divorce decree

Ten days after hearing arguments in a case about whether or not college payments for adult children can be used as a credit to offset future child-support payments owed to minor children, the state Supreme Court dismissed the appeal as having been improvidently granted.

On May 16, the justices issued the one-page per curiam order in Mickman v. Mickman, which involves a dispute over whether a trial court properly assessed child support and alimony pendente lite payments against Richard Mickman, who has five children, some of whom were minors at the trial’s outset.

The order will let stand a Superior Court holding that the Montgomery County Court of Common Pleas properly considered the guidelines when reviewing and affirming the lower court’s order. The high court heard arguments in the case May 6.

In October 2013, the Supreme Court granted allocatur with arguments limited to whether a child-support obligor can receive a support credit, used to offset against the future support owed to minor children, when the credit represents college expenses paid for adult children. The justices also granted argument on whether the Superior Court’s decision in the case conflicts with the Superior Court’s 1991 ruling in Horst v. Horst.

According to James C. Sargent of Lamb McErlane, who argued before the high court for Richard Mickman, the issues presented before the justices were not ripe for review.

Sargent said that while the trial court’s order granted Richard Mickman a credit for money spent on education, the order did not designate the credit as specifically in exchange for the child support of minor children. He said plaintiff Elaine Mickman’s arguments were speculative.

“The justices quite clearly, when oral argument was conducted, realized that the issue in fact was not present in the case because the trial court had never ordered that a college credit could be used as an offset against credit currently used for minor children,” Sargent said. “It was the right result under the circumstances.”

Elaine Mickman’s attorney, Rebecca Bell of Douglassville, Pa., did not return a call for comment.

Bell told the Law Weekly in October 2013 that the Superior Court’s decision conflicted with Horst.

“It’s a bad decision and it should be overturned,” Bell had said about Mickman. “It effectively takes food and necessary expenses out of [the younger children's] mouths.”

Elaine Mickman, in her appeal to the Superior Court from the trial court’s final decree in divorce, argued, among other things, that her ex-husband should not have received a $550,000 credit for the payment of college tuition and additional expenses for two of the couple’s children. She contended that the trial court did not conduct the required analysis, that the items considered for the credits were not included in the child-support guidelines, and that the court created a windfall to Richard Mickman at her expense.

According to Judge Sallie Updyke Mundy, who wrote the Superior Court’s memorandum opinion, Elaine Mickman said that to “give [Richard Mickman] credit for these items and remit all arrears under these circumstances is an improper ‘double dip.’”

In his cross-appeal, Richard Mickman said the trial court erred in its calculation of child support. However, he said the court failed to apply to his retroactive child-support payments new child-support guidelines that went into effect in May 2010.

In its 51-page unpublished memorandum, the Superior Court sided with the trial court, ruling that the trial court performed an adequate six-day hearing regarding both parties’ expenses and that the trial court properly outlined its reasons for deviating from the child-support standards.

“Despite the appellant’s averments, the trial court properly considered the guidelines, in conjunction with the evidence presented, and determined the appropriate amount of support,” Mundy said. “The court has the discretion to deviate from the guidelines as long as the deviations are supported by the record.”

Judge John L. Musmanno and Senior Judge James J. Fitzgerald III joined the opinion.

Horst determined that a parent is required to, if necessary, sacrifice to support minor dependent children, but is not required to sacrifice to support sending an older child to college or post-high school training.

The case involved a father who claimed that a court failed to consider his voluntary contribution toward his son’s tuition at Drexel University when making an award for support to the minor dependent children. The court found the father’s claim to be without merit. The court said that continuing the older child’s education cannot diminish the father’s primary duty to provide for the dependent children before “reaching into the financial pool to educate the older child.”

The court found that the minor-child support takes precedence over college support and the basic needs of the minor dependent cannot be reduced to allow for college support when funds are not adequate for both.

Sargent said Mickman did not address the same issue as Horst, and that, under Horst, it is well established that past payments for adult children cannot be used to offset current child-support payments.

“This is not a case where that issue was challenged at all,” Sargent said.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •