THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 1910 ]

Proposed Amendment of Pa.R.C.P. No. 1910.16-4(d)

[45 Pa.B. 6972]
[Saturday, December 12, 2015]

 The Domestic Relations Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Pa.R.C.P. No. 1910.16-4(d) governing calculation of child support in divided or split custody cases for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Bruce J. Ferguson, Counsel
Domestic Relations Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
Fax: 717-231-9531
domesticrules@pacourts.us

 All communications in reference to the proposal should be received by February 25, 2016. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Domestic Relations
Procedural Rules Committee

DAVID J. SLESNICK, Esq., 
Chair

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1910. ACTIONS FOR SUPPORT

Rule 1910.16-4. Support Guidelines. Calculation of Support Obligation, Formula.

*  *  *  *  *

 (d) Divided or Split Physical Custody. When Each Party [Has Primary Custody of One or More of the Children] Owes Child Support to the Other Party. Varied Partial or Shared Custodial Schedules.

 (1) Divided or Split Physical Custody. When Each Party [Has Primary Custody of One or More of the Children] Owes Child Support to the Other Party. When calculating a child support obligation, and [one or more of the children reside primarily with] each party owes child support to the other party as a result of the custodial arrangement, the court shall offset the parties' respective child support obligations and award the net difference to the obligee as child support. [For example, if]

 Example 1. If the parties have three children, one [of whom resides with Father and two of whom reside with Mother] child resides with the higher income party and two children reside with the lower income party, and their net monthly incomes are $2,500 and $1,250 respectively, [Father's] the higher income party's child support obligation is calculated as follows. Using the schedule in [Rule] Pa.R.C.P. No. 1910.16-3 for two children at the parties' combined net monthly income of $3,750, the amount of basic child support to be apportioned between the parties is $1,200. As [Father's] the higher income party's income is 67% of the parties' combined net monthly income, [Father's] the higher income party's support obligation for the two children living with [Mother] the lower income party is $804. The lower income party's child support obligation is calculated as follows. Using the schedule in [Rule] Pa.R.C.P. No. 1910.16-3 for one child, [Mother's] the lower income party's support obligation for the child living with [Father] the higher income party is $276. Subtracting $276 from $804 produces a net basic support amount of $528 payable to [Mother] the lower income party as child support.

 Example 2. If the parties have two children, one child resides with the higher income party and the parties share custody (50% - 50%) of the other child, and the parties' net monthly incomes are as set forth in Example 1, the child support obligation is calculated as follows. Using the schedule in Pa.R.C.P. No. 1910.16-3 for the one child primarily residing with higher income party at the parties' combined net monthly income of $3,750, the amount of basic child support to be apportioned between the parties is $836. The lower income party's income is 33% of the parties' combined net monthly income, and the support obligation for the child living with the higher income party is $276. For the higher income party's obligation for the child with the 50% - 50% shared custody arrangement, using the schedule in Pa.R.C.P. No. 1910.16-3 for one child at the parties' combined net monthly income of $3,750, the amount of basic child support to be apportioned between the parties is $836. The higher income party's proportionate share of the combined net incomes is 67%, but is reduced to 47% after applying the shared parenting time adjustment for 50% custody under Pa.R.C.P. No. 1910.16-4(c). The higher income party's child support obligation for the shared custody child is $393 ($836 X 47%). As the higher income party's obligation is greater than the lower income party's obligation, the lower income party is the obligee and receives the net of the two obligations by subtracting $276 from $393, or $117.

 When calculating a combined child support and spousal or alimony pendente lite obligation, and one or more children reside with each party, the court shall offset the obligor's spousal and child support obligation with the obligee's child support obligation and award the net difference to the obligee as spousal and child support. When one or more of the children resides with each party then, in calculating the spousal support or alimony pendente lite obligation, the court shall deduct from the obligor's income both the support owed for the child or children residing with the obligee, as well as the direct support the obligor provides to the child or children living with the obligor, calculated in accordance with the guidelines as if the child or children were not living with the obligor.

 [(2) Varied Custodial Schedules. When the parties have more than one child and each child spends different amounts of partial or shared custodial time with the obligor, the trier of fact shall add the percentage of time each child spends with the obligor and divide by the number of children to determine the obligor's percentage of custodial time. If the average percentage of time the children spend with the obligor is 40% or more, the provisions of subdivision (c) above apply.]

 (2) Varied Partial or Shared Custodial Schedules. When the parties have more than one child and each child spends:

 (a) different amounts of partial or shared custodial time with the higher income party; or

 (b) different amounts of partial custodial time with the lower income party

 the trier of fact shall add the percentage of time each child spends with that party and divide by the number of children to determine the party's percentage of custodial time. If the average percentage of custodial time the children spend with the party is 40% or more, the provisions of subdivision (c) apply.

 Example 1. The parties have two children and one child spends 50% of the time with the [obligor and another] higher income party and the other child spends 20% of the time with the [obligor] higher income party. Add those percentages together and divide by the number of children (50% plus 20% = 70% divided by 2 children = 35% average of the time with the [obligor] higher income party). Pursuant to subdivision (c), the [obligor] higher income party does not receive a reduction in the support order for substantial parenting time.

 Example 2. The parties have three children. Two children spend 50% of the time with the [obligor and] higher income party and the third child spends 30% of the time with the [obligor] higher income party. Add the percentages of custodial time for all three children together and divide by the number of children (50% plus 50% plus 30% = 130% divided by three children = 43.33% average percentage of time with the [obligor] higher income party). Pursuant to subdivision (c), the [obligor] higher income party receives a reduction in the support order for substantial parenting time.

 Example 3. The parties have three children, the higher income party has primary custody (60% - 40%) of one child, the lower income party has primary custody (60% - 40%) of one child, and the parties share custody (50% - 50%) of the third child. The parties net monthly incomes are $2,500 and $1,250. As a result of the custodial arrangement, the lower income party owes support for the child in the primary custody of the higher income party and the higher income party owes support for the child in the primary custody of the lower income party and for the child shared equally between the parties. The lower income party's child support obligation is calculated as follows. Using the schedule in Pa.R.C.P. No. 1910.16-3 for one child at the parties' combined net monthly income of $3,750, the amount of basic child support to be apportioned between the parties is $836. The lower income party's proportionate share of the combined net incomes is 33%, but is reduced to 23% after applying the shared parenting time adjustment for 40% custody under Pa.R.C.P. No. 1910.16-4(c). The lower income party's child support obligation for this child is $192 ($836 X 23%). The higher income party's child support obligation is calculated as follows. Using the schedule in Pa.R.C.P. No. 1910.16-3 for two children at the parties' combined net monthly income of $3,750, the amount of basic child support to be apportioned between the parties is $1,200. The higher income party has varying partial or shared custody of the two children (40% and 50%). Under subdivision (d)(2), the custodial time is averaged or in this case 45%. The higher income party's proportionate share of the combined net incomes is 67%, but is reduced to 52% after applying the shared parenting time adjustment for 45% custody under Pa.R.C.P. No. 1910.16-4(c). The higher income party's child support obligation for these children is $624 ($1,200 x 52%). Offsetting the support amounts consistent with subdivision (d)(1), the higher income party's obligation is greater than the lower income party's obligation, and the lower income party is the obligee receiving the net of the two obligations by subtracting $192 from $624, or $432.

 Official Note: In cases with more than one child and varied partial or shared custodial schedules, it is not appropriate to perform a separate calculation for each child and offset support amounts as that method does not consider the incremental increases in support for more than one child built into the schedule of basic child support.

 In some of the examples, the terms ''higher income party'' and ''lower income party'' are used rather than the more usual ''obligor'' and ''obligee.'' In circumstances similar to the examples, it is often not immediately apparent which party will be the ''obligor'' or the ''obligee'' until after completing the calculation.

 (e) Support Obligations When Custodial Parent Owes Spousal Support. Where children are residing with the spouse obligated to pay spousal support or alimony pendente lite (custodial parent) and the other spouse (non-custodial parent) has a legal obligation to support the children, the guideline amount of spousal support or alimony pendente lite shall be determined by offsetting the non-custodial parent's obligation for support of the children and the custodial parent's obligation of spousal support or alimony pendente lite, and awarding the net difference either to the non-custodial parent as spousal support/alimony pendente lite or to the custodial parent as child support as the circumstances warrant.

*  *  *  *  *

PUBLICATION REPORT

 The Committee is proposing an amendment to Pa.R.C.P. No. 1910.16-4(d), Divided or Split Physical Custody. When Each Party Has Primary Custody of One or More of the Children. The Committee received input from several county Domestic Relations Hearing Officers and members of the bar that the current rule is confusing and is not clear in some cases involving multiple children with divided or split custody.

 Currently, Pa.R.C.P. No. 1910.16-4(d), in relevant part, states:

(d) Divided or Split Physical Custody. When Each Party Has Primary Custody of One or More of the Children. Varied Custodial Schedules.

(1) Divided or Split Physical Custody. When Each Party Has Primary Custody of One or More of the Children. When calculating a child support obligation, and one or more of the children reside primarily with each party, the court shall offset the parties' respective child support obligations and award the net difference to the obligee as child support.

*  *  *  *  *

(2) Varied Custodial Schedules. When the parties have more than one child and each child spends different amounts of partial or shared custodial time with the obligor, the trier of fact shall add the percentage of time each child spends with the obligor and divide by the number of children to determine the obligor's percentage of custodial time. If the average percentage of time the children spend with the obligor is 40% or more, the provisions of subdivision (c) above apply.

 From the language of this rule, it is clear that when both parties have primary custody of one child, subdivision (d)(1) applies and the parties' support obligations to each other are offset with the higher income party as the obligor. Additionally, subdivision (d)(2) of the rule is applicable in determining if a shared parenting time adjustment should be applied when an obligor has partial or shared custody of at least two children.

 However, the scenario not clearly addressed by the rule is the situation involving multiple children with the higher income party having primary custody of at least one child and the parties equally sharing custody of at least one child. As subdivision (d)(1) requires that both parties have primary custody of at least one child, the current subdivision (d)(1) is inapplicable to these facts. Likewise, this scenario would not fall under subdivision (d)(2) as this subdivision is only applicable in determining the shared parenting time adjustment when an obligor has shared or partial custody of at least two children.

 Under current subdivision (d)(1) of the rule, if the parties have primary custody of at least one child, each party has a duty of support to the other party and the support obligations are offset. The net difference of the two obligations would be paid to the party with the lower initial support obligation. With that said, the logical conclusion is that the primary custody and shared custody scenario best fits under subdivision (d)(1) as, typically, the higher income party would owe support to the lower income party for the equally shared child,¹ and the lower income party would owe support for the child primarily in the custody of the higher income party.²

 The Committee proposes amending subdivision (d)(1) clarifying the applicability of the subdivision to cases involving multiple children when both parties would owe child support to the other party based on the custodial arrangement. The obligee would be determined after offsetting the support obligations and any net difference between the two obligations would be paid to the obligee. To further illustrate this scenario, an example of the application of the rule to these facts has been added following subdivision (d)(1).

 Consequently, the Committee proposes amending subdivision (d)(2) clarifying the circumstances in which this subdivision is applicable in light of the proposed amendment to subdivision (d)(1) and modifying the heading to further illustrate the applicability of the subdivision. And, a third example has been added after subdivision (d)(2) with a factual scenario illustrating the interplay between subdivisions (d)(1) and (d)(2).

 The Committee considered other methods of calculating support for multiple children with varying custody schedules, including averaging the custody time of all the children. The obligee would be the party with the higher amount of average custodial time with the children. However, the Committee believed this method led to unfavorable results when it considered various custodial arrangements. For example, the parties have three children with one child with the higher income party 100% of the time and the other two children 50% custody with each party would result in the average custodial time of 67% for the higher income party, who would be the obligee. The lower income party would pay support without any reduction due to substantial custody despite having two children 50% of the time. The Committee believed this to be unfair and inequitable, instead, preferred the method set forth in the proposed amendment.

 Finally, the rule recommendation reflects a decision by the Committee to use gender neutral terms in the rules. In the future, as rules are amended or added, gender neutral terms will be substituted for specific gender terms (e.g. mother, father, husband, wife). With that policy determination in mind, in certain factual circumstances relevant to Pa.R.C.P. No. 1910.16-4(d), identifying the party who is the obligee or obligor is not readily apparent until completion of the entire calculation. An amended Note provides the rationale for the use of the terms ''higher income party'' and ''lower income party'' rather than the more frequently used terms ''obligor'' and ''obligee.''

[Pa.B. Doc. No. 15-2167. Filed for public inspection December 11, 2015, 9:00 a.m.]

_______

¹  As set forth in Pa.R.C.P. No. 1910.3(b)(2) and Pa.R.C.P. No. 1910.16-4(c)(2), the lower income party cannot be an obligor in a support case when a child spends equal time with both parties.

²  This scenario is the typical case unless the trier-of-fact determines that Colonna v. Colonna, 855 A.2d 648 (Pa. 2004) applies to the facts of the case. If the trier-of-fact determines Colonna to be applicable to the case, then Pa.R.C.P. No. 1910.16-4(d) would not be applicable as the lower income party would not owe child support for the child in the primary custody of the higher income party; however, the higher income party would continue to owe support to the lower income party for the shared custody child and any other additional support the trier-of-fact determines appropriate under Colonna for the other child.

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---