On April 8, 2008, The Legal Intelligencer published my article regarding the Pennsylvania Superior Court case of Krebs v. Krebs (hereafter referred to as Krebs I). Krebs I pertained to retroactively modifying a child support order prior to the filing of a petition to modify a support order. In Krebs I , the Pennsylvania Superior Court remanded the case to the trial court and directed the trial court to consider the imposition of attorney fees.
On remand, the trial court imposed an attorney fee award of $5,000 against Mr. Krebs (the father), though Ms. Krebs (the mother) sought an amount of $15,408.83 in attorney fees. Mother appealed the amount of the trial court's award of attorney fees (hereafter referred to as Krebs II ).
As many will recall, the facts of Krebs I are as follows: The parties, who were married Aug. 6, 1988, separated Aug. 20, 1996, and subsequently divorced, are the parents of three minor children. After Mother initially filed a support action in July 1997, the court issued a support order April 8, 1998, obligating Father to pay Mother child support in the amount of $1,474.33 per month. The order was based on Father's monthly net income of $5,521.02 and Mother's monthly net income of $591.47. On Dec. 15, 2000, Father petitioned to reduce his child support obligation "due to a reduction in his income." On May 21, 2001, the trial court entered a stipulated order reducing Father's monthly child support obligation to $1,360. In 2006, after Father informed Mother that he had changed jobs and dropped the children's medical insurance coverage effective March 31, 2006, Mother filed a petition on April 24, 2006, to increase the May 21, 2001, child support order. Mother subsequently learned that Father's monthly net income had increased to $6,630 in 2001, $7,625 in 2002, $12,750 in 2003, $14,437 in 2004 and $11,562 in 2005. Mother's monthly net income remained at $2,274 from 2001 to 2005.
On Oct. 25, 2006, before a hearing officer, the parties entered into a stipulation that Father's support obligation, effective Jan. 1, 2006, would be $1,910 plus medical insurance coverage and 60 percent of the medical expenses exceeding $250 per year, per child, and that Father's monthly net income had increased to the specific monthly figures stated previously in this article. "The hearing officer recommended that Father pay retroactive monthly child support payments as follows: $1,807.00 from 1/1/01 - 12/31/01; $2,074.00 from 1/1/02 – 12/31/02; $2,955.00 from 1/1/03 – 12/31/03; $3,007.00 from 1/1/04 – 12/31/04; and $2,769.00 from 1/1/05 – 12/31/05." The court entered an interim order that included an arrearage payment of $1,400 per month on his total arrears of $80,203.49 in addition to his support obligation of $1,910 per month.
Father filed exceptions to the master's recommendation claiming that Mother was not entitled to retroactive modification of the support order prior to the date of her filing a petition to modify.
On Father's exceptions, "[t]he trial court found Father's concealment of substantial increases in income from 2001 to 2005 warranted retroactive modification of Father's support obligation prior to the date of Mother's petition but modified his support arrearages retroactive only to May 21, 2004."
Thereafter, Mother filed a motion for reconsideration with the trial court. On May 29, 2007, the trial court added an arrearages payment of $590 per month on top of Father's current support obligation of $1,910 per month, and confirmed its May 8, 2007, order in all other respects. Therefore, the trial court ordered that the support modification be applied retroactively to May 21, 2004, and that the arrearage payment would be $590 per month as opposed to the conference officer's recommendation that the modification be applied retroactively to Jan. 1, 2001, with an arrearage monthly payment of $1,400. After the trial court's decision, both parties filed appeals with the Superior Court.
The Superior Court affirmed the trial court's order imposing retroactive support arrearages but reversed the trial court's limitation of Father's support arrearages to May 21, 2004, and remanded the case with the direction that the trial court impose Father's child support obligation retroactive to Jan. 1, 2001, "when Father first failed to report his significantly increased income."
As stated above, the Superior Court also directed the trial court to address Mother's attorney fees argument and the amount of the monthly arrearage payment.
On appeal, Mother claimed that the trial court erred in awarding $5,000 in counsel fees when she requested an award of $15,408.83, which she incurred as a direct result of the "fraudulent concealment of increases to [Father's] income from the time period of 2001 through 2006 in order to avoid paying additional child support." Mother argued that the fees requested were reasonable "in light of the 2½ years spent on the litigation."
The standard of appellate review in child support matters regarding an award of attorney fees is an abuse of discretion, which occurs when there is a misapplication of the law or an unreasonable exercise of judgment. 23 Pa.C.S.A. §4351 authorizes attorney fees in support matters to the prevailing recipient of support.
In Krebs II , the Superior Court stated: "In construing §4351, our Supreme Court has indicated that unreasonable or obstreperous conduct on the part of the Obligor in a child support action is one basis which would warrant an award of attorney's fees to the Obligee." The Superior Court looked to the Pennsylvania Supreme Court's guidance in the Bowser case where it stated: "The Obligor in a child support case who unnecessarily imposes costs on the Obligee by improperly impeding the determination of the appropriate level of support should bear the costs for such improper behavior."
The Superior Court in Krebs II indicated that this case is a "prime example of unreasonable and obstreperous conduct on the part of a litigant." The Superior Court further stated: "This is not a case where [Father] merely defended the action in good faith; rather this is a case where [Father] fraudulently concealed increases to his income from the time period 2001 through 2006 in order to avoid paying additional child support." The Krebs II opinion reflects the detailed procedural history in providing an example of the time spent on the matter directly related to Father's behavior. "[T]he record through the present appeal reflects 2½ years of legal research; drafting of stipulations, briefs and concise statements; court appearances; and negotiations by counsel for [Mother] all as a direct result of [Father's] conduct and fraudulently concealing substantial increases to his income to avoid increased child support."
The Superior Court then states that after a thorough review the record, "and in particular, the affidavit of counsel delineating the total amount of time and costs expended in this matter, we conclude that the trial court abused its discretion in denying the full award of attorney's fees requested, $15,408.83."
Judge Richard B. Klein filed a concurring and dissenting opinion, where he agreed that the trial court abused its discretion in limiting the counsel fees to $5,000 but believed that the case should have been remanded to the trial court for the determination of the exact increased amount of attorney fees that should have been awarded along with an explanation as to why the trial court made such an award. Klein stated: "We are not a fact finding court and I believe that it is appropriate for the trial court to review the request for fees and provide detailed reasoning for its decision to either award the entire fee or something lesser."
This case may be a useful tool for the family law practitioner who finds him or herself in a situation where the opposing party has acted unreasonably or obstreperously in an attempt to frustrate or hinder an obligee's attempt to obtain proper support. In such an instance, this case may be used as a means to obtain an award for the entire amount of attorney fees expended by the obligee. However, it is important to remember that the attorney fees sought must be documented, presented to the court, reasonable in light of the circumstances and will be scrutinized by the court.
Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. He is co-chairman of the custody committee and a member of the executive committee of the family law section of the Philadelphia Bar Association, and a member of the executive committee and council of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the August 11, 2009, issue of The Legal Intelligencer. © 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.