Bomberger v. Bomberger, PICS Case No. 14-0180 (C.P. Lawrence Jan. 16, 2014) Hodge, J. (16 pages).

COURTS OF COMMON PLEAS

The Legal Intelligencer

FAMILY LAW

Support • Modification • Retroactive Effect • Capital Expenditures • Marital Debt

Bomberger v. Bomberger, PICS Case No. 14-0180 (C.P. Lawrence Jan. 16, 2014) Hodge, J. (16 pages).

Wife was entitled to retroactive support under modified order. Husband's monthly obligation was decreased to reflect capital ex-penditures, but not marital debt. Order modified accordingly.

On April 30, 2013, wife sought increase to a support order consistent with the alleged increase in husband's income, and requested that it be applied retroactively from Jan. 1, 2012. One month later, husband counter-petitioned to modify the order, alleging that his income decreased that that the effective date of the new support order should be April 30, 2013, the date wife filed her petition to modify.

The court denied the increase, decreased husband's monthly support payments, and imposed the order retroactive to Jan. 1, 2012.

Generally, modification is governed by Pa.R.Civ.P. 1910.17(court cannot implement an effective date earlier than the date the underlying modification petition is filed). However, where, as here, support arrearages exist, §4352 of the Domestic Relations Code applies. Section 4352 permits retroactive application of support when a petitioner is precluded from filing a petition for modification due to misrepresentation or other "compelling reason" provided petitioner, when no longer precluded, promptly files a petition. Although husband did not misrepresent his income, wife was precluded from obtaining his exact income due to the nature of husband's revenue sources, and promptly filed a petition for modification after discovering husband's 2012 income. Thus, wife demonstrated compelling reason to afford the modified support order retroactive effect pursuant to §4352.

However, husband established that expenditures made to his business were necessary for its continued operation and smooth running, and thereby refuted wife's allegation that he used his corporation to shelter his cash flow. Thus, husband's gross income was reduced to reflect capital expenditures, but not payments made to loans taken out by the parties during their marriage.