Yerkes v. Yerkes

Justice SAYLOR,

concurring.

Although I see merit in the majority’s approach, I would endorse the Superior Court’s, which reposed substantial discretion in the trial court to assess the fact of incarceration as one factor in determining whether to grant a petition for modification or termination of child support, particularly in the absence of a specific legislative directive otherwise. See Leasure v. Leasure, 378 Pa.Super. 613, 616-17, 549 A.2d 225, 226-27 (1988) (stating that the trial court should consider, inter alia, the length of incarceration and the assets of the incarcerated parent in reviewing a petition for modification or suspension of child support payments);¹ see also Kelley v. Kelley, 444 Pa.Super. 286, 288, 663 A.2d 785, 786 (1995) (holding that the fact of incarceration is “but one of several factors” that the trial court must consider in deciding whether to suspend support payments). In any event, given the particular circumstances of this case, I find no abuse of discretion in the trial court’s denial of Appellant’s petition for termination.

1 . Although some jurisdictions have viewed Leasure as embracing the complete justification rule, see, e.g., Halliwell v. Halliwell, 326 N J.Super. 442, 741 A.2d 638, 645 (1999); In re Marriage of Thurmond, 265 Kan. 715, 962 P.2d 1064, 1070-71 (1998), others have more appropriately categorized it as adopting the one factor rule. See In re Marriage of Burbridge, 317 Ill.App.3d 190, 250 Ill.Dec. 510, 738 N.E.2d 979, 982 (2000); In re Marriage of Hamilton, 857 P.2d 542, 544 (Colo.Ct.App.1993).

1 . Courts have the independent authority to discern public policy in the absence of legislation. Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231, 1237 (1998). "It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.” Lurie v. Republican Alliance, 412 Pa. 61, 192 A.2d 367, 370 (1963) (quoting Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407, 409 (1941); Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24, 27 (1962) (Bell, J., concurring)).