Failure to Report Income Results in Retroactive Child Support Award (12+ years)

September 09, 2015 | Blog, Child Support, Court Decisions

Icon for author Brian Vertz Brian Vertz

When divorced or unmarried parents who owe child support fail to report their income to the court, the consequences can be severe.  That’s what happened in Cortes v. Cortes (non-precedential), No. 624 WDA 2014 (Pa.Super., September 3, 2015).  The mother and father in this case were divorced in Texas in 2000 after a twenty year marriage.  There was a child support order running in Allegheny County, where mother moved with the children upon separation.  The Texas divorce proceeding left the Pennsylvania child and spousal support order in tact, and Allegheny County retained its jurisdiction.  Immediately after the child support order was final, father obtained employment at the Milton Hershey School, where he worked for the next dozen years until 2012.  Father never reported his employment, or the raises he received periodically, to the Pennsylvania courts.

In 2012, Mother filed a petition for alimony in Pennsylvania (because she could not receive it in Texas, as that state does not recognize alimony). She also requested modification of child support, due to father’s failure to report his income.  The hearing officer determined child and spousal support arrears for the period from 1999 to 2000 (when the divorce was final), and child support thereafter, for a total of more than $54,000.  Mother filed exceptions because the master imputed an earning capacity to her for the retroactive period, and denied her claims for post-divorce alimony and counsel fees.  Her exceptions were denied.

On appeal, mother argued that she should not have been assigned an earning capacity because her religious beliefs as a Seventh Day Adventist required her to home-school the children, leaving no time for paid employment.  The trial court found mother’s testimony to be less than credible, as she has previously enrolled one of the children in a Texas public school.  The trial court’s decision was affirmed.

Next, mother argued that the trial court should have considered the tax benefit that father received when he claimed the children as dependents on his income tax returns.  Because the trial court did not address this issue in its opinion, the Superior Court remanded.

The Court  also held that mother’s claim for post-divorce alimony was properly denied, both because she did not prove actual need and because the Texas court did not explicitly reserve jurisdiction for the Pennsylvania court to hear that claim, as it did for child support and custody.

Finally, the Court reversed the trial court’s denial of legal fees.  Citing the relevant statutes (23 Pa.C.S. 3703 and 4351), the Superior Court held that mother’s ability to pay legal fees was inferior to father’s, and his deliberate concealment of his income was responsible for the costly litigation.  The Superior Court directed the trial court to determine the portion of mother’s legal fees that were related to the retroactive modification of child support, and enter an order compelling father to pay them.

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