1 house of representatives … of representatives commonwealth of pennsylvania * * * * ... honorable...
TRANSCRIPT
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HOUSE OF REPRESENTATIVESCOMMONWEALTH OF PENNSYLVANIA
* * * *
House Bills 983 & 1250 Alimony Pendente Lite
* * * *
House Judiciary Committee Subcommittee on Family Law Public Hearing
Main Capitol Building Room 140 Harrisburg, Pennsylvania
Tuesday, May 23, 2017 - 9:30 a.m.
--oOo--
COMMITTEE MEMBERS PRESENT:
Honorable Sheryl M. Delozier, Majority ChairwomanHonorable Kate A. Klunk Honorable Jerry KnowlesHonorable Rick Saccone Honorable Ron MarsicoHonorable Tim Briggs, Minority ChairmanHonorable Tina M. DavisHonorable Joseph A. Petrarca
1300 Garrison Drive, York, PA 17404 717.764.7801
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NON-COMMITTEE MEMBERS:
Honorable Becky CorbinHonorable Garth D. Everett Honorable Barry J. JozwiakHonorable John A. Lawrence Honorable Tedd C. NesbitHonorable Tarah ToohilHonorable Dom CostaHonorable Madeleine DeanHonorable Joanna E. McClintonHonorable Brandon P. Neuman
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STAFF MEMBERS PRESENT:
Thomas Dymek Majority Executive Director
Anna Malcein, Esquire Counsel to Committee
Sarah Speed Minority Executive Director
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INDEX OF TESTIFIERS
TESTIFIERS PAGE
Opening remarks by Majority Chairwoman Delozier............................ 9
Remarks by Representative John Lawrence 6
Remarks by Representative Tim Briggs.. 8
Shannon Bowman........................ 12 Constituent of Representative Delozier
Michael Lamoreaux..................... 18 Constituent of Representative Peifer
Lori K. Shemtob, Esquire.............. 30 American Academy of Matrimonial Lawyers
Mark R. Ashton, Esquire............... 40 Chair, PA Bar Association Family Law Section
Christina Hazelwood................... 60 Constituent of Representative Lawrence
Ellen Kramer, Esquire Deputy Director of Program Services. 66 Coalition Against Domestic Violence
SUBMITTED WRITTEN TESTIMONY
(See other submitted testimony and handouts online.)
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MAJORITY CHAIRWOMAN DELOZIER:
Appreciate everyone being here. I'm Sheryl
Delozier, and with my colleague here,
Representative Briggs, we are chairing the
subcommittee for the House Judiciary Subcommittee
on Family Law, and we're hosting this public
hearing. I appreciate everyone that was able to be
here today. And I'll take a few minutes just to
allow the members to please introduce themselves.
REPRESENTATIVE LAWRENCE: Representative
John Lawrence; Chester and Lancaster County.
MS. MALCEIN: Anna Malcein, counsel to
the committee.
MR. DYMEK: Tom Dymek, Executive
Director.
REPRESENTATIVE BRIGGS: Representative
Tim Briggs.
Go ahead.
MS. SPEED: Sarah Speed, Democratic
Executive Director.
REPRESENTATIVE MARSICO: Representative
Ron Marsico; parts of Dauphin County.
REPRESENTATIVE DAVIS: Tina Davis; Bucks
County.
REPRESENTATIVE KLUNK: Good morning.
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I'm State Representative Kate Klunk from York
County.
REPRESENTATIVE PETRARCA: State
Representative Joe Petrarca.
REPRESENTATIVE DEAN: Madeleine Dean;
Montgomery County.
REPRESENTATIVE NESBIT: Ted Nesbit;
Mercer and Butler County.
REPRESENTATIVE NEUMAN: Brandon Neuman;
Washington County.
REPRESENTATIVE TOOHIL: Good morning.
Tarah Toohil; Luzerne County.
MAJORITY CHAIRWOMAN DELOZIER: Okay.
Thank you very much.
We have two bills that we will be
dealing with today, Representative Lawrence's bill
and my bill, that are on the agenda. And I have a
few opening remarks that I will make, but I'll hand
it over to Representative Lawrence to make his
comments and then I will make mine.
REPRESENTATIVE LAWRENCE: Thank you,
Chairwoman Delozier, Chairman Briggs, members of
the committee. I appreciate the opportunity to
make some brief remarks at the beginning of the
hearing regarding House Bill 983, legislation that
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Representative Neuman and I have collaborated on to
address needed changes in Pennsylvania's alimony
pendente lite statute.
It may surprise the committee to learn
that today, in Pennsylvania, a victim of domestic
violence can be compelled to pay APL to their
abuser. Think about that. Imagine being ordered
by a judge to pay monthly support to an individual
who pled guilty to beating you.
The original intent of APL is noble; to
ensure that, during a divorce, a partner is not
left impoverished or severely financially
disadvantaged. APL, a kind of temporary alimony,
stays in place until the divorce is settled.
However, I would suggest to the committee that the
law, as it stands today, does not contemplate the
circumstance where one of the parties to the
divorce is a victim of domestic violence.
Imagine, if you will, the following
scenario: A successful, professional woman is
assaulted by her husband, who earns significantly
less in salary than she does. The husband is
charged and pleads guilty to assault.
Subsequently, during the divorce proceedings, the
abusive husband petitions the court for APL. This
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request is nearly always granted since existing law
provides no exception for domestic violence, even
in the case where the abuser has pled guilty to the
crime. In this example, the woman is now legally
obligated to pay her abuser until the divorce is
settled. Of course, the abusive husband now has an
incentive to drag out the process for as long as
possible.
House Bill 983 seeks to rectify this
issue. The bill would provide that, unless there
are exceptional circumstances, an individual would
not be required to pay APL to their abuser. This
small change in the law would have a major impact
in the lives of those who have faced the challenges
of domestic violence.
I thank the committee for the
opportunity to speak to this legislation today, and
for holding this hearing, and I look forward to
hearing the testifiers.
Thank you, Madam Chair.
MAJORITY CHAIRWOMAN DELOZIER: Thank
you. I'll hand it over to my Co-Chairman,
Representative Briggs.
REPRESENTATIVE BRIGGS: I just wanted to
thank the Chair for hosting today's hearing. When
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I saw these bills come across, it definitely raised
some concern when you start tweaking with support
and the alimony pendente lite. It matters that --
You know, I thought it was worth having a
conversation about how they actually would affect.
I wouldn't want to do anything that would
negatively hurt the spouse in these dealings. So,
thank you for that.
I don't have any prepared remarks. I
just wanted to put that on the record.
MAJORITY CHAIRWOMAN DELOZIER: Okay.
Thank you very much.
And I agree wholeheartedly. That's why
we're having the hearing, so that we can talk about
both bills on an issue that does not come up very
often but certainly is one that we need to be
dealing with and making sure that all of the issues
are, you know, ferreted out and we have the needed
discussion. And if there's changes that need to be
made in either situation on either bill, House Bill
1250 and House Bill 983, we can do that and try to
reach those compromises.
I want to introduce -- There's two
people that I have with me today that I just wanted
to give a shout-out to. I have Lucas Cunningham,
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who attends Red Lane High School, and he is here
today as a guest page. And Ryan Stevens from my
district office is also here. So thank you both
for being here to see what's going on here at the
legislature.
I have a few remarks on my bill in
particular and then we'll get to the first panel.
As we move through these two bills --
And we've talked about APL. APL is an important
part of our court system. It's also one that few
people know about. I have to say, I personally was
not familiar with it until individuals from my
constituency came; had a discussion about what the
situations were going -- were happening in the
court system and changes that might be available
for the legislature to step in and try to correct
some issues that many people were having.
APL, as we've mentioned, is a temporary
financial support that one spouse may receive from
the other during the divorce being settled. Many
people assume that there's automatic spousal
support or there's automatic child support, and
that's not true. This APL is in place during the
-- those things are settled and the actual divorce
is had; to be finalized.
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The purpose of APL is to ensure that,
during this time, a financially-dependent spouse
can adequately support themselves at the same time
and can afford to litigate and negotiate the
divorce and property settlement on fair footing,
and we want to continue to make sure that that is a
fact.
Whenever APL is reasonably necessary to
achieve this purpose, it should be awarded, and I
have no issue with the APL system or the ability to
use the formula. The issue is also that not every
case is cookie-cutter, and not every case should be
necessarily seen as exactly the same.
The norms have changed considerably over
the last several decades, and the reason for APL
being put into place, where one spouse may be a
stay-at-home where the other one is the sole
income; and if one leaves a marriage, then one is
left destitute, and that is not -- that is why APL
was put into place; so that we would not have that
and that the family and the children and the
household requirements could be continued.
So, right now, we're taking a look at
these -- how it is based on many conversations that
I have with my constituents. I've talked to many
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judges that deal with family law. I've talked to
many attorneys that deal with family law. And
we've come up with this bill, because the ability
for us -- Like I said, if there's tweaks needed, we
need to make them, and we need to make sure that it
is a fair process.
The ability for us to -- does not always
-- My bill, I want to emphasize, does not do away
with any of the guidelines; does not change the
specific guidelines; does not change the formula.
What it does is, allow for -- Like I said, not
every situation is a cookie-cutter.
So we need to make sure that the judges
have discretion. They have it now. We want to
make that they have, maybe, some additional
discretion in order to recognize the situation of
every case.
So, with that, Representative Lawrence
has mentioned his bill. And with that, I'll call
up the first panel. We have Shannon Bowman, who's
my constituent, and we also have Mike Lamoreaux,
who's a constituent of Representative Peifer.
If you'll please come up to the --
(Paused). Yeah, if both of you can come
up -- There you go. Both of the testimony has been
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supplied. But, with that, I will hand it over to
Shannon, and she can tell us about your concerns,
and we've had many concerns about the issues
dealing with your case. But, thank you for sharing
them with us today and your insights on it. Thank
you.
MS. BOWMAN: Thanks.
Alimony pendente lite and spousal
support are a means of legal extortion and a way
for people, like my husband, to divorce and
prosper. It turns the institution of marriage into
an injustice.
I was naive to not have researched or
even heard about APL or spousal support and to
marry someone who made less money than I do, and
now I am being punished for those mistakes. My
husband and I met on eHarmony and were married for
only 28 months. As of now, I have paid 14 months
of support, half the duration of my marriage.
My husband wasn't a stay-at-home spouse.
He's able-bodied, and he is gainfully employed full
time. In fact, he testified that he makes over
$72,000 per year, almost $22,000 more than a
household income in this area makes; yet, he claims
he cannot support himself.
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His net income is $4,365 per month, and
he testified that his monthly expenses are only
$3,320 a month, leaving him with over a thousand
dollars per month in expendable income. Excluding
two post-separation expenses--a car payment for a
2016 vehicle he purchased after we were separated
and legal bills for our separate matter of child
custody, which is not included in our divorce
litigation--he has over $1,900 per month in
expendable income. Yet, he claims he is without
sufficient funds to support himself, he is unable
to appropriately maintain himself, and he is unable
to reasonably sustain himself through appropriate
employment through this litigation.
He continues to go out socializing,
golfing, vacationing and gambling with support
money that he subtracts from his child support
obligation while I save child care expenses through
the generosity of my parents who provide free
full-time day care for our son.
Domestic Relations applied a standard
guideline and, for the first five months of our
separation, the amount of support I owed my husband
entirely negated his child support obligation, and
I had sole legal and primary physical custody of
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our child while he had three hours a week of
supervised visitation. When he stopped getting a
credit for the supervised visits, which is an
entirely separate problem with Domestic Relations'
calculations, my husband has only paid $100 a month
in child support, even though I have 92 percent
custodial time.
My husband testified that he spends $300
a month in diapers and toddler food for less than
75 hours of time spent with our two-year-old. My
husband also testified that he spends over $600 a
month on utilities for a two-bedroom apartment that
rents for 925 a month.
When the spousal support APL obligation
is transferred, my husband ends up with more
disposable monthly income than me. Factoring in
our monthly net incomes, my transfer of support
money to him, and only our housing expenses--
meaning his rent and my mortgage, taxes and
insurance--he has over $500 more per month in
disposable income. He gets to have more disposable
income than me, and he only contributes $100 a
month in child support, which leaves me with nearly
the entire financial responsibility for caring for
our son.
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Title 23, Chapter 27 (sic) uses the word
may; not shall: In proper cases, upon petition,
the court may allow a spouse reasonable alimony
pendente lite, spousal support and reasonable
counsel fees and expenses.
However, in practice, Domestic Relations
uses an income disparity between the parties as the
determining factor.
In 2010, Pennsylvania Civil Rules of
Procedure 1910.16-1 (c)(2) was changed to say: The
trier of fact shall consider the duration of the
marriage from the date of marriage to the date of
final separation. The explanatory comments said it
was changed to prevent the unfairness that arises
in a short-term marriage when the obligor is
required to pay support over a substantially longer
period of time than the parties were married, and
there is little or no opportunity for credit for
these payments at the time of equitable
distribution.
In my scenario, I guess my husband will
only collect support for four months less than the
duration of our marriage, so the law considers that
fair.
Additionally, the explanatory comments
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state: Subdivision (c) has been amended to require
the court to consider the duration of the marriage
in determining the duration of spousal support or
alimony pendente lite award.
But again, in practice, the court is not
making those considerations and, instead, relies on
the standard guideline that the award continues
until the divorce is finalized, which also includes
appeals.
My husband filed for divorce in March
2016 but is now withholding his consent so that he
can continue to claim the spousal support/APL for
the full two years that he is entitled to. Consent
law was recently changed to one year, rather than
two; but, unfortunately, my case is not
grandfathered. Thus, my husband can continue to
delay the divorce litigation to avoid paying his
appropriate amount of child support.
The other gross injustice of this whole
thing is that, because Domestic Relations has
offset the child support obligation with wife's
obligation to support husband, I'm not able to
claim the spousal support/APL as alimony for IRS
tax purposes. That cost me about $2,500 more in
taxes in 2015, and my husband reaped the benefit of
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not having to claim it as income on his 2016
return.
I have already spent an exorbitant
amount of money litigating this spousal support/APL
issue. I have a long road of litigation in front
of me, and I've been told by numerous attorneys to
give up the legal fight since, inevitably, the
court will use the standard guidelines and I will
not win my argument.
I want to continue to fight the
injustice of the system through the Superior Court
and higher levels, if necessary, but I also have a
two-year-old to support nearly entirely on my own.
That $100 a month from my husband doesn't go very
far. When I said "I do", I never imagined someone
being able to arbitrarily extort 40 percent of the
disparity of our incomes for two years and rob me
of money to pay for our child's needs.
MAJORITY CHAIRWOMAN DELOZIER: Thank
you. Next.
MR. LAMOREAUX: Good morning, and thank
you for allowing me this opportunity to speak
before the committee.
First, I'd like to say, I appreciate
this opportunity to share my story, or at least a
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small piece of it, with the hope that the current
laws can change, possibly preventing the next
person from going through what I and others before
me have endured.
When divorce became inevitable, I was of
the opinion that it would hurt me if I was the one
who filed for divorce. After all, I wasn't the one
who wanted the divorce. It was my wife who wanted
the divorce, so I figured she should file.
As time went on, a colleague of mine
learned of my situation and advised me to file as
soon as possible. He explained to me that my wife,
as advised, likely, by her attorney, would stall
the entire procedure for the full 24 months for
purposes to receive the maximum amount of APL. I
basically ended up filing solely to get the
24-month clock ticking.
At the time, my wife told me that she
understood how hard I worked to obtain my business
and that I was a great husband and father, but it
was time for her to move on. At that time, I
presented her with a settlement proposal, which she
didn't know what to do with. Eventually, she took
it to an attorney, and that's when everything
changed. Ironically, the attorney she selected
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represented the ex-wife of a colleague of mine.
The next time I spoke to my wife about
the divorce, her attitude had changed. Her
statement to me was that her attorney took my
colleague to the cleaners, and they would do the
same to me. This began an ordeal that I never
expected.
Regarding APL, I'd like to provide a
little background first in regard to my family's
financial situation:
As a married couple, we were raising an
elite athlete. Our oldest son is a snowboarder and
has been training at an elite level since age 8.
At age 12, he resided in Vermont part time through
the winters, and age 14 he moved there on a more
permanent basis for the winter and currently lives
in Salt Lake City, Utah, continuing to pursue his
dream.
Our decision to allow our son to pursue
this passion put a financial burden on our family.
We still lived comfortably but had little extra.
All during this time, my wife was fully supportive
of the extra money we were spending on our son's
schooling and training costs. This money was
highly supplemented by my end-of-year bonus. I
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distinctly remember a time when I was driving to
Vermont back and forth, sometimes more than once a
week, I suggested to my wife that this needed to
stop. I vividly remember her response, which was,
you need to keep going; you will crush our son's
dream. We've come this far. You need to keep
going.
My wife was a stay-at-home mom by
choice. Prior to having children, she maintained a
few jobs but never really had a career. She always
wanted to be a stay-at-home mom. When she decided
our marriage wasn't working any longer, she
immediately started dating another gentleman that
made substantially more money than our current
household income. She testified in court that she
was living with this gentleman without making any
financial contributions to the new household.
Once my wife applied for APL, the
standard formula was applied. My income was based
on my total annual income, which included my
end-of- year bonus. This bonus typically could --
it was a relatively large percentage of my annual
income, so I did not have access to those funds
until the end of the year.
My wife opened a consignment shop a few
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years ago, and she only has that open 24 hours a
week. She provided to the courts that her income
was only $5,000 per year. When questioned why she
does not work 40 hours per week, she responded that
she didn't need to.
This is where things became very
difficult, as the formula for APL is based on each
individual's salaries. In my case, I maintained
the same salary as when we were married. I also
had full financial responsibility for our two
children, who continued to live with me. I
maintained the mortgage payment, the utility bills,
taxes, summer camp costs, counseling, attorney
fees, et cetera.
In addition to this, I began having
approximately $1,500 per pay period, or over $3,000
per month, garnished from my paycheck for my wife's
APL. I was also paying approximately 1,500 to
$2,000 per month for my attorney. I was paying
over $600 a month for my wife's health care. I was
paying $450 a month for the vehicle my wife
continued to drive while living with her boyfriend
and having no expenses. I made minimum
contributions to my 401K.
As you can imagine, my quality of life
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declined due to these expenses. I live in a modest
house with a 1300-dollar-a-month mortgage. I drive
a 25,000-dollar car. We take minimal vacations. I
ended up borrowing money from my family members to
pay my bills. All of this was going on while my
wife would call our youngest son to let him know
that she would be in Aruba, Cancun, Florida, et
cetera. She had no interest in finding additional
work beyond her 24 hours a week. In addition to my
everyday expenses, I now had to find a way to
continue with my oldest son's extracurricular
activities, as my wife no longer took interest.
One of the major frustrations of the
system is that I had to continue to pay this
monthly payment with no chance of my wife agreeing
to a settlement. I believe the current system
allows the dependent spouse, being blind to her
true financial situation, to continue to collect
because of the basic formula and the waiting
period. There is absolutely no incentive from
either the dependent spouse or the dependent
spouse's attorney to settle.
In my case, our marriage was over some
24 months ago with no chance of reconciliation, but
my wife refused to respond to any of the five
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settlement offers I proposed to her. Her standard
answer was, it's not time to settle. Obviously,
this means, why would I want to settle and stop
getting your payment? Additionally, why would her
attorney encourage any such settlement as,
obviously, her services would no longer be needed.
This was not only very frustrating
financially but also emotionally and, in my
opinion, detrimental to both my children, who had
to live with this over two years and remain living
this way today in a very stressful condition. They
watch me work 55 hours a week and care for them
full time while their mother lives somewhat
extravagantly compared to what was their normal.
In my opinion, the tactics used by my
wife and her attorney were an attempt to break me
financially and emotionally. A colleague of mine
who went through the same similar situation
opposing the same attorney, has the same opinion.
And, in his case, he gave in on a settlement just
to terminate the monthly APL because he was on the
verge of bankruptcy.
From my understanding, this is truly not
the intent of APL. Actually, it's my understanding
it's just the opposite. APL is to provide a level
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playing field; to allow the dependent spouse the
opportunity to reasonable attorney fees and a
reasonable standard of living. If I recall
correctly, my wife testified that her attorney fees
were on the average of $3,500 a month. That's
$84,000 over a two-year period. I don't consider
that reasonable.
I encourage all of you to revisit the
methodology in determining APL. Rather than a
standard formula based on respective incomes, I
would encourage that a real assessment of economic
need being visited.
In my case, having been the breadwinner
and, in my opinion, providing for a stable home for
my family, I feel as if I was extremely taken
advantage of by the current laws. I know that I
was paying my wife a substantial amount of money
each month while she refused to increase her
employment and her income to something reasonable;
all the while, she continued to and still lives
somewhat lavishly; all the while, I am taking loans
to pay my bills. It's ironic that, as I sit here
today, she has once again returned from another
Florida vacation.
I am a strong believer that, if the APL
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was appropriately determined and a set time frame
for which I was obligated to provide payments was
more appropriate, I would no longer be waiting for
the divorce to be final. I truly understand and
respect the notion that a system should be in place
to encourage divorce to not always be handled by
the courts. I don't believe the best decision for
your family is always made by a judge, but
sometimes made by the participants in the marriage.
The current system highly encourages
the dependent spouse to delay the divorce process
for as long as possible and truly discourages a
collaborative approach by both parties.
In addition, I also feel, as do others
that I have spoken with, the current APL system
aids in the further breakdown of what may be left
of a relationship, as it creates an environment for
resent and disrespect between the two parties.
This again aids in the detrimental effect of others
involved, including the children.
Also, I find it appalling that an
attorney would not discourage this behavior,
especially where there are children involved. But,
at $3,500 a month, why would you?
As predicted by my colleague, I received
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a settlement proposal from my wife approximately
one week ago, just before my two-year date. My
two-year date was this past Sunday. I believe the
entitlement attitude is in full swing, as with a
total combined net worth -- I'm sorry.
As with the entitlement attitude in full
swing, our total combined net worth is
approximately $725,000, including all of our
retirement, of which her 50 percent share would be
$362,000. Her settlement offer was for almost
1.1 million. This entitlement attitude has been
encouraged for over two years due to an
inappropriate APL ruling.
I want to add one thing real quickly. I
also did have a de novo hearing based on
cohabitation and extracurricular activities. Those
hearings were thrown out, and I am currently
appealing those. Also, she has been in
cohabitation for close to two years.
In closing, I would quickly identify
some things that burden the party who chooses to be
responsible during this process:
Number 1 was saving my credit. I
could've walked away from the mortgage and all of
the marital expenses, but I chose not to.
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When I felt the APL ruling was unjust, I
made an appeal. This is still unsettled after
19 months.
This system may work for the
irresponsible breadwinner who decided to abandon
the marriage, but it's just the opposite and very
detrimental if the breadwinner is the responsible
party.
I suggest any previously-agreed-upon
marital continuing joint expenses come off the top.
These are real expenses, and someone must be
responsible for them.
With an APL award that is very
one-sided, there's no incentive for the receiving
party to settle. This also opens the door for any
attorney with questionable ethics to take advantage
of the system for his or her financial gain.
It is my belief that, between my wife
and I, we have spent over 20 percent of our
combined net worth on legal fees. I had no choice,
and we have not yet started the actual divorce.
This is insane.
I strongly encourage you to reevaluate
how the APL is calculated and please help fix the
system. If I can provide any further input on this
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matter, or any other items as they relate to the
current divorce laws, please do not hesitate to
contact me.
And I would like to sincerely thank
Representative Mike Peifer for opening a door to
get me here today and also Miss Anna Malcein for
assisting with me being here today.
Thank you.
MAJORITY CHAIRWOMAN DELOZIER: Thank you
both for your testimony. I don't believe we have
-- Anybody? -- we have any questions.
I wanted to announce, also, that we have
been joined by Representatives McClinton, Costa,
Knowles, Jozwiak and Saccone, just so we know who's
here and listening to -- Oh, and Becky Corbin. A
lot of people have voting meetings today, so
they'll be in and out and everything else, so, just
if you see some shifting, that's why.
But, thank you for both for your
testimony and sharing your stories and how it
worked. I appreciate the input. I know we've had
a number of conversations; and your research and
your willingness to kind of, hey, let's take a look
at this, again, to be reasonable. This is not
meant to be one-sided or the other. We need a fair
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and equitable -- As you mentioned, the APL, that is
the goal of it. So, if we can continue to try and
get to that point, it is a good thing. So, thank
you both for being here and for your testimonies.
And with that, we will move on to the
next panel. Thank you.
MS. BOWMAN: Thank you.
MR. LAMOREAUX: Thank you.
MAJORITY CHAIRWOMAN DELOZIER: The
second panel is -- we have two folks. We have Mark
Ashton and we have Lori -- And I apologize. I'm
gonna mess up your last name. I apologize.
Shemtob?
MS. SHEMTOB: Shemtob, yeah.
MAJORITY CHAIRWOMAN DELOZIER: Okay.
There you go. Pretty good. Thank you.
And with that, either one of you can
start. The floor is yours.
MR. ASHTON: Why don't we go with Lori.
MS. SHEMTOB: Thank you.
Chairman Marsico, Chairman Petrarca,
Chairwoman Delozier and Chairman Briggs and
committee members:
Thank you very much for allowing me to
speak today. I really appreciate it. My name is
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Lori Shemtob. I am the current president of the
American Academy of Matrimonial Lawyers'
Pennsylvania Chapter.
I'd first like to explain what the
American Academy of Matrimonial Lawyers is. It's a
national organization consisting of about 1,650
fellows throughout the country. Pennsylvania has
61 fellows. I am honored to serve as the president
this year of the Pennsylvania Chapter. The academy
is the value -- The core value of the academy is
promoting professionalism and excellence in the
area of family law. I come before you today on
behalf of the Pennsylvania Chapter, and I speak for
our chapter in -- to talk about concerns that we
have about proposed Bill 1250, Session 2017.
I'd like to first start off by saying
that, if this proposed bill is implemented, it will
be a windfall to lawyers. I mean, I heard people
talking about how much lawyers are making because
of these guidelines and the APL.
Here's the reality: If a bill like this
is passed, we are going to be making a whole lot
more money because every case is going to go in
front of a judge or a master or a hearing officer.
There's not going to be any certainty. We're gonna
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be billing our clients more money. We're gonna be
taking more time, and it's gonna cost them a ton of
money.
And I have to say that, when we have the
Pennsylvania Chapter of the America Academy of
Matrimonial Lawyers and the Pennsylvania Bar
Association Family Law Section, all who are opposed
to implementing a needs-based analysis for every
case in alimony pendente lite and spousal support,
it's very telling. We're not in favor of getting
rid of the guidelines and, yet, we would make a ton
more money. So, it's really telling to me.
I'd like to explain, if I could, what
APL and spousal support is. APL stands for alimony
pendente lite. Alimony pendente lite is alimony
pending the litigation. It means somebody has
filed the divorce complaint and, before the divorce
is done, they may be entitled to temporary alimony.
It's a short-term fix. It's not for long term.
It's not a long-term alimony. It's a short-term
fix.
Spousal support, on the other hand, is
the -- the formula is the same, but it -- You get
spousal support if a divorce complaint hasn't yet
been filed. So, the formula works the same, but
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once -- the APL, the alimony pendente lite, is when
the divorce complaint has been filed, and spousal
support is when the divorce complaint has not been
filed yet.
Let me talk a little bit about the
procedure. Somebody would come into my office, and
I would have the ability to give them some
certainty in terms of what they would be expected
to pay for APL or spousal support, or what they
could expect to receive. This gives them
certainty. There's a formula, and I can look at
their case from the very beginning, and I can say,
okay, you make X and your spouse makes Y, your
support is going to be around Z. That gives them
some certainty.
The lawyer on the other side is doing
the same thing and figuring out the same analysis
that I'm doing, and then we can talk. And,
oftentimes, we settle the case, and we settle it
within this guideline amount.
I understand, and I heard what these
other people said, and I feel for them, but, on a
whole, we have to look at what works on a whole
here.
The formula is very simple. The formula
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is one spouse's net income minus the other's net
income, times either 30 or 40 percent, depending if
there's child support. So let me give you an
example:
My client comes in and says to me, I
make $10,000 a month take-home. That's, after
taxes, I make $10,000 a month. And he or she says,
and my spouse, after taxes, makes $5,000 a month
take-home. I can very easily calculate 10,000
minus 5,000, times 40 percent. That's the APL.
That's the amount that person is going to get if
there's no children. If there is children, then it
would be the 10,000 the one spouse makes minus
5,000, minus the amount of child support they're
paying, times 30 percent.
It is clear and concise, and I can
explain it to my client. They can make decisions
about how they budget for the next couple of months
or the next year or so. They can make decisions
about whether or not they want to separate. They
can make decisions about, should one party move out
of the house or not move out of the house. So, a
lot of decisions can be made with that certainty.
Without that certainty where there's a
needs-based analysis looking at basic needs, just
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about every case is gonna go to court. We're going
to be in court, and it's gonna drag out the case.
We'll end up in front of a conference officer first
to listen to, what are the basic needs of the
parties.
Then we -- If it's not resolved there,
because people are gonna fight over what's a basic
need: Is it a two-bedroom apartment, or is it a
four-bedroom home with three bathrooms? Is that
the basic need? Is it cable television -- regular
cable television, or is it cable television with
HBO and SHOWTIME and all these extra bells and
whistles?
So, this is what we're gonna be
litigating. Our clients are going to be collecting
every single receipt for everything they spend over
the course of months to come up with their needs,
and is it basic or is it reasonable? It's going to
open up an entire case of looking at every single
expense and what's basic and what isn't. In the
long run, it will delay the process.
Right now the legislature, about a year
-- I guess in October, went into effect in
December, changed the divorce waiting period from
two years to one year. That was a huge change. So
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now -- Unfortunately, the people that spoke earlier
were both grandfathered into the two-year
separation. Right now it's one year, so if people
are just separated one year, they can move the case
forward into the court system to divide their
assets. So, this APL, this temporary alimony, is
not gonna last more than a year; maybe a year and a
half. It's just not gonna last as long as they
were talking about.
If we have to have a needs-based
analysis and go through everyone's basic needs on
every case, which is what's gonna happen, it's
gonna delay just the support aspect of the case for
six months to nine months to a year, because we're
first gonna have to have the conference officer.
Then someone's going to appeal it and we'll go in
front of a master. Then somebody will appeal that
and we'll go in front of a judge. But before we
get in front of the judge, we might have to have a
conference in front of the judge. Then the judge
is gonna schedule it for a hearing. This could
take six months, nine months, a year until we get
an answer. Everybody is spending money, and it's
dragging the case out where the money could be
better-spent used to work on the equitable
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distribution, which is the division of assets, or
work on the custody.
Very important that I want to talk about
is what's called deviations. I heard what these
people said, and there are deviations that can be
argued, and I have argued these many times. I was
in court yesterday making this exact argument,
where my client made significantly more money. She
had primary custody of the child. She was gonna be
forced to pay a significant amount of APL to the
husband. My argument was going to be, deviate.
We've got this formula, and the formula
is a presumption. Put this in, and that's a
presumption. Usually, the presumption works. But
if it doesn't, let's deviate. Let's adjust how
much we're giving this person. And that's the
argument, and it's up to the lawyer to go in and
argue these adjustments.
Adjustments can be made because, like
one of the parties said, he had more than enough
money to support himself. His income was enough to
support himself and he had extra. Therefore, maybe
he shouldn't have been entitled to any APL. Maybe
he shouldn't have -- it should have been deviated
downward. That could be argued to a court, and
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they have to listen to it. They have to listen to
it, and they have to put on the record or in their
findings whether or not they deviated and why did
they deviate or why did they not deviate.
Pennsylvania was the first state,
28 years ago, to implement these guidelines, and
they are working. Other states look up to us that
we have this, and I would hate to see us go
backwards. It's very interesting. If we don't
have some sort of guidelines and this is left to
the discretion of individual judges and masters, it
could be all over the place: From county to
county, within our state and also within one court
house.
There was a luncheon of judges in
Colorado--I recently read this article--where they
were given a list of facts. And they looked at the
facts and they said, okay, how much alimony
pendente lite would you give this person, and it
ranged from zero a month to $5,000 a month for
life. So there's way too much discretion, and we
don't think that it would be helpful to have every
single case go in front of a court and make this
basic-needs decision, because everybody's vision of
what a basic need is is different.
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We are really afraid that this proposed
bill is contrary to what APL stands for. We're
worried about the financially-dependent spouse.
We're worried that the spouse with far superior
assets and income will be able to control the
entire history of what happens in the case. We're
worried that the financially-dependent spouse will
end up taking settlements that aren't really fair
to he or she because they just need to get it over
with.
We feel that, at this point in time, a
change in the current law will benefit a small
group of people, but it won't benefit the state of
Pennsylvania and the people as a whole, and we
would urge you to really consider that.
In conclusion, I go to the old adage; if
it ain't broke, don't fix it. Yeah, there's some
problems. I mean, everything -- There's problems
with everything. But, it's working and it gives
certainty, and it lets people plan their lives, and
it solves more problems than it creates. And we
would ask that you continue to keep the guidelines
in place as they are.
And I appreciate the opportunity to
speak to all of you. I'll turn it over to my
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colleague, Mark Ashton, and then we are happy to
answer any questions that you may have. Thank you.
MR. ASHTON: Thank you, Lori.
I'm Mark Ashton. Thank you for the
opportunity to appear here today. Again, I'd be
very happy to -- or both of us would be very happy
to answer questions about how the system works or
how it doesn't work.
Obviously, you've heard from both
Ms. Bowman and Mr. Lamoreaux with their individual
sets of problems, and I listened very carefully to
their testimony. Because I've been doing this for
37 years, and both Lori and I represent both, what
we'll call the monied spouse and the dependent
spouse, so we know both sides of that argument, and
you heard a little bit of both of that today.
What you also heard, which I think makes
it much more difficult to manage these problems
today, is the complexity of people's financial
issues. You heard about trips to the Caribbean.
You heard about snow -- by offering snowboarding
opportunities for your son. You heard Lori make
reference to the fact that some people have cable
bills of two to $300 a month. As a person that
doesn't have a cable bill, I'm somewhat bewildered
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by that, but I recognize that I have to advocate on
behalf of clients anyway.
What we have had in this Commonwealth
since 1785, and we were in the vanguard then
because we picked up a piece of Scottish law, was
that a spouse was not entitled to more than a third
of that other spouse's income. Until the Equal
Rights Amendment was passed in Pennsylvania in the
1970s, only men were paying and only women could
receive. Obviously, now, as Lori described in her
case from yesterday, that situation has changed
markedly, and we have many women who are paying
support to their husbands.
One of the arguments I also heard, and I
believe it was from Ms. Bowman, had to do with the
issue of earning capacity, and this is -- This is a
common concern. There are many people -- And you
know as General Assembly members. There are many
people in Pennsylvania who are underemployed either
by circumstance or, in many situations, by choice.
Courts are supposed to evaluate the earning
capacities of individuals who appear before them.
Sometimes, though, because of the volume
of these cases and because of the many processes
that go through, people end up with what they
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consider an unjust result. But, put yourselves in
the position of being a trial judge and hearing
Mr. Lamoreaux talk about the support needs that he
had to support his son's desire to be a snow-
boarding professional. I can understand and
appreciate and want to support that. But now, if
you're left with the question of, what is it that
is a basic need, I don't think any of us could
argue that that's what it was.
We're here today talking about spousal
support, however, but it does, as Lori indicated,
integrate with the issue of child support. And in
my written materials, I've provided you with what
the guideline formula is. Lori did give you an apt
description of it.
We have had guidelines since 1785. They
have been consistent. They have changed only when
we adopted child support guidelines in 1985, and we
did that at the behest of the federal government,
that basically told you as a General Assembly, you
will not receive IV-D subsidies from the
departments of health and human services unless you
have statewide guidelines and pass a law, which
was, in the end, Act -- I think it was Act 95 of
1985. So you have that. And ever since then, at
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that time, under Section 4322, the General Assembly
told the Supreme Court, you are to develop uniform
guidelines for both child support and spousal
support.
With child support guidelines, what's
done in Pennsylvania is that the Supreme Court
employs someone every four years, based on the
statute, to go out and try to calculate what it
costs to raise a child in Pennsylvania. We have
just finished that process, and new guidelines went
into effect on May 1st. They will remain in effect
for fours years.
What happens next is, is that, then we
have the question of, well, what is a spouse worth?
And for that, we don't have what the cost of a
spouse is. We could probably make some fun with
that, but, in any event, whether it's a man or a
woman, it doesn't really much matter.
And what the Supreme Court did was, it
preserved what was then a 200-year-old --
210-year-old tradition -- I'm sorry -- then a
200-year old tradition of it being one-third. It
has been adjusted to 40 percent because the law
changed in 1917 with the 16th Amendment, we now
have federal income tax. And ever since the
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federal income tax law was passed, spousal support
and alimony pendente lite have been deductible.
So, effectively, the spouse really,
probably isn't getting more than a third -- the
same standard since 1785, isn't getting more than a
third, but she's getting 40 percent because she's
gonna have to pay tax, or he's gonna have to pay
tax, on that award.
So, I think it's a fair system. It is a
system -- As Lori pointed out, it is a system where
this proposed bill brings a lot of money --
potential money to us. I think, on the whole, your
constituents will be unhappy with that result
because it means that I can get a different result
in courtroom A of the Lehigh County Courthouse than
I may get in courtroom B, and there may be a
different result in courtroom C.
This is a standardized system that
expressly contains grounds for deviation. It is
what the General Assembly insisted on when it
passed that statute, again, Section 4322, in 1985.
So, deviation is allowed. I think courts would be
better off deviating more often. But, under Ball
versus Minnick, a decision in the Supreme Court, I
think 1996 (sic), it became -- Basically, what the
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courts did, and it's understandable, is said, if
you're going to deviate, the court is going to have
to explain this and create a record of the reason
for the deviation.
So, there is a basis to deviate. There
is a set of guidelines. Those guidelines allow us
to tell clients quickly, inexpensively, and, in
fact, it can often be done online, which is to say,
using a computer, what a spousal support range is.
I think that's a good thing.
And I think, unfortunately, because of
the complexities today of people's financial
commitments, it is more and more difficult to
determine what is a reasonable need. We had
reasonable needs for expensive cases until 1996.
At that point, I argued the Mascaro upstairs. And
in that case, one of the things that Mr. Mascaro
had in his budget was, he bought a bell tower for a
local university. That was his charitable
contribution for the year. Put yourself in a robe
and decide for yourself: As a person who has an
income of several million dollars a year, is it
reasonable to buy a bell tower for a local college?
Is it reasonable?
I've had cases where people have made up
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to $5 million a year or more, and in those cases,
are fresh flowers reasonable? Is a new car
reasonable, and is that car a
hundred-thousand-dollar car or a 10,000-dollar car?
I don't think judges should be making those
decisions. The litigants should, and a uniform
formula, with the grant for deviation, allows that
to be accomplished.
So, I hope that's been helpful. If I
can answer questions, or Lori can, we're happy to
do so.
MAJORITY CHAIRWOMAN DELOZIER: Thank
you. And we're running short on time here, but we
do have questions to ask.
I guess, you've stated a couple times
with the bill that -- doing away with the formula.
This bill doesn't do away with the formula. So,
the ability for us to keep the formula, in and of
itself, we have no issue with. And the bill does
not change that formula; does not take it away from
any divorce proceeding that is happening for APL.
The ability for us -- You mentioned in
your testimony that there is -- you want it in
black and white, but then you go on to say that the
court does have discretion. What this bill does is
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ask for additional things to be considered in that
discretion. So I guess I'm confused as to, you
know, you want it black and white. We have
discretion and that's okay, but now, adding to
those types of discretion is a problem. So I guess
I don't understand why --
And the other question I would say is
that you're talking about so many more court
hearings. We're adding this discretion to the
process that's already in existence. So, if the
master or the judge, whichever one it happens to be
in front of, is making a calculation for APL, we're
saying you need to consider these additional
factors in that consideration. We're not adding
court hearings.
Also, you mentioned that we're mandating
that it be held before -- We're not changing the
process.
MR. ASHTON: Well, actually --
MAJORITY CHAIRWOMAN DELOZIER: We're not
changing -- Let me just finish the question.
MR. ASHTON: Sure, by all means.
MAJORITY CHAIRWOMAN DELOZIER: We are
not changing what it is that a divorce settlement
would stipulate to need to do. It still has to be
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heard in the same process.
So, I guess my question would be, we're
not --
MR. ASHTON: We disagree. Right, right.
MAJORITY CHAIRWOMAN DELOZIER: Right.
We're not eliminating the formula.
MS. SHEMTOB: You're just suggesting
that there be other things to be considered?
MAJORITY CHAIRWOMAN DELOZIER:
Correct.
MS. SHEMTOB: And that would be fine,
but that's not exactly what this bill says. And we
don't have a problem with maybe adding some
deviation factors, and we would be happy to talk
about what other deviation factors should maybe be
added. But the way this bill reads --
MAJORITY CHAIRWOMAN DELOZIER: And where
is it that you have an issue; that you think it
eliminates --
MR. ASHTON: It's line 13 and --
Actually, line 14 of the bill. It says, to provide
for that spouse's basic needs.
MAJORITY CHAIRWOMAN DELOZIER: Correct.
MR. ASHTON: The law since, again, the
1780s has been that a person who is seeking support
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is entitled to live a reasonable and comfortable
life based upon their station in life.
MAJORITY CHAIRWOMAN DELOZIER: So it's
the basic needs versus reasonable needs is the
issue?
MR. ASHTON: And, frankly, that's what
got our attention immediately and why we were so
urgently --
MAJORITY CHAIRWOMAN DELOZIER: So it's
one word.
MR. ASHTON: -- asking to talk to you
about it, because we see your bill as changing the
standard, and we don't know what a basic need is in
contrast to either a formulaic need. And we have
worked for our entire careers on the basis of
reasonable needs. And reasonable needs, in
contrast as we see it, to basic needs, have to do
with things such as, if you always drove a Cadillac
or you always drove a Chevy --
MAJORITY CHAIRWOMAN DELOZIER: Right.
No, I recognize that. And I apologize. I know
somebody has other questions. I don't wanna --
So the issue, then, is simply, in that
line, is the difference between basic need versus
the court's acceptance of reasonable need.
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MR. ASHTON: Yes, but can I also point
out one other thing? You're only changing the
divorce code and alimony pendente lite, and this is
almost more complicated than worth describing.
You're not changing the law of spousal support.
That is a different remedy under a different
statute. And so, what you would have here is,
you'd have two different standards. If it's --
MAJORITY CHAIRWOMAN DELOZIER: Using
basic, you mean?
MR. ASHTON: What I'm saying is, this is
changing Section 3702 of the divorce code.
Pennsylvania also has within its
Domestic Relation Code, Title 23, a support law.
The support law relates to spousal support, which
can be paid whether there's a divorce action or
not. There are certain groups out there, religious
communities, that do not countenance divorce, so
they will proceed for spousal support, and that
spousal support is a different -- If you adopt this
statute, then as lawyers, we're left with the
question of: Well, if it's a spousal support
claim, is it a different standard?
So I'm saying to you, if you want to
amend this law, I would submit that you should be
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taking a look at amending the support statute
itself as well as this law.
MAJORITY CHAIRWOMAN DELOZIER: Okay. I
have a number of other questions. Like I said, I
know there's a number of other questions that I
have. I know Chairman Briggs has some.
REPRESENTATIVE BRIGGS: I mean, you
actually started talking a little bit about it. My
concern would be, the duty of marriage going into
support, at what point does APL kick in? Is it
when divorce proceedings begin?
MS. SHEMTOB: So the way APL works is,
if somebody files a divorce complaint, the spouse
who is looking for APL would request it in the
divorce complaint and then request a hearing before
a court, or first it goes to a hearing officer, for
APL.
They may never do it. There are many
times when nobody files for APL because what
happens is, the parties separate. Someone files
for divorce. They reach an agreement. You know
what, I'm gonna just keep paying the mortgage and
the expenses, and we're never gonna go to court on
APL. So, it doesn't always happen. A party
actually has to request that they get APL and then
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there's a hearing scheduled for that.
APL is deductible, and Ms. Bowman was
talking about that. APL is deductible, so if you
pay APL, you get to deduct that right off your
income. So if you make --
MAJORITY CHAIRWOMAN DELOZIER: Well, she
hasn't been allowed to. Why --
MS. SHEMTOB: She should be. She should
be. That's a mistake.
MR. ASHTON: Well, I think it's because
of their -- What they do is, they do offset those
awards. In other words, if one spouse is paying
spousal support and the other spouse is paying
child support, they offset those awards. And
that's an interesting -- What I'm gonna say is,
it's an enigma in the statute. I'm gonna agree
with Lori about the fact that it may be deductible.
MS. SHEMTOB: But I still think it is,
because I've had many of those cases where one is
offset against the other. I make it very clear on
the record in front of the court that the spousal
support is $2,000 a month and the child support is
$500 a month. The person is gonna offset it.
They're only going to pay $1,500 a month, but they
get credit for paying $2,000 a month for the IRS.
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I have put that on the record, and I
have had agreements where it says that. I just
finished an agreement where we did an offset, and
the woman made more money than the man. I
represented the man, and I was very clear in my
property settlement agreement that he is receiving
X amount of dollars, and we had agreed how much she
would be able to deduct. It was an agreement that
was reached.
And if that support is whatever you were
paying for APL, that should be very clear, and put
it on the record, that this is the amount of APL
that you get credit for and not just the offset
amount. And that can be worked out with the
lawyers.
REPRESENTATIVE BRIGGS: So, at that
hearing, is that where you would request deviations
to be considered?
MS. SHEMTOB: Yes. And we request
deviations all the time, and the law is there for
us. 1910.16-5 gives you the deviation factors, and
it's there to use. I don't think we need this bill
to do what you're saying and what you want to do.
We've already got the deviation factors.
MAJORITY CHAIRWOMAN DELOZIER: It's not
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working.
MS. SHEMTOB: It may not be working in
all places. I know -- I will tell you, I had one
where there was -- APL was denied altogether; zero
APL. Now, it never went up to the Superior Court.
We ended up settling the case. The APL was denied,
and it brought us all to the table and we settled
the case. So it never got to the Superior Court
for a ruling on that, but the judge ruled no APL.
There was no need.
REPRESENTATIVE BRIGGS: I would like the
conversation to be how to address the deviation
factor to enable that to work more fairly and, you
know, get away from the basic need change of the
statute. But that's kind of where my head is.
I mean, I don't want to go back to pre-
1980, go backwards and --
MS. SHEMTOB: Right.
REPRESENTATIVE BRIGGS: -- open up a
whole can of worms that a lot of people are gonna
get harmed, but I would like to try to address,
when these specific instances may come up, how to
better --
MR. ASHTON: I think it's a laudable
goal what you're suggesting, Representative Briggs,
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but I will say, I think we have 400 licensed judges
in Pennsylvania. What's reasonable to you and
what's reasonable to me, if we wore robes, can be
different, and I think that there is benefit to
uniformity.
Obviously, we are also speaking in favor
of deviation. Deviation, by the way, doesn't, in
its current form, include: You don't need that
amount of money. All right? You don't need it.
And we have cases -- Both Lori and I
have had cases where the awards are pretty
stunning; you know, 50 or a hundred thousand
dollars a month. But, obviously, that doesn't
drive policy and shouldn't. But it's a situation,
too, where --
Again, when I hear the complexity -- and
listening to your prior witnesses talk about this,
when I hear the complexity of people's financial
arrangements today, they have -- they come -- This
is not agrarian America anymore, where we are
looking for sustenance and some firewood. It's
just that people have very complex relationships,
and one person today referred to their need for
credit. And, again, that also is a very -- that's
a whole new dimension that the old law has never
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been intended to deal with.
MS. SHEMTOB: Can I just add something
about when you're looking at the deviation factors?
One of the deviation factors is a catch-
all phrase: Other relevant and appropriate
factors. So, you can look at all kinds of factors,
and you can make up factors that you think are
relevant and appropriate.
So, if you go into court and say, well,
you know, this per -- And deviation can be upward
deviation or downward deviation. And you go into
court and say, look, I have unusually high medical
expenses; the amount of support that's given to me
is not high enough; or I have an unusually high
mortgage, or I have -- or my spouse makes enough
money that not only does he or she have enough to
pay all of their needs, reasonable or not
reasonable, they have several thousand dollars a
month left over to pay for their attorney's fees,
so they don't have the need. And that falls into
the deviation. I just think we're covered.
MAJORITY CHAIRWOMAN DELOZIER: Okay.
Representative Klunk.
REPRESENTATIVE KLUNK: Thank you, Madam
Chair, and thank you for joining us today. My
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question goes to the deviation.
So we've talked a lot about deviation.
There's all of these factors that go into it.
Based on your experience--I know you've had decades
of legal experience between the two of you--how
often do you argue for a deviation? How often is
that deviation, either up or down, awarded, and do
you feel that judges are reluctant to issue a
deviation because they have to, as you explained,
make sure it's in the record and explain why the
deviation was issued? Are they afraid of setting a
precedent?
MS. SHEMTOB: There may be some that are
afraid. But, you know, when the custody statute
was redone several years ago, when they put the 16
factors, and they required the judges to put on the
record every factor, they do it, and no one's
complaining. They're doing it, and they learned
how to do it.
If we try to encourage the judges, when
lawyers argue deviation, to put it on the record,
it's not that hard to do. You go through the
deviation. A good lawyer is going to argue the
deviation and put on evidence and put on testimony
on deviation, and a good judge is gonna sit there
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and say, okay, Ms. Shemtob made these following
points and these are good and, I don't buy it or I
do buy it. Now you've got a record and you've got
something to go up to the Superior Court if the
case doesn't eventually settle.
MR. ASHTON: I rarely see deviation. I
sometimes -- And the difficulty is, I'm on both
sides of that issue. There are times when,
obviously, I want to argue and do argue for
deviation. But, on the other hand, I also think
that there is a benefit. There's a benefit to know
-- to be able to tell a client that there is
certainty.
And when Lori described medical
situations, you uniformly say, anyone that walks in
with a serious medical problem is going to -- you
know, that deviation is easy. It's the more --
It's the more quizzical ones; you know, the
situations where people are doing something where
they bought a house that is too expensive or
they're getting -- They have put themselves in sort
of a financial bind, and often that's the case,
especially when you have two-income couples. They
tend to -- Especially if they're unhappy at home,
they tend to spend a lot of money and sometimes run
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up a lot of credit. Those should be more
manageable.
I wish courts would do it a little more
often. But I don't know -- If I were in your
chairs, I don't know how you manage that in terms
of getting them to do it. The Superior Court case
in Ball versus Minnick sort of -- kind of closed
the door on this a little bit by saying, you've got
to have an explanation for the deviation.
But, you know, when deviation comes
about and I'm getting the deviation and she's
opposing it, I do want a judge to explain it.
MS. SHEMTOB: Right.
MR. ASHTON: So, that's what I mean.
Again, we represent all clients from all stripes.
MS. SHEMTOB: And I think that going
from two years to one year is going to make a huge,
huge difference. It's not gonna be APL for that
long of a period of time, and it's a short-term
fix.
MR. ASHTON: Yeah. The classic case was
-- And you heard one of the -- I think it was
Ms. Bowman talk about it, which is, he's filed for
APL, and he's sitting on the award because he
doesn't have to consent for two years, and I don't
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have grounds for a fault divorce. You guys
remedied that in October, but it's only as it
relates to separations that occurred after
December. So that problem is going to flush out of
the system.
Management of these cases is more
problematic, but that's not what we're here to talk
about today.
MAJORITY CHAIRWOMAN DELOZIER: Okay.
Thank you very much. Thank you, all.
MR. ASHTON: Thank you for the
opportunity.
MAJORITY CHAIRWOMAN DELOZIER: We
appreciate it.
And our final panel regarding
Representative Lawrence's bill will be Christina
Hazelwood and Ellen Kramer. Thank you both for
joining us and sharing your testimony with us.
Either of you can start.
MS. HAZELWOOD: Thank you.
Good morning. My name is Christina
Hazelwood, and I thank you for letting me be here
today. I didn't handwrite or write out my
testimony. I'm just going to share with you from
my heart today, so I have a tissue.
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So I'll give you a quick background of
what brought me here today and why I talked to my
Representative. I had been in a 13-year marriage,
and it was an abusive marriage, and I had started
to seek help through domestic violence on how to
escape safely.
As a mother -- I am a mother. At the
time, the boys were just shy of their second
birthday. They're twin boys. And one final attack
happened where my husband brutally attacked me,
taking his fist to my face, which resulted in a
traumatic brain injury. I am a professional and
have worked for 20 years in the finance industry;
and had left me with injuries of speech impediment,
severe neck injury, memory, vision issues, and I
still suffer today from severe migraines.
My husband was arrested. I called the
police immediately. It was finally time to get
safe, right? It took so long to make those
decisions. That's a story for another day.
But, he was arrested, and he posted
bail. He racked up several aggravated assault
charges, multiple simple assaults, endangerment.
And I quickly did secure a protection from abuse,
and I was given that emergency protection as well
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as an extended protection for myself, and the boys
are covered in that.
I was out of my professional job for
over four months. I was in and out of a doctor's
office for three or four times a week trying to
receive therapy. My parents stepped in and helped
take care of me and the boys. At the same time, I
was blessed just to have disability coverage and
full payment from my work, so I was able to cover
all the household expenses. There was not one bill
that was covered by my husband at the time.
He did obtain, quickly, a defense
lawyer, knowing that he was in a world of trouble.
And, at the same time, I got my lawyer and I was
able to file for immediate custody as well as filed
for divorce and support. So going through all the
different courts quickly, and I was very blessed to
have good lawyers that carried me through what I
needed to do next.
And knowing the trauma that I was under
and knowing the strain I was under, they never
shared with me the impact that alimony may be
coming. They did protect me from that. But so,
we're moving all through. As far as notifying me
at the time that this is worst-case scenario, they
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knew that that would be a lot for me to handle, so
they just hoped that that would not have happened.
But, at the time, I again was packing
up medical bills, paying out of pocket; nearly
$10,000. I was, again -- People that have come
before me and have been in these hearings, I was
blessed to have the Crime Victims out of Harrisburg
reimburse those costs for me so I was able to pay
my mortgage.
At the same time, my lawyer fees were
quickly racking up and ended up, like, nearly
$25,000 because -- I thought I was on the
homestretch, and child support was starting to come
in after several months, and I was starting to feel
better and see the light at the end of the tunnel,
and I was hit with alimony, which would have taken
away the offset of most of the child support.
I didn't know that that could happen
because, like I said, my lawyers protected me. I
stopped dead in my tracks and thought, this can't
happen. This is so unjust. How could I be here
suffering, paying my medical bills. I am not going
to turn around and pay for his own defense and my
own restitution. I said, how can that be? And
they said, it happens; it happens. And they showed
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me three cases where it happened, so be ready; it's
gonna happen. I said, it's not gonna happen.
So I had to pay to get another civil lawyer
so that I could have a case, this huge case of,
well, he did this; he did that. He pled guilty.
He is a criminal. And though we are married, I
should not have to support him. He chose to break
the marriage, and I should not have to support a
criminal. They listened, but they said, this is
still how the law is written, so you're gonna have
to fight it.
And to me, I -- taking the emotion out
of it, it just doesn't make any sense. You can't
ask a victim to pay, for a person that hurt them,
for their defense. You can't ask them to pay their
own restitution. So if I'm giving him money out of
my paycheck and he gets charged to pay back the
medical bills -- which he did. He has to pay back
the medical for Crime Victims, and he has to pay
restitution to Blue Cross/Blue Shield, my insurance
company. And yet, if I paid him money, I would,
like, turn around and pay -- it's basically paying
for my own injuries again and medical bills.
So, through all of that suffering and --
I just stopped dead in my tracks and I thought,
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that's absurd. That's not right. That is unjust;
which, I am not talking down to you. I know you
know what that means, but let me just read what it
means:
Unjust: Not based on behaving according
to what is morally right and fair.
And that is what happens, and that's
what happens to -- in marriages where a spouse
chooses to be a criminal and commit a crime, and I
should not support that or be asked to support
that. So, the law needs to protect me more and
protect the others coming behind me. And that's
why I'm here today.
And then just -- If that doesn't impact
you or see the logic or being logic, of the
inlogic (sic) of the law, take out the fact that
I'm married. If you were strangled -- if the
victim was strangled, would you ask them to pay for
their -- the person who committed the crime against
them, pay for their defense? Raped, would you ask
them to pay for their defense? Punched in the
face, would you ask them to pay their criminal --
the criminal that did this to them? You wouldn't.
Well, that happened to me, and you asked me to pay
him, and it's not right.
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I mean, I thank you. When I say you,
the court. I'm talking big picture, the law.
That's my story, and I thank you for
letting me share some of it with you. I know that
it is an emotional state, and it was a lot of
trauma. But I can say that I had a lot of people
come alongside of me, including lawyers as well as
family, friends, church. I was determined to get
better, and I feel like I --
I'm back to work full time. I bought a
house. My boys are doing well. And so, it ended
up to be a happy ending, and I'm safe and I'm free.
But that course of where that continued abuse could
have happened, should not happen; be allowed to
happen.
So, thank you for today and for hearing
me. And if you have any questions, I can take
those now.
MS. KRAMER: Thank you and good morning,
Representative Delozier, Representative Briggs and
members of the subcommittee. My name is Ellen
Kramer. I'm an attorney and Deputy Director of the
Pennsylvania Coalition Against Domestic Violence.
I particularly want to thank Miss
Hazelwood. I can only imagine the courage that it
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took to be here today to tell your story, and I
thank you for that because so it's important.
I'm happy to be here to give voice to
the tens of thousands of domestic violence victims
that we serve across the Commonwealth each year.
The two bills that we're talking about today are
really important measures that could give relief to
some of these victims who are separating and
divorcing from their abusive spouses.
The Pennsylvania Coalition Against
Domestic Violence is a nonprofit organization. We
serve victims all across the Commonwealth through
our 60 community-based domestic violence programs.
We offer a wide range of services through those
programs and last year alone served over 88,000
victims of domestic violence, including over 7,300
children.
Domestic violence is fundamentally about
an abuser's self-proclaimed entitlement to exercise
their power and control over another, typically
their current or former spouse or intimate partner.
While most of us here today are more
familiar with the physical violence that is
associated with domestic violence, economic abuse
is also a frequent, yet often overlooked, aspect of
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what we're talking about. Research suggests that
over 99 percent of domestic violence victims are
also victims of financial abuse. In most cases,
that manifests by the victim being unable to
complete their education; being able to maintain a
job because they're being barred from going to work
every day or being constantly interrupted. They
may not have access to family bank accounts and
their own paycheck; and, generally, just being
blocked from being able to be financially
independent.
Survivors often end up leaving abusive
relationships with few financial resources, even if
they are employed at living-wage jobs. They may be
left to contend with poor credit ratings that their
abusive spouse racked up, and they may be left
struggling to rebuild careers or finish educations
that were left in the balance. Eventually, leaving
their abusive relationship can be a traumatic,
challenging and, often, very difficult situation
for the abuse victim as well as their children.
As we work to move survivors toward
long-term security, it's critical that we support
their move to financial stability. Our goal is to
put the best tools in their hands to enable them to
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escape abusive relationships and make a new start,
free of violence. Court-ordered spousal support
and alimony pendente lite often provide those
life-saving assets to victims who are leaving, but
not always. It can work in the reverse.
Alimony pendente lite and spousal
support play out in domestic violence cases in two
ways. Most often, of course, the abused spouse has
few resources and is the lower-wage earner. But it
should make perfect sense that, once a dependent
survivor of domestic violence makes the courageous
decision to leave their abusive relationship, their
first stop may be in a Domestic Relations office or
in family court. They come to seek means to
survive as they separate from their abuser and
proceed forward.
House Bill 1250 is a generally
common-sense approach that we would support. While
it's not intended to specifically address the
plight of a victim's limited financial resources,
giving the courts greater discretion and
flexibility can be ultimately helpful to a victim
in that situation.
Further, and this is something that we
haven't yet discussed today, the bill's provision
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that would allow a court to award exclusive
possession of a marital residence to a dependent
and abused spouse makes a lot of sense. For those
children, the impact of leaving without adequate
resources has more devastating and long-term
effects. So allowing them to stay in the family
home with their protective parent is, ultimately,
extremely helpful and parallels the provisions in
the PFA Act that will also let the court award that
exclusive possession of the house.
But House Bill 983 will undoubtedly have
a positive impact on many survivors. Applying the
current rigid APL guidelines has meant that, even
though someone who was physically abused and
degraded by their spouse yet -- must yet suffer
another indignity if they're ordered to pay APL to
that spouse, as we've heard in the case just now.
As an attorney at PCADV, we also dealt
with another case--this one out of York County--
where a client, who was a victim of documented
domestic violence, was ordered to pay her abuser
APL. On appeal, the court was reluctant to vacate
the order, even after hearing testimony of daily
physical abuse, including being thrown to the
ground and having her stomach stomped upon while
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she was pregnant. A victim with this kind of
evidence, including police reports, medical records
and a final PFA, should not have to pay an attorney
to appeal a Domestic Relations order and proceed to
a de novo hearing before the court.
In this particular York County case, the
victim did press charges, and the abusive spouse
was convicted of an assault. And this is precisely
the kind of scenario that House Bill 983 is
designed to address. An abuser should not be able
to collect spousal support or APL from their victim
regardless of their disparity and incomes.
We do recommend, however, to the extent
that the bill references personal injury crimes
that the term be defined. Accordingly, we would
suggest that the term be consistent with the
definition of personal injury crime found in the
Commonwealth's Crime Victims' Act, Title 18,
Section 11.103.
Further, we would argue that this bill
does not go far enough. Limiting relief from an
APL order to only those cases where there is a
conviction for a personal injury crime poses
barriers to the relief that the bill intends.
First, for those cases where charges
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are even filed, the time between when the charges
are filed to the time of prosecution and then
conviction can be up to six months or longer. If
you can imagine a victim leaving their abuser
following an incident of physical assault, it is
possible that the abuser could immediately file for
spousal support or even APL if a divorce has been
filed. As the case is making its way through the
criminal justice system, we are faced with a victim
who has now been ordered to pay APL, waiting until
such time as a conviction is actually reached.
Second, limiting the relief to only
those cases to where there is a conviction places
the victim in an untenable situation. So,
basically, not all victims of domestic violence
wish to seek justice through the courts. They
don't want their abuser, who is often the father of
their children, to be convicted. They don't want
them to have a criminal record. They want the
abuse to stop. They want to separate from that
abuse, and they certainly don't want to have to pay
them alimony or support. This is particularly true
in communities of color where there's a rate of
conviction and incarceration that's
disproportionately high. At minimum, we believe
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that the entry of a final protection from abuse
order should be adequate to give a victim of
domestic violence the opportunity to oppose and not
have to pay alimony pendente lite or spousal
support.
Domestic violence is real, and it's
pervasive in this Commonwealth. We hear time and
time again that women make up domestic violence so
as to get a proverbial leg up in family court.
While we could continue to debate these offensive
and overreaching assertions, I would defy anyone to
look into the eyes of the bruised and bloodied
faces of these victims and their children who have
witnessed this and say that domestic violence isn't
real and that we don't have an absolute obligation
to do common-sense things in our legislation to
make sure that they aren't further victimized.
We would ask that we trust our judges to
do the right thing; give them all the tools that
they need to hear the evidence and make
well-reasoned decisions. Victims of abuse need
resources to leave abusive relationships and to
find safety and security for themselves and their
children. Abusers should not have the ability to
take hard-earned resources out of the hands of
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their abused victims just because they earn less,
or even choose to earn less, than the person that
they brutalized.
We ask that you support these two bills
and further amend House Bill 983 to include a
definition of personal injury crime consistent with
the definition found in the Crime Victims' Act; and
also consider expanding the exceptions to APL and
spousal support to include the entry of a final
protection order.
Thank you.
MAJORITY CHAIRWOMAN DELOZIER: Thank you
both. I want to say thank you, Miss Hazelwood, for
being here and sharing your story; very emotional
from your side, and it's great to hear that you're
having a happy ending at this point and you're safe
and your two boys are as well. But thank you for
sharing that. I know that that was not easy for
you. And also, your work with your Representative
to be able to bring this bill forward, I think,
like you said, will help many after you. So, thank
you for being that step forward and doing that, and
thank you for your testimony.
At this point, the Speaker has overruled
us in the sense that we won't have any questions,
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and he's asked for an appropriations meeting to be
held in this room before session.
So, with that, I will conclude the
hearing and thank everyone for being here, and
Chairman Briggs for working this through, and
hopefully we will have a resolution on both of
these bills. So, thank you very much.
(At 11:00 a.m., the hearing concluded).
* * * *
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C E R T I F I C A T E
I, Karen J. Meister, Reporter, Notary
Public, duly commissioned and qualified in and for
the County of York, Commonwealth of Pennsylvania,
hereby certify that the foregoing is a true and
accurate transcript, to the best of my ability, of
a public hearing taken from a videotape recording
and reduced to computer printout under my
supervision.
This certification does not apply to any
reproduction of the same by any means unless under
my direct control and/or supervision.
Karen J. Meister Reporter, Notary Public