodney Erickson in June 2014.

Zack Needles can be contacted at 215-557-2493 or [email protected]. Follow him on Twitter @ZNeedlesTLI.

Combating Employee Theft

By Colleen S. Vallen
Special to the Legal

As a forensic accountant, I often am hired when a client is concerned about inappropriate employee behavior and needs these concerns analyzed and addressed. In recent years, I have worked on a number of cases involving employee theft. As a result of this work, I have identified common themes present in a number of these cases.

A critical common element is reliance and trust between the employee and business owner. The employee typically develops a relationship with the owner where the employee is valued and relied upon. The employee often attempts to informally define his or her role as the person to relieve an overburdened owner of his or her workload; the employee takes control of daily business functions, freeing the owner to focus on more important business functions. This allows the employee to gain additional knowledge and access to the business’ processes and systems while limiting oversight of the individual’s activity. This is particularly an issue for smaller businesses, as the ability to segregate duties and implement controls often is challenging. As an employee becomes trusted and takes on more roles, the ability of the employee to perpetrate and conceal theft increases.

Another common theme is that the employee is knowledgeable about the business. The employee uses this knowledge to build confidence and credibility with the employer. This knowledge, however, also provides the employee with key information on the company’s policies and procedures and its internal control structure, as well as an understanding of what oversight, if any, exists. The employee often knows more about how the business functions than the owner. The employee uses this information to identify weaknesses in the systems and then exploits them to perpetrate and conceal theft.

Another theme centers on complexity. The employee frequently creates complexity in financial transactions to make it difficult for others to understand. Complexity provides two benefits. First, it enhances the employee’s value to the business, as he or she is seen as able to manage important, challenging issues. Complexity also provides the employee the ability to respond to questions that may be raised about inappropriate activity. The employee can weave an explanation that may sound plausible but not be clearly understood by the employer. This often extends the length of time the theft occurs, as early warning signs that may have uncovered the scheme are explained away.

For example, in one case, an employee was using corporate funds to pay personal credit card balances. The employee had built a relationship with the owner of the business and had advanced in the company. Throughout the employee’s tenure, the employee’s responsibilities increased and by the time the theft was identified, the employee had taken on most of the financial responsibilities of the business. The employee understood the company’s processes surrounding payables and used this knowledge to take funds from the company. The employee prepared company checks to pay personal credit cards. Instead of getting these checks signed with the legitimate payables, the employee would hold these checks aside and use a check stamp. The company’s normal procedure was to have the owner review and sign the checks, but a check stamp existed for emergency occasions. The employee was able to gain access to this check stamp and use it to sign the unauthorized checks. Further, the employee was handling the transactional recording in the general ledger systems and performing the back reconciliations, so the employee was able to conceal the fraud from the owner of the business.

While there is no magic answer to prevent employee theft, a business owner should consider reviewing all policies and procedures and internal control systems. Identifying areas of weakness can help a business monitor its financial information more effectively. Also, a business owner should consider routinely adding something new to oversight processes. As discussed above, employees who commit theft understand the business systems. Adding a new level of oversight or reviewing data not typically reviewed makes it more difficult for an employee to target weaknesses in the systems. Finally, although this seems fairly straightforward, a business owner should independently review the bank statement, including canceled checks, as these checks often contain information that would identify suspicious transactions.

Colleen S. Vallen is a partner in Citrin Cooperman Philadelphia’s valuation and forensic services group. An expert in the field of forensic and investigative accounting, she focuses her attention on forensic and fraud investigations, the preparation of financial damage analysis and litigation support. She is also highly experienced in the analysis, investigation and review of financial documents, as well as case planning and management, financial and economic analysis, expert report preparation, oral presentation of findings and assistance with discovery, interrogatories and depositions. She can be reached at [email protected] or 215-545-4800.

 

ARAMARK GC Rejoins Duane Morris

By Zack Needles
Of the Legal Staff

After eight years as senior vice president and deputy general counsel of ARAMARK Corp., John C. Ryan has rejoined Duane Morris in Philadelphia, where he had previously been a partner.

Ryan has rejoined the firm as a partner in its trial practice group. He focuses his practice on white-collar criminal defense and internal corporate investigations.

Ryan first joined Duane Morris in 1999 and became a partner in 2004 before leaving for ARAMARK in 2005.

Three Appointed to Judicial Conduct Board and Disciplinary Court

By Max Mitchell
Of the Legal Staff

Two nonlawyers and one Superior Court judge have been appointed to fill vacancies on the board that investigates alleged judicial misconduct and the court where the judicial misconduct allegations are tried.

The Pennsylvania Supreme Court has appointed Superior Court Judge Jack A. Panella to the Court of Judicial Discipline. Earlier this month, Governor Tom Corbett appointed Kenneth E. Lawrence Jr. and Thomas M. Tigue to the Judicial Conduct Board.

This will be the second time Panella has served on the Court of Judicial Discipline. He previously served on the disciplinary court from 1997 to 2001. Panella previously served for 12 years as a trial judge in Northampton County, and most recently has served on the Superior Court since 2004.

“Jack has served the people of Northampton County and the state of Pennsylvania well for several years and will be an outstanding addition to the Court of Judicial Discipline,” Pennsylvania Chief Justice Ronald D. Castille said in a statement to the press. “He is a proven leader with outstanding credentials to serve in Pennsylvania’s judiciary disciplinary oversight system.”

Tigue is a former member of the Pennsylvania House of Representatives, who served from 1981 until 2006, and Lawrence is the senior vice president for government, community and public affairs for Temple University. Lawrence will fill the unexpired term of Francis Bianconi, who passed away this spring. The term will expire on August 16, 2014. Tigue’s four-year term will expire on September 3, 2017. Both Tigue and Lawrence are Democrats.

Marshall Dennehey Band to Compete at Rock and Roll Hall of Fame

By Alexa Woronowicz
Of the Legal Staff

Class Action, the in-house rock-and-roll band at Marshall Dennehey Warner Coleman & Goggin, is scheduled to perform in the final round of the 13th annual Fortune Battle of the Corporate Bands competition September 28 at the Rock and Roll Hall of Fame and Museum in Cleveland.

The band received notice in August that it was selected as one of two “wild card” finalists to compete in the last leg of the contest against seven other bands for the title of “Best Corporate Band in North America,” according to a release.

The Fortune Battle of the Corporate Bands supports the museum’s educational mission and provides amateur, company-sponsored bands with the opportunity to showcase their passion for music.

Class Action was formed 10 years ago when shareholder Steve Ryan and attorneys Frank Wickersham, Brad Goewert and Bill Conkin discovered a shared affinity for playing rock and R&B/soul music, according to a release.

It has since developed into a full-fledged show band with guitars, bass, drums, keyboards and a four-piece horn section.

For tickets or more information about the Fortune Battle of the Corporate Bands, visit www.rockhall.org.

Pictured, from left, are band members Conkin, Chris Boyle Jr., Mark Mattioli, Nicolai Schurko, Howard Dwoskin, Goewert, Jodi O’Connor, Ryan, Ed Galang, Joseph Hoynoski III and Wickersham.

 

Law Abolishing Jury Commissioner Offices Ruled Constitutional

By Max Mitchell
Of the Legal Staff

The Pennsylvania Supreme Court has ruled that a Pennsylvania law abolishing jury commissioner offices did not violate the Pennsylvania Constitution.

On September 17, the Supreme Court issued an order affirming the Commonwealth Court's July 31 decision to uphold Act 4 of 2013, which Governor Tom Corbett signed in May. The law allows counties to elect to abolish jury commissioner officers.

During oral arguments before the Supreme Court last week, Samuel C. Stretton, counsel for the Pennsylvania State Association of Jury Commissioners, argued that the jury commissioner office plays a key role in the judicial system, and therefore the law is a violation of the separation of powers doctrine and an unlawful delegation of powers to the county governing bodies. John Bartley Delone, of the state Office of Attorney General, argued that the law will only abolish the administrative offices, and that the judiciary will retain control of the court.

The Supreme Court order noted that Justice Debra M. Todd dissented from the opinion. The order further said that opinions on the decision will follow.

- Read more about it in an upcoming issue of The Legal.

 

Arguments in Venue Case Delayed Until November

By Zack Needles
Of the Legal Staff

Bratic v. Rubendall, in which the Pennsylvania Supreme Court was scheduled to hear arguments in Philadelphia today, has been continued until an upcoming oral argument session in Harrisburg in November.

The court granted the continuance on Tuesday.

The justices have agreed hear arguments in Bratic over whether a suit against Harrisburg law firm Keefer Wood Allen & Rahal and other defendants should be moved from Philadelphia to Dauphin County, where eight key witnesses are located.

Phila. Legal Community Holds School Supply Drives

By Alexa Woronowicz

Of the Legal Staff

Philadelphia’s legal community recently hosted two school supply drives for needy students in the area.

The Philadelphia Bar Association’s young lawyers division and the Pennsylvania Bar Association’s minority bar community outreach committee sponsored its first “Back to School Supply Drive.”

Martin LLC hosted the final collection night of the drive August 27 at the firm’s office.

The purpose of the drive was to obtain donations such as backpacks, binders, paper and pencils for “students in economically challenged areas of the city,” according to a release.

All of the supplies were distributed to local schools and recreation centers throughout Philadelphia, a release said.

Maria E. Bermudez-Harris, an associate with Martin LLC, is the current vice chair of the Philadelphia Bar Association’s young lawyers division.

Pictured in the group photo on right, from left, are Ashley Scarpone, marketing assistant with Martin LLC; Prince Altee Thomas of Fox Rothschild; Rachel M. Caulfield of the Coalition of Cancer Cooperative Groups; Bermudez-Harris; Aneesh Mehta of Volpe and Koenig; Teresa Rodriguez; Ali Soscia, secretary with Martin LLC; Prince Holloway of Kolsby Gordon; and Ashley Martin, a paralegal with Martin LLC.

White and Williams also ran a school supply drive as part of its Adopt a School Initiative.

The donations supported students at Spring Garden Elementary School in Center City Philadelphia.

Pictured, from left, are Francis Sonsini; Guy Cellucci, chair of White and Williams; Maulin Vidwans, chair of the firm’s business department; Amy Vulpio; and Bill Doerler. In front, from left, are Olga Kurganova and Joseph D. Mirarchi.