Child Support Modification: Lay Your Cards on the Table?

This week I reviewed a recent decision by one of our Allegheny County judges, regarding modification of child support. Kozel v. Kozel, No. FD98-00761 (Allegheny Co., June 30, 2008).

After a decade of litigation following a four year marriage, the Supreme Court of Pennsylvania denied Wife’s petition for allowance of appeal seeking a review of the child support award and alimony pendente lite, as well as equitable distribution of marital property. Five months later, Mother filed a Petition for Modification of Child Support, alleging “the children’s monthly expenses have increased.” Father moved to dismiss the petition, arguing that it was not legally sufficient to state a claim warranting a hearing. The trial court agreed and dismissed the Petition for Modification. Mother filed a Petition for Reconsideration, alleging “the children’s monthly expenses have increased, including all expenses listed on Mother’s budget from the last support proceeding.” Mother attached the budget from the previous support proceeding without modification. The trial court denied reconsideration.

In her Opinion, Judge Kathryn Hens-Greco cited Rule 1910.19, which requires petitioners to “specifically aver the material and substantial change in circumstances upon which the petition is based.” Mother argued that the pleading rules do not require parties to present their evidence before trial and allow discovery to build a claim based upon information and belief.

In this author’s opinion, the decision reflects a reasonable concern on the part of the trial judge that she could not measure the materiality of the alleged change in circumstances. As she noted, many of the expenses on Mother’s budget were disallowed in the prior proceedings. If the increase in Mother’s expenses were solely or primarily due to the disallowed expenses, then perhaps no modification would be warranted and the petition might be viewed as an attempt to relitigate the appeals. Perhaps Mother’s request for modification would have been permitted had she alleged increases in the expenses that were not disallowed. On the other hand, how much should petitioners be required to plead? Will factfinders restrict petitioners to the specific grounds they plead?