Alimony & Spousal Support

Retroactive Modification Of Spousal Support

Failure To Notify Domestic Relations Of Substantial Increase In Income Allows For A Retroactive Modification Of Support As Long As The Innocent Spouse Promptly Files A Petition Upon Discovery

In the family law, spousal support case of Monloya vs. Wynder, PICS Case No.16-1239 (C.P. Lawrence July 12, 2016) the recipient of support payments appealed a 2015 hearing determination to seek retroactive modification. Failure of payer to report increases in income to the proper authorities led to payee’s petition for retroactive modification based on a misrepresentation.

Plaintiff Sharon Monloya enjoyed a court order of support effective 2011, but in 2014 she became aware that defendant Wilbur Wynder’s annual income had increased substantially. He had not notified Domestic Relations of the changes, as he was supposed to do by law. On June 19, 2015 she filed a petition for modification of support, seeking retroactive modification back to 2011, the year that the defendant first allegedly did not report a “substantive” increase in his earnings. She alleged that she only found out about it in 2014. She filed the petition in 2015 because of the emancipation of the oldest child, her temporary inability to work from June 19 to August 24 for medical reasons, and to address all changes in circumstances.

A support conference in August 2015 yielded two payments, one for the time period where plaintiff was recuperating, and an ongoing payment plan starting Aug. 24, 2015. At the hearing, defendant’s income was reported as $92,000 a “substantial and material increase” over the 2011 level.

Defendant argued that plaintiff should have known that he received regular pay increases by contract and thus his failure to report it was not a misrepresentation of his income. He argued that she should be entitled to retroactive modification only from the date she filed the petition in June 2015.

The court noted that, in Kerbs vs. Kerbs, 944 A.2d 768, misrepresentation of income allowed retroactive modifications “as long as the innocent party promptly filed a petition upon discovery of the misrepresentation.” Any delays in filing required individual evaluation. The Kerbs court also determined, notably, that the innocent person could not be required by the court to “actively investigate and pursue information […] to insure no misrepresentations have been made” in the level of income for support calculations. Defendant’s argument for non-retroactive modification would shift the burden from the affirmative duty of disclosing his current income to plaintiff, a shift determined to be “impermissible by law”

The income reported at the 2015 hearing was determined by the court to be a substantial change that defendant had failed to report. To determine arrearage, the court reconstructed the yearly income for the years 2011 through 2015, which showed fluctuating pay rate and hours. Noting that any individual increase in his hourly wage was not by itself “substantial”, but the overall accumulation over time amounted to a substantial change, the court had to determine at what point in time the accumulative effect would be considered substantial, taking into consideration that plaintiff did delay her petition, knowing generally that defendant received regular increases.

The court determined that January 2014 was the time in which defendant should have recognized and reported the increase, and assigned the effective date for increased support as Jan. 1, 2014. The court ordered the Domestic Relations calculate defendant’s actual income for each of the years 2014 and 2015 and recalculate the support obligations for those two years. The current orders of support for June to August and from Aug. 24, 2015 remained in full force and effect.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 39 PLW 997 (October 18, 2016)

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