[30 Pa.B. 3155]
[Continued from previous Web Page]
Explanatory Comment--2000 New Rule 1910.22 implements 23 Pa.C.S. § 4352(d) as amended by Act 1997-58 and Act 1998-127. Under prior law, the existence of overdue support created only a judgment by operation of law against the obligor. The judgment did not, however, operate as a lien against the property until and unless, either at the direction of the court or upon praecipe of the party, the court certified the overdue support and entered it of record at the prothonotary's office. Pursuant to § 4352(d), as amended, the existence of overdue support not only creates a judgment by operation of law against the obligor, it also creates a lien by operation of law against the obligor's real property. The practical effect of this amendment is that certification by the court is no longer required to create the lien on real property. It is the existence of overdue support, not its judicial certification, which creates the lien on real property. The lien also extends to any and all real property owned by the obligor which is located in Pennsylvania.
While the existence of overdue support creates an automatic lien on real property, it does not create an automatic lien against an obligor's personal property. Nor does it have the effect of a fully perfected security interest in such property until the Department of Public Welfare establishes a statewide system for providing public notice of liens on such property. To the extent, however, that overdue support continues to operate as a judgment by operation of law against the obligor, it may still also be reduced to a judgment of record and satisfied through levy and execution on both real and personal property in the manner prescribed in Rule 1910.24.
1. Subdivision (a) requires that the overdue support be ''of record'' at the domestic relations section. Overdue support becomes a matter of record at the time it is automatically recorded into the PACSES computer system. Since statewide implementation of PACSES means that every domestic relations section in Pennsylvania now has equal access to all information relating to overdue support obligations, no additional paperwork in or by the county is necessary for a lien on real property to become of record for purposes of giving the lien statewide effect against the obligor's real property.
When the overdue support obligation arises in another state but is forwarded for enforcement in Pennsylvania, the originating state must initially forward it to the Department of Public Welfare Central Registry. The Central Registry will verify the amount owed and transmit the information to the appropriate domestic relations section. The domestic relations section must then enter this amount in its records. This recording creates the ''lien of record'' making the foreign obligation enforceable as a lien against any and all real property owned by obligor which is located in Pennsylvania.
2. While certification of overdue support is no longer necessary to create the lien on real property, certification is necessary for purposes of satisfying and removing the lien from the property prior to refinancing or sale of the property. Subdivisions (b) through (d) prescribe the procedures for obtaining this written certification. The effect of certification on the rights and liabilities of the parties involved in the actual refinancing or sales transaction is set forth in 23 Pa.C.S. § 4352(d.1)(3).
3. Subdivision (c) sets forth the limited grounds for objecting to the imposition of a lien on real property. The third ground for objection is that the property is exempt from attachment as a matter of law. This objection contemplates property held by the obligor and his or her spouse as tenants by the entireties.
4. 23 Pa.C.S. § 4352(d.1)(2) through (9) establish the priorities of liens against real property. Pursuant to 23 Pa.C.S. § 4352(d.1)(2)(i)(B), moreover, any overdue support existing on the effective date of this rule which becomes a lien on property in another county solely by virtue of the promulgation of this rule shall have priority against the property in the other county only from the effective date of this rule.
Rule 1910.23. Support Order. Enforcement. Attachment of Assets Held by Financial Institutions.
(a) Upon identification of an obligor's assets held by a financial institution, the court shall, upon certification of the overdue support owed by the obligor, enter an immediate order prohibiting the release of those assets until further order of court. The order shall be served on the financial institution in the manner prescribed by Rules 400 through 406 governing service of original process or by registered mail, return receipt requested. Service by mail is complete upon the return of the registered mail receipt personally signed by the financial institution or other evidence of service satisfactory to the court. Service of the order on the financial institution shall attach the asset up to the amount of the overdue support until further order of court.
(b) The domestic relations section shall provide written notification of the attachment to the obligor. The obligor and any joint owner of the account who has been notified by the financial institution may object to the attachment in writing or by personal appearance before the domestic relations section within 30 days after issuance of the notice. The grounds for an objection are limited to the following: (1) no overdue support exists under the support order or there is a mistake in the certified amount of overdue support; (2) there is a mistake in the identity of the obligor; or (3) the account is not subject to attachment as a matter of law.
(c) If no objection is made within 30 days after notice was issued, the court shall, upon proof that obligor was properly served with notice of the attachment, enter an order seizing the assets up to the amount of overdue support owed. The order shall be served on the financial institution and a copy of the order provided to both parties.
Explanatory Comment--2000 Rule 1910.23 implements 23 Pa.C.S. § 4305(b)(10) (iii) authorizing the attachment and seizure of an obligor's assets held in financial institutions. A ''financial institution'' is defined in 23 Pa.C.S. § 4304.1(g) and includes any bank, federal or state credit union, insurer, safe deposit company or money-market mutual fund authorized to do business in Pennsylvania.
Subdivision (b) of this rule sets forth the three limited grounds for objecting to an attachment of assets under this rule. The third ground for objection--that the assets are not subject to attachment as a matter of law--chiefly contemplates assets held by the obligor and his or her spouse as tenants by the entireties. Other examples include assets being held in an escrow or trust account in the name of the obligor as the escrowee or trustee.
Rule 1910.24. Support Order. Enforcement. Judgment for Arrearages. Petition to Correct Judgment. Execution.
(a) On and after the date it is due, overdue support shall constitute a judgment against the obligor as provided by law. The prothonotary shall enter the judgment of record upon the proper docket and in the judgment index either at the direction of the court or upon praecipe of a party or the domestic relations section. The judgment must be accompanied by a written certification showing that obligor owes overdue support pursuant to an order of court.
(b) A petition to correct the judgment shall be limited to the following grounds: (1) no overdue support exists under the support order or (2) there is a mistake in the amount of overdue support. The petition initially shall be determined before a conference officer or hearing officer in the same manner as an original proceeding for support. Except as provided by order of court, the filing of a petition to correct a judgment shall not stay the proceedings.
Official Note: It is important to note that the petition to strike or open a judgment used in civil practice is not adopted here.
(c) The judgment may be enforced against the obligor's real or personal property as provided by Rules 3001 through 3011, governing transfer of judgments, and Rules 3101 through 3149, governing enforcement of judgments for the payment of money.
Official Note: See Section 8104 of the Judicial Code, 42 Pa.C.S., § 8104, which imposes a duty upon a judgment creditor who has received satisfaction of a judgment, upon written request and tender of the fee, to enter satisfaction in the office of the clerk of court (the prothonotary) in which the judgment is outstanding.
Explanatory Comment--2000 Rule 1910.24 incorporates former Rules 1910.23-1 and 1910.23-2 prescribing the procedures for reducing overdue support to a judgment of record against the obligor and for petitioning to have the judgment corrected in the event the amount of overdue support is incorrect. Although 23 Pa.C.S. § 4352(d) states that ''a support obligation'' constitutes a judgment by operation of law, subdivision (a) states that only overdue support constitutes a judgment by operation of law. This is in accordance with Welz v. Stump, 403 Pa. Super. 93, 588 A.2d 47 (1991) which holds that a judgment cannot be entered against the obligor for past due support when the support order specifically provides for repayment of the past due support in monthly installments and the obligor is in compliance with the order.
A judgment entered of record does not arise simply when a support obligation becomes due and remains unpaid. Nor does it arise merely upon the court's determination of the amount of arrears as of a particular date. Rather, the court must specifically direct that the judgment in the specified amount be entered of record. The prothonotary must then enter the judgment in the proper docket and judgment index in order to create the notice of the judgment. Only after the judgment has been properly entered of record is the judgment enforceable under the general rules of civil procedure governing garnishment and execution against the obligor's real or personal property.
Rule 1910.24's authorized use of the prothonotary to enforce a judgment does not in any way limit the authority of the domestic relations section to issue writs and orders pursuant to 23 Pa.C.S. § 4305(b).
[Rule 1910.21-1] Rule 1910.25. Enforcement. Support Order. Civil Contempt. Petition. Service. No Answer Required.
(a) Upon failure to comply with an order of support, a petition for civil contempt
(1) may be filed by the obligee at any time, or
(2) shall be filed by the domestic relations section
(i) immediately upon the accrual of arrearages in any amount for fifteen days where it is known at the outset that income cannot be attached; or
(ii) immediately upon learning that an order for [attachment pursuant to Rule 1910.22] income withholding pursuant to Rule 1910.21 has been ineffective, or within [ninety] twenty days of failure to comply with the order of support, whichever is earlier.
Official Note: Except as provided in 23 Pa.C.S. § 4355 relating to suspension of licenses, an order entered pursuant to a contempt proceeding which establishes a rate of repayment on overdue support does not preclude the use of other remedies under Title 23 or these Rules for collecting overdue support more quickly, whenever feasible.
* * * * * Rule [1910.21-2] 1910.25-1 Civil Contempt. Hearing by Court. Conference by Officer.
(a) After service of the petition and order of court upon the respondent, there shall be (1) an office conference conducted by a conference officer, as provided by [Rule 1910.21-3] Rule 1910.25-2, or (2) an immediate hearing by the court, if permitted by the court.
(b) If, at any time during a contempt proceeding, including proceedings under [1910.21-3, 1910.21-4, and 1910.21-5] 1910.25-2, 1910.25-3 and 1910.25-4, the hearing officer or conference officer determines that the failure to comply with the support order is willful and there is present ability to comply, the petition for contempt shall be heard by the court for consideration of incarceration and other appropriate sanctions.
Official Note: The determination required by subdivision (b) shall be made by a conference officer in counties adopting the procedure of Rule [1910.21-4] 1910.25-3 (conference and hearing de novo) or by a hearing officer in counties adopting the alternative procedure of Rule [1910.21-5] 1910.25-4 (record hearing and exceptions).
Courts should strive to hear these cases promptly, on the same day if possible.
Rule [1910.21-3] 1910.25-2. Civil Contempt. Office Conference. Agreement. Alternative Procedures Upon Failure to Agree.
* * * * * (d) If an agreement is not reached, the procedure shall be as prescribed by Rule [1910.21-4] 1910.25-3 unless the court by local rule adopts the alternative procedure of Rule [1910.21-5] 1910.25-4.
Rule [1910.21-4] 1910.25-3. Civil Contempt. Conference Summary. Order. Hearing De Novo.
(a) * * *
Official Note: The sanction of imprisonment may be imposed only following an evidentiary hearing before a judge. See Rule [1910.21-6(a)] 1910.25-5(a).
* * * * * (d) If the court does not enter an order under Rule [1910.21-3(c)] 1910.25-2(c) or subdivision (b) of this rule within five days of the conference, or if an order isentered and a demand for a hearing before the court is filed, there shall be a hearing de novo before the court. The domestic relations section shall schedule the hearing and give notice to the parties. The hearing de novo shall be held no later than seventy-five days after the date the petition for contempt was filed.
* * * * * Rule [1910.21-5] 1910.25-4. Civil Contempt. Alternative Procedure. Record Hearing. Report. Exceptions. Order.
(b) * * *
Official Note: The sanction of imprisonment may be imposed only following an evidentiary hearing before a judge. See Rule [1910.21-6(a)] 1910.25-5(a).
* * * * * Rule [1910.21-6] 1910.25-5. Civil Contempt. Contempt Order. Incarceration.
(b) * * *
Official Note: The time periods set forth in Rules [1910.21-1 through 1910.21-6] 1910.25 through 1910.25-6 are for the benefit of the plaintiff, and not for the defendant. The goal is the prompt initiation of contempt proceedings because of the importance of ongoing support payments. The time periods in no way limit the right of either the domestic relations section or the plaintiff to proceed with a contempt action.
[Rule 1910.21-7] Rule 1910.25-6. Civil Contempt. No Post Trial Relief.
No motions for post trial relief shall be filed to any orders entered pursuant to [Rules 1910.21-1 through 1910.21-6] Rules 1910.25 through 1910.25-6.
Rule 1910.26. Support Order. Enforcement. Stay of Proceedings. Special Relief.
(a) An action for support or a support order may be stayed only by a special order of court upon a showing of compelling circumstances following notice and hearing or upon agreement of the parties in writing.
(b) At any time after the filing of the complaint, the court may on application issue a preliminary or special injunction, appoint a temporary receiver, order the seizure of property, dispose of seized property or grant other appropriate interim or special relief.
Explanatory Comment--2000 New Rule 1910.26 merely consolidates into one rule the provisions formerly found in Rules 1910.24 and 1910.25.
Subdivision (a) continues to reflect the existing policy of eliminating delay and procedural impediments to the receipt of support. The routine granting of a stay of proceedings would defeat this policy and have a disastrous effect upon a destitute obligee and child. Thus, a stay of an action forsupport or of a support order may only be granted (1) upon a special order of court following notice and hearing or (2) upon written agreement of the parties.
Subdivision (b) continues to reflect the availability of special relief. Sections 1 and 2 of the Act 1907, 48 P. S. §§ 131 and 132, authorize the bringing of an action at law or in equity to enforce the duty of support. These sections are suspended by these Rules insofar as they provide practice and procedure for an action of support. However, equitable remedies may still be useful in a case which warrants them. Illustrations are the enjoining of a resident trustee from disbursing funds to a defendant beneficiary outside the Commonwealth or to an improvident defendant or obtaining satisfaction from a spendthrift trust. The Rule contains a broad provision empowering the court to provide special relief where appropriate. It may also be used to freeze and seize income or assets to secure past due support when appropriate. See Rule 1910.1 and Rule 1910.20 Explanatory Comments.
[Rule 1910.26] Rule 1910.27. Form of Complaint. Order. Income and Expense Statement. Health Insurance Coverage Information Form. Form of Support Order. Form Petition for Modification.
* * * * * [Rule 1910.27] Rule 1910.28. Order for Earnings and Health Insurance Information. Form of Earnings Report. Form of Health Insurance Coverage Information.
* * * * * Rule 1910.29. Conduct of Record Hearing. Evidence.
Except as provided in this Rule, the Pennsylvania Rules of Evidence shall be followed in all record hearings conducted in an action for support. A verified petition, affidavit or document, and any document incorporated by reference therein which would not be excluded under the hearsay rule if given in person shall be admitted into evidence if (1) at least 20 days' written notice of the intention to offer them into evidence was given to the adverse party accompanied by a copy of each document to be offered; (2) the other party does not object to their admission into evidence; and (3) the evidence is offered under oath by the party or witness. An objection must be in writing and served on the proponent of the document within 10 days of the date of service of the notice of intention to offer the evidence. When an objection is properly made, the Rules of Evidence shall apply to determine the admissibility of the document into evidence.
Explanatory Comment--2000 23 Pa.C.S. § 4342(f) creates a hearsay exception in support actions to permit a verified petition, affidavit or document and a document incorporated by reference in any of them to be admitted into evidence if it would not otherwise be excluded as hearsay if given in person and it is admitted under oath by a party or witness to the support action. Rule 1910.29 requires that notice of the documents to be admitted be given to the other party prior to the hearing. It also sets forth the procedures for raising an objection to the admission of those documents.
If the requisite 20-day notice is given and there is no objection, the document must be admitted into evidence under this rule and 23 Pa.C.S. § 4342(f). In the event an objection is timely made, the rules of evidence apply to determine the document's ultimate admissibility.
Rule 1910.29 is not intended to affect 23 Pa.C.S. § 4342(g) and (h) relating to admissibility of payment records, billing statements and bills for genetic testing and prenatal and postnatal health care of the mother and child. Those documents are admissible into evidence without advance notice for the limited purposes which are expressly set forth in those statutory provisions.
Rule 1910.50. Suspension of Acts of Assembly.
The following Acts or parts of Acts of Assembly are suspended insofar as they apply to the practice and procedure in an action for support:
(1) Section 3 of the Support Law of June 24, 1937, P. L. 2045, 62 P. S. § 1973, insofar as it provides a procedure to enforce the liability of relatives for the support of an indigent person; and
(2) Section 4 of Act 1996-20, 23 Pa.C.S. § 4342, insofar as it provides that long arm jurisdiction shall be used in preference to proceedings under Part VIII-A relating to intrastate family support actions; [and]
(3) Act Nos. 1997-58 and 1998-127 insofar as they are inconsistent with Rule 1910.20 relating to the availability of remedies for collection of past due and overdue support;
(4) Section 4 of Act 1997-58, 23 Pa.C.S. § 4342(f), insofar as it is inconsistent with Rule 1910.26 as it relates to record hearings in support actions;
(5) Section 4 of Act 1998-127, 23 Pa.C.S. § 4352(d), insofar as it is inconsistent with Rule 1910.22 providing that overdue support on public record at the domestic relations section constitutes a lien of record against all real property within the state of Pennsylvania which is owned by the obligor;
(6) Section 4 of Act 1998-127, 23 Pa.C.S. § 4352(d.1), only insofar as subsection (1) of that provision provided that the underlying support action shall either be pending at the county domestic relations section or shall be enforced by the county domestic relations section in order for a lien to arise against real property located in that county; and
(7) All Acts or parts of Acts of Assembly inconsistent with these rules to the extent of such inconsistency.
CHAPTER 1920. ACTIONS OF DIVORCE OR FOR ANNULMENT OF MARRIAGE Rule 1920.31. Joinder of Related Claims. Child and Spousal Support. Alimony. Alimony Pendente Lite. Counsel Fees. Expenses. [Effect of Decree on Spousal Support.]
(a) (1) Within thirty days after the service of the pleading or petition containing a claim for child or spousal support, alimony, alimony pendente lite or counsel fees, costs and expenses, each party shall file a true copy of the most recent federal income tax return, pay stubs for the preceding six months and a completedincome and expense statement in the manner and form required by Rules 1910.11 and [Rule 1910.26] Rule 1910.27.
* * * * * Rule 1920.52. Hearing by the Court. Decision. No Post-Trial Relief. Decree.
* * * * * [(c) Where a paternity matter is tried by jury, post-trial practice shall be permitted in accordance with Rules of Civil Procedure 227.1.
Official Note: Post-trial motions are a prerequisite to appeal in paternity matters tried by jury.]
[(d)] (c) * * *
[(e)] (d) * * *
CHAPTER 1930. RULES RELATING TO DOMESTIC RELATIONS MATTERS GENERALLY Rule 1930.2. No Post-Trial Practice. Motions for Reconsideration.
(a) There shall be no motions for post-trial relief in any domestic relations matter [except that where a paternity matter is tried by jury, post-trial practice shall be permitted in accordance with Rule of Civil Procedure 227.1].
* * * * *
Explanatory Comment 1994 [With the exception of paternity jury trials] All post-trial practice in domestic relations cases is abolished by this rule. [Post-trial practice in paternity jury trials is governed by Rule of Civil Procedure 227.1.] In order to allow the trial court to take a second look at a case before it is appealed to the Superior Court, the rule allows a request for reconsideration to be filed in accordance with Appellate rule 1701(b)(3). The aim of these rules is to ensure that domestic cases are moved as quickly as possible toward a final resolution, and thus the requirement of Appellate Rule 1701 that the motion for reconsideration be filed and granted within the thirty day appeal period is adopted here. If the motion for reconsideration is granted, the time for filing the notice of appeal is tolled. However, if it is not granted, there is no extension of the appeal period, so that the matter proceeds without delay.
Rule 1930.3. [Use of Telephone Testimony] Testimony by Electronic Means.
With the approval of the court upon good cause shown, [telephone testimony may be taken] a party or witness may be deposed or testify by telephone, audiovisual or other electronic means at a designated location in all domestic relations matters.
Explanatory Comment--2000 This rule is amended to implement 23 Pa.C.S. § 4342(j) which sets forth the various electronic methods that may be used to take testimony in an action for support. It also extends these methods to all domestic relations matters.
[Pa.B. Doc. No. 00-1076. Filed for public inspection June 23, 2000, 9:00 a.m.]
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