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The recent Pennsylvania Superior Court case of Nash v. Herbster is a case of first impression with regard to the effect of the new Subsection (f) to Pennsylvania Rule of Civil Procedure 1910.19 regarding support modification. In this case, the Superior Court held that incarceration may be considered a change in circumstances warranting a modification of child support. This holding contradicts the Pennsylvania Supreme Court ruling in Yerkes v. Yerkes. The pertinent facts in Nash are as follows: Herbster and Nash are the parents of Christian. On April 15, 2004, a support order was entered against Herbster for the support of Christian. In 2004, Herbster filed a petition to modify on the basis that he was “not making the income [he] used [to].” That petition was dismissed without prejudice because Herbster verbally withdrew it. On July 1, 2005, Herbster filed another modification petition, and in an accompanying letter to the domestic relations section stated: “I understand that being in prison alone is not enough to have a modification hearing. But I also have a change in my earning potential, [and] a change in my mental state that keeps me from holding steady employment. So therefore I’m no longer standing alone with just incarceration. [If] I do not receive a hearing my next step will be to petition the higher court to quash your unjust rulings.” A support conference was scheduled for Aug. 1, 2005, but was “generally continued,” pending receipt of Herbster’s medical condition. Herbster was directed to provide the domestic relations section with proof of his medical condition within 60 days from that time. In a letter dated Sept. 27, 2005, the assistant director of the domestic relations section of Mifflin County informed Herbster that receipt of his medical records would not be necessary as “no action will be taken while you are incarcerated. Once you are released, we can once again schedule a conference on your petition for modification.” On Aug. 30, 2006, in a separate civil action, Herbster filed a number of documents. Herbster filed a petition for modification of support order seeking modification or termination of his existing support obligation. Herbster averred that there was a substantial change of circumstances in his earning capacity since he was incarcerated “with no income or assets, since Dec. 28, 2004, and that he was �unable to pay, has no known income or assets and there is no reasonable prospect that [he] will be able to pay in the foreseeable future.’” Herbster also cited the recently enacted Rule 1910.21(f) “and averred that �[d]ue to changes in this rule [his support] order is no longer able to be enforced under state law.’” Herbster also filed petition to proceed in forma pauperis (which the Mifflin County prothonotary granted) and a request for hearing de novo regarding the amount of support awarded and the calculation of his arrears. On Sept. 1, 2007, the trial court denied Herbster’s petition to modify, specifically stating, “Incarceration in a correction facility is not a change in circumstances that can be used to modify or terminate an existing support order.” The trial court cited the case of Yerkes v. Yerkes to support its position. Herbster filed the instant appeal regarding the trial court’s denial of his petition. On appeal, Herbster raised five issues. “Central to all of [Herbster's] issues on appeal is his claim that Rule 1910.19(f) of the Pennsylvania Rules of Civil Procedure permits him to seek modification of his current support obligation even though he is incarcerated.” The Superior Court then held “We are constrained to agree.” The Superior Court reiterated that it is the petitioning parent’s burden to specifically aver the material and substantial change in circumstances upon which the petition is based, and the petition shall be granted “if the requesting party demonstrates a substantial change in circumstances.” The seminal case regarding whether incarceration constitutes a change in circumstances warranting a modification or termination of a child support order is the Pennsylvania Supreme Court case of Yerkes v. Yerkes. Because the Pennsylvania Supreme Court, prior to Yerkes “never directly addressed whether incarceration, standing alone, is a �material and substantial change in circumstances’ that provides sufficient grounds for modification or termination of a child support order,” the Supreme Court in Yerkes analyzed three approaches in other jurisdictions with regard to the interplay between incarceration and child support modification or termination. In Yerkes, the Supreme Court adopted the “no justification” rule regarding incarceration and child support modification. Pursuant to the “no justification” rule, incarceration, alone, is not a “�material and substantial change in circumstances’ providing sufficient grounds for modification or termination of a child support order.” The Supreme Court in Yerkes also “disapproved” of the Pennsylvania Superior Court’s decision in Leasure v. Leasure where the Superior Court held that “a child support obligation should be suspended where the obligor is incarcerated” as that approach conflicts with the “no justification” approach. Under new Subsection (f) in Rule 1910.19 (made effective May 19, 2006): “The court may modify or terminate a charging order for support and remit any arrears, all without prejudice, when it appears to the court that the order is no longer able to be enforced under state law, or the obligor is unable to pay, has no known income or assets and there is no reasonable prospect that the obligor will be able to pay in the foreseeable future.” In the Explanatory Comment (2006) to 1910.19(f), it states: “New Subdivision (f) addresses an increasing multiplicity of circumstances in which the continued existence of a court-ordered obligation of support is inconsistent with rules of law. � [A]n obligor with no verifiable income or assets whose � incarceration � precludes the payment of support renders the support order unenforceable and uncollectible, diminishing the perception of the court as a source of redress and relief.” Herbster “tracked the language of Rule 1910.19(f)(2)” when he requested his relief in his 2006 modification petition. The Superior Court stated that they discovered no case law from either the Superior Court or state Supreme Court that discusses “the application of this subdivision in relation to our Supreme Court’s decision in Yerkes.” The Superior Court further stated, “[m]oreover, the explanatory comment for the new subdivision makes no reference to the Yerkes decision.” The Superior Court then focused on the case of Fisher v. Commonwealth, Dept. of Corrections, a 2007 Commonwealth Court case and stated: “In Fisher, one Commonwealth Court judge agreed with the Department of Corrections’ assertion that an inmate may �seek modification of his [or her] support orders while in prison, as now allowed by Pa. R.C.P. No. 1910.19(f).’” Interestingly, the Superior Court’s quoting of Fisher was in reference to a judge’s dissenting opinion. The Superior Court then states that their reading of 1910.19(f) supports the conclusion of the dissenting judge in Fisher, and, therefore, vacated the order denying Herbster’s petition and directed the trial court, upon remand, to follow the “dictates of Rule 1910.19(f).” Pursuant to Nash, incarceration will now be considered a substantial change in circumstances enabling an obligor to petition the court to modify or terminate his or her child support obligation. What is not clear from the Superior Court’s opinion in Nash is whether incarceration alone will warrant the actual modification or termination, since the court did not elaborate on Herbster’s claim that his mental state also keeps him from holding steady employment. The Superior Court went into detail regarding the concurring opinions in Yerkes with regard to incarceration being a factor when modifying or terminating child support and that it could be a substantial change in circumstances, though incarceration alone would not justify the modification or termination. The Superior Court appeared to hang its hat on a dissenting opinion of the Commonwealth Court. Regardless, the ultimate determination appeared to lie in the plain meaning of the explanatory comment accompanying 1919.19(f). It will be interesting to see how the Supreme Court handles this issue if it is faced with it in the future. Until that time comes, by applying 1910.19(f), incarceration may be considered a substantial change in circumstances for purposes of modifying or terminating child support. • Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin 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 former member of Council of the Family Law Section of the Pennsylvania Bar Association.

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