THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[ 231 PA. CODE CH. 1910 ]
Order Amending Rules 1910.11, 1910.16-1, 1910.16-2, 1910.16-3, 1910.16-3.1, 1910.16-4, 1910.16-6, 1910.18 and 1910.19 and Rescinding Rule 1910.16 of the Pennsylvania Rules of Civil Procedure; No. 687 Civil Procedural Rules Doc.
[49 Pa.B. 170]
[Saturday, January 12, 2019]
Order Per Curiam
And Now, this 28th day of December, 2018, upon the recommendation of the Domestic Relations Procedural Rules Committee, the proposal having been published for public comment in the Pennsylvania Bulletin, 48 Pa.B. 4214 (July 21, 2018) and 48 Pa.B. 5831 (September 22, 2018):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1910.11, 1910.16-1, 1910.16-2, 1910.16-3, 1910.16-3.1, 1910.16-4, 1910.16-6, 1910.18, and 1910.19 of the Pennsylvania Rules of Civil Procedure are amended, and Rule 1910.16 is rescinded, in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on January 1, 2019.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1910. ACTIONS FOR SUPPORT Rule 1910.11. Office Conference. Subsequent Proceedings. Order.
[(a)(1) The office conference shall be conducted by a conference officer.]
(a) Office Conference.
(1) A conference officer shall conduct the office conference.
(2) [Any] A lawyer serving as a conference officer employed by, or under contract with, a judicial district or appointed by the court shall not practice family law before a conference officer, hearing officer, permanent or standing master, or judge of the same judicial district.
Official Note: Conference officers preside at office conferences under [Rule] Pa.R.C.P. No. 1910.11. Hearing officers preside at hearings under [Rule] Pa.R.C.P. No. 1910.12. The appointment of masters to hear actions in divorce or for annulment of marriage is authorized by [Rule] Pa.R.C.P. No. 1920.51.
(b) If [either] a party fails to appear at the conference [before the officer] as directed by the court, the conference may proceed.
[(c) At the conference, the parties shall furnish to the officer true copies of their most recent federal income tax returns, their pay stubs for the preceding six months, verification of child care expenses, and proof of medical coverage that they may have or have available to them. In addition, the parties shall provide copies of their Income Statements and Expense Statements in the forms required by Pa.R.C.P. No. 1910.27(c) and completed as set forth in (1) and (2) of this subdivision.
Official Note: See Pa.R.C.P. No. 1930.1(b). To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions (e.g., divorce, custody), the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply.
(1) For cases which can be determined according to the guideline formula, the Income Statement must be completed and the Expense Statement at Rule 1910.27(c)(2)(A) should be completed if a party is claiming unusual needs and unusual fixed expenses that may warrant a deviation from the guideline amount of support pursuant to Rule 1910.16-5 or seeks apportionment of expenses pursuant to Rule 1910.16-6. In a support case that can be decided according to the guidelines, even if the support claim is raised in a divorce complaint, no expense form is needed unless a party claims unusual needs or unusual fixed expenses or seeks apportionment of expenses pursuant to Rule 1910.16-6. However, in the divorce action, the Expense Statement at Rule 1910.27(c)(2)(B) may be required.
(2) For cases which are decided according to Rule 1910.16-3.1, the Income Statement and the Expense Statement at Rule 1910.27(c)(2)(B) must be submitted.]
(c) At the conference, the parties shall provide to the conference officer the following documents:
• the most recently filed individual federal income tax returns, including all schedules, W-2s, and 1099s;
• the partnership or business tax returns with all schedules, including K-1, if the party is self-employed or a principal in a partnership or business entity;
• pay stubs for the preceding six months;
• verification of child care expenses;
• child support, spousal support, alimony pendente lite, or alimony orders or agreements for other children or former spouses;
• proof of available medical coverage; and
• an Income Statement and, if necessary, an Expense Statement on the forms provided in Pa.R.C.P. No. 1910.27(c) and completed as set forth in subdivisions (c)(1) and (2).
Official Note: See Pa.R.C.P. No. 1930.1(b). To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions (e.g., divorce, custody), the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply.
(1) The parties shall provide the conference officer with a completed:
(i) Income Statement as set forth in Pa.R.C.P. No. 1910.27(c)(1) in all support cases, including high-income cases under Pa.R.C.P. No. 1910.16-3.1; and
(ii) Expense Statement as set forth in Pa.R.C.P. No. 1910.27(c)(2)(A), if a party:
(A) claims that unusual needs and unusual fixed expenses may warrant a deviation from the guideline support amount pursuant to Pa.R.C.P. No. 1910.16-5; or
(B) seeks expense apportionment pursuant to Pa.R.C.P. No. 1910.16-6.
(2) For high-income support cases as set forth in Pa.R.C.P. No. 1910.16-3.1, the parties shall provide to the conference officer the Expense Statement in Pa.R.C.P. No. 1910.27(c)(2)(B).
[(d)(1)] (d) Conference Officer Recommendation.
(1) The conference officer shall [make a recommendation to the parties of an amount of support calculated in accordance with the guidelines] calculate and recommend a guideline support amount to the parties.
[(2) If an agreement for support is reached at the conference, the officer shall prepare a written order substantially in the form set forth in Rule 1910.27(e) and in conformity with the agreement for signature by the parties and submission to the court together with the officer's recommendation for approval or disapproval. The court may enter the order in accordance with the agreement without hearing the parties.]
(2) If the parties agree on a support amount at the conference, the conference officer shall:
(i) prepare a written order consistent with the parties' agreement and substantially in the form set forth in Pa.R.C.P. No. 1910.27(e), which the parties shall sign; and
(ii) submit to the court the written order along with the conference officer's recommendation for approval or disapproval.
(iii) The court may enter the order in accordance with the agreement without hearing from the parties.
(3) In all cases in which one or both parties are unrepresented, the parties must provide income information to the domestic relations section so that a guidelines calculation can be performed.
* * * * * Rule 1910.16. [Support Order. Allocation] Rescinded.
[(a) In an order awarding child support and spousal support or child support and alimony pendente lite, the court may on its own motion or upon the motion of either party:
(1) Make an unallocated award in favor of the spouse and one or more children; or
(2) State the amount of support allocable to the spouse and the amount allocable to each child.
Official Note: See 23 Pa.C.S. § 4348(d) for additional matters that must be specified in an order of support if arrearages exist when the order is entered.
(b) An unallocated order for child support and spousal support or child support and alimony pendente lite shall be a final order as to all claims covered in the order. Motions for post-trial relief may not be filed to the final order.
Official Note: The procedure relating to Motions for Reconsideration is set forth in Pa.R.C.P. No. 1930.2.
Explanatory Comment—1994 The decision to allocate a support order has federal income tax consequences and an effect upon subsequent modification of an order. Allocation of an order, as well as other factors, will determine which party pays the federal income tax, and thus the actual cost of the support to the payor and the amount of money available to the payee. Allocation of the order permits the court to determine more easily whether modification of the order is warranted.
Explanatory Comment—2018 Subdivision (b) resolves the question of the appealability of an unallocated order and any other claims adjudicated in that order. The rule declares the orders are final and appealable. Not only is the unallocated support order final and appealable, so are the other claims covered in the order, irrespective of whether those would be final and appealable had the claims not been a part of the order awarding unallocated support.]
Rule 1910.16-1. Amount of Support. Support Guidelines.
* * * * * (b) [Amount of ] Support Amount. The [amount of ] support amount (child support, spousal support or alimony [pendente lite) to be] pendente lite) awarded pursuant to the [procedures under Rules] Pa.R.C.P. Nos. 1910.11 and 1910.12 [shall] procedures must be determined in accordance with the support guidelines, which consist of the guidelines expressed as the child support schedule [set forth in Rule] in Pa.R.C.P. No. 1910.16-3, the [formula set forth in Rule] Pa.R.C.P. No. 1910.16-4 formulas, and the operation of the guidelines as set forth in these rules.
(c) Spousal Support and Alimony Pendente Lite.
(1) [Orders for spousal support and alimony pendente lite shall] Spousal support and alimony pendente lite orders must not be in effect simultaneously.
(2) In determining [the duration of an award for spousal support or alimony pendente lite, the trier of fact] a spousal support or alimony pendente lite award's duration, the trier-of-fact shall consider the [duration of the marriage from] marriage's duration, i.e., the date of marriage to the date of final separation.
(d) Rebuttable Presumption. [If it has been determined that there is an obligation to pay support, there shall be a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of support to be awarded. The support guidelines are a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties. The trier of fact must consider the factors set forth in Rule 1910.16-5. The presumption shall be rebutted if the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate.] If the trier-of-fact determines that a party has a duty to pay support, there is a rebuttable presumption that the guideline-calculated support amount is the correct support amount.
(1) The presumption is rebutted if the trier-of-fact concludes in a written finding or states on the record that the guideline support amount is unjust or inappropriate.
(2) The trier-of-fact shall consider the children's and parties' special needs and obligations, and apply the Pa.R.C.P. No. 1910.16-5 deviation factors, as appropriate.
(e) Guidelines Review. The guidelines [shall] must be reviewed at least [once] every four years to [insure] ensure that [application results in the determination of appropriate amounts of support] their application determines appropriate support amounts.
* * * * *
Explanatory Comment—2017 Pursuant to Pa.R.C.P. No. 1910.3(a), a person having custody of a child or caring for a child may initiate a support action against the child's parent(s). Previously, this rule only addressed when a public body or private agency had custody of a child but was silent with regard to an individual third party, e.g., grandparent, seeking support. The rule has been amended by adding a new subdivision (a)(2) and renumbering the previous (a)(2) to (a)(3). In addition, an example illustrating the new (a)(2) calculation has been included.
Subdivision (a)(2) excludes the income of the third party/obligee, as that person does not have a duty of support to the child; instead, the rule uses the combined monthly net income of the parents to determine the basic child support amount, which is then apportioned between the parents consistent with their respective percentage of the combined monthly net income in the same manner as a parent vs. parent support action. However, under this rule, each parent would be a separate obligor, would pay the obligee their proportionate share under a separate support order, and would be subject to separate enforcement proceedings. Under (a)(2), the exclusion of the third party's income is consistent with Pa.R.C.P. No. [1910.16-2(b)(2)(B)] 1910.16-2(b)(2)(ii) as that rule relates to an action for support by a third party against a surviving parent in which the child receives a Social Security derivative benefit due to the death of the other parent.
In accordance with Pa.R.C.P. No. 1910.16-6(c), payment of the first $250 of unreimbursed medical expenses per year per child is applicable to third party/obligees in support actions governed by (a)(2). The first $250 of unreimbursed medical expenses is built into the Basic Child Support Schedule.
Rule 1910.16-2. Support Guidelines. Calculation of Monthly Net Income.
Generally, the support amount [of support to be] awarded is based [upon] on the parties' monthly net income.
(a) Monthly Gross Income. Monthly gross income is ordinarily based [upon] on at least a six-month average of [all of] a party's income. The [term ''income'' is defined by the] support law, 23 [Pa.C.S.A.] Pa.C.S. § 4302, defines the term ''income'' and includes income from any source. The statute lists many types of income including, but not limited to:
(1) wages, salaries, bonuses, fees, and commissions;
(2) net income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust;
(6) Social Security disability benefits, Social Security retirement benefits, temporary and permanent disability benefits, workers' compensation, and unemployment compensation;
(7) alimony if, in the trier-of-fact's discretion [of the trier of fact], inclusion of part or all of it is appropriate; and
Official Note: In determining the appropriateness of including alimony in gross income, the trier-of-fact shall consider whether the party receiving the alimony must include the amount received as gross income when filing his or her federal income taxes. If the alimony is not includable in the party's gross income for federal income tax purposes, the trier-of-fact may include in the party's monthly net income the alimony received, as appropriate. See Pa.R.C.P. No. 1910.16-2(c)(2)(ii).
Since the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipient's gross income must also vary. For example, if the obligor is paying $1,000 per month in alimony for the express purpose of financing the obligee's college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance the obligee's general living expenses, inclusion of the alimony as income is appropriate.
(8) other entitlements to money or lump sum awards, without regard to source, including:
(i) lottery winnings;
(ii) income tax refunds;
(iii) insurance compensation or settlements;
(iv) awards and verdicts; and
(v) [any form of payment] payments due to and collectible by an individual regardless of source.
Official Note: The [trial court has discretion to determine] trier-of-fact determines the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the party's support obligation. These awards may be annualized or [they may be] averaged over a shorter or longer period [of time] depending on the case's circumstances [of the case]. [They may also be escrowed in an amount sufficient] The trier-of-fact may order all or part of the lump sum award escrowed to secure the support obligation during that period [of time].
[Income tax refunds should not be included as income to the extent they were already factored into the party's actual tax obligation for purposes of arriving at his or her net income.] The trier-of-fact shall not include income tax refunds in a party's income, if the trier-of-fact factored in the tax refund when calculating the party's actual tax obligation and monthly net income.
(b) Treatment of Public Assistance, SSI Benefits, Social Security Payments to a Child Due to a Parent's Death, Disability or Retirement and Foster Care Payments.
(1) Public Assistance and SSI Benefits. Neither public assistance nor Supplemental Security Income (SSI) benefits shall be [counted] included as income for [purposes of] determining support.
(2) Child's Social Security Derivative Benefits [for a Child].
[(A) This subdivision (A) shall be applied if a child for whom support is sought is receiving Social Security derivative benefits as a result of either parent's retirement or disability.
(i) If a child for whom support is sought is receiving Social Security benefits as a result of a parent's retirement or disability, the amount of the benefit shall be added to the income of the party receiving the benefit on behalf of the child to calculate child support. Next, apportion the amount of basic child support set forth in the schedule in Rule 1910.16-3 between the parties based upon each party's percentage share of their combined net monthly income, including the child's benefit in the income of the party receiving it.
(ii) If the child's benefit is being paid to the obligee, the amount of the child's benefit shall be deducted from the basic support obligation of the party whose retirement or disability created the child's benefit. If the child's benefit is being paid to the obligor, the child's benefit shall not be deducted from the obligor's obligation, even if the obligor's retirement or disability created the child's benefit. In cases of equally shared custody, first determine which party has the higher income without the benefit, and thus is the obligor, before adding the child's benefit to the income of the party receiving it.
(iii) In cases in which the obligor is receiving the child's benefits, the domestic relations sections shall provide the parties with two calculations theoretically assigning the benefit to each household.
(iv) In allocating additional expenses pursuant to Rule 1910.16-6, the allocation shall be based upon the parties' incomes before the addition of the child's benefit to the income of the party receiving it.
(B) This subdivision (B) shall be applied when determining the support obligation of a surviving parent when the child for whom support is sought is receiving Social Security derivative benefits as a result of the other parent's death. The income of a non-parent obligee who is caring for a child but has no support obligation to that child shall include only those funds the obligee is receiving on behalf of the child, including the Social Security derivative benefits if they are being paid to the obligee. If the benefits are being paid to the surviving parent, the amount of the benefit shall be added to that parent's income to calculate child support.]
(i) If a child is receiving Social Security derivative benefits due to a parent's retirement or disability:
(A) The trier-of-fact shall determine the basic child support amount as follows:
(I) add the child's benefit to the monthly net income of the party who receives the child's benefit;
(II) calculate the parties' combined monthly net income, including the child's benefit;
(III) determine the basic child support amount set forth in the Pa.R.C.P. No. 1910.16-3 schedule; and
(IV) apportion the basic child support amount between the parties based on the party's percentage of the combined monthly net income.
(B) If the obligee receives the child's benefit, the trier-of-fact shall deduct the child's benefit from the basic support obligation of the party whose retirement or disability created the child's benefit.
(C) If the obligor receives the child's benefit, the trier-of-fact shall not deduct the child's benefit from the obligor's basic support obligation, even if the obligor's retirement or disability created the child's benefit. To illustrate for the parties the impact of the obligor receiving the benefit instead of the obligee, the domestic relations section shall provide the parties with two calculations theoretically assigning the benefit to each household.
(D) The trier-of-fact shall allocate the additional expenses in Pa.R.C.P. No. 1910.16-6 based on the parties' monthly net incomes without considering the child's benefit.
(E) In equally shared custody cases, the party with the higher monthly net income, excluding the child's benefit, is the obligor.
(ii) If a child is receiving Social Security derivative benefits due to a parent's death:
(A) The trier-of-fact shall determine the surviving parent's basic child support amount as follows:
(I) The non-parent obligee's monthly net income shall include only those funds the obligee is receiving on the child's behalf, including the Social Security derivative benefit.
(II) If the surviving-parent obligor receives the Social Security derivative benefit, the benefit shall be added to the parent's monthly net income to calculate child support.
(3) Foster Care Payments. If either party to a support action is a foster parent and/or is receiving payments from a public or private agency for the care of a child who is not his or her biological or adoptive child, those payments shall not be included in the income of the foster parent or other caretaker for purposes of calculating child support for the foster parent's or other caretaker's biological or adoptive child.
* * * * * (c) Monthly Net Income.
(1) Unless [otherwise provided in] these rules provide otherwise, the [court] trier-of-fact shall deduct only the following items from monthly gross income to arrive at monthly net income:
[(A)] (i) federal, state, and local income taxes;
[(B)] (ii) unemployment compensation taxes and Local Services Taxes (LST);
[(C)] (iii) F.I.C.A. payments (Social Security, Medicare and Self-Employment taxes) and non-voluntary retirement payments;
[(D)] (iv) mandatory union dues; and
[(E)] (v) alimony paid to the other party.
(2) In computing a spousal support or alimony [pendente lite] pendente lite obligation, the [court] trier-of-fact shall:
(i) deduct from the obligor's monthly net income [all of his or her child support obligations and any amounts of ] child support, spousal support, alimony [pendente lite] pendente lite, or alimony [being] amounts paid to children and former spouses[.], who are not part of this action; and
(ii) include in a party's monthly net income alimony pendente lite or alimony received from a former spouse that was not included in the party's gross income, as provided in subdivision (a).
Official Note: Since the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipient's monthly net income must also vary. For example, if the obligor is paying $1,000 per month in alimony for the express purpose of financing the obligee's college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance the obligee's general living expenses, inclusion of the alimony as income is appropriate.
* * * * * (e) Net Income Affecting Application of the Support Guidelines.
(1) [Low Income] Low-Income Cases.
[(A)] (i) If the obligor's monthly net income and corresponding number of children fall into the shaded area of the schedule set forth in Pa.R.C.P. No. 1910.16-3, the basic child support obligation shall be calculated initially by using the obligor's monthly net income only. For example, if the obligor has monthly net income of $1,100, the presumptive [amount of] support amount for three children is $110 per month. This amount is determined directly from the schedule in Pa.R.C.P. No. 1910.16-3. Next, [calculate] the obligor's child support obligation is calculated by using the parties' combined monthly net incomes and the appropriate formula in Pa.R.C.P. No. 1910.16-4. The lower of the two calculated amounts shall be the obligor's basic child support obligation.
* * * * * [(B)] (ii) In computing a basic spousal support or alimony pendente lite obligation, the presumptive [amount of] support amount shall not reduce the obligor's monthly net income below the Self-Support Reserve of $981 per month.
Example 2: If the obligor earns $1,000 per month and the obligee earns $300 per month, the formula in [Part IV of] Pa.R.C.P. No. [1910.16-4] 1910.16-4(a)(1)(Part B) would result in a support obligation of [$280] $213 per month [([$1,000 - $300 = $700 × 40%)] ($1,000 × 33%) or $333 minus ($300 × 40%) or $120 for a total of $213). Since this amount leaves the obligor with only [$720] $787 per month, it must be adjusted so that the obligor retains at least $981 per month. The presumptive minimum [amount of] spousal support amount, therefore, is $19 per month in this case.
[(C) When] (iii) If the obligor's monthly net income is $981 or less, the [court] trier-of-fact may award support only after consideration of the parties' actual financial resources and living expenses.
(2) [High Income] High-Income Cases. [When] If the parties' combined monthly net income exceeds $30,000 per month, [calculation of] child support, spousal support, and alimony [pendente lite] pendente lite calculations shall be pursuant to [Rule] Pa.R.C.P. No. 1910.16-3.1.
Official Note: See Hanrahan v. Bakker, 186 A.3d 958 (Pa. 2018)
(f) [Dependency Tax Exemption] Child Tax Credit. In order to maximize the total income available to the parties and children, the [court] trier-of-fact may[, as justice and fairness require, award the federal child dependency tax exemption] award, as appropriate, the federal child tax credit to the non-custodial parent, or to either parent in cases of equally shared custody, and order the other party to execute the waiver required by the Internal Revenue Code, 26 [U.S.C.A.] U.S.C. § 152(e). The tax consequences [resulting from an award of the child dependency exemption] associated with the federal child tax credit must be considered in calculating [each] the party's monthly net income available for support.
[Explanatory Comment—2010 Subdivision (a) addresses gross income for purposes of calculating the support obligation by reference to the statutory definition at 23 Pa.C.S.A. § 4322. Subdivision (b) provides for the treatment of public assistance, SSI benefits, Social Security derivative benefits and foster care payments.
Subdivision (c) sets forth the exclusive list of the deductions that may be taken from gross income in arriving at a party's net income. When the cost of health insurance premiums is treated as an additional expense subject to allocation between the parties under Rule 1910.16-6, it is not deductible from gross income. However, part or all of the cost of health insurance premiums may be deducted from the obligor's gross income pursuant to Rule 1910.16-6(b) in cases in which the obligor is paying the premiums and the obligee has no income or minimal income. Subdivision (c) relates to awards of spousal support or alimony pendente lite when there are multiple families. In these cases, a party's net income must be reduced to account for his or her child support obligations, as well as any pre-existing spousal support, alimony pendente lite or alimony obligations being paid to former spouses who are not the subject of the support action.
Subdivision (d) has been amended to clarify the distinction between voluntary and involuntary changes in income and the imputing of earning capacity. Statutory provisions at 23 Pa.C.S.A. § 4322, as well as case law, are clear that a support obligation is based upon the ability of a party to pay, and that the concept of an earning capacity is intended to reflect a realistic, rather than a theoretical, ability to pay support. Amendments to subdivision (d) are intended to clarify when imposition of an earning capacity is appropriate.
Subdivision (e) has been amended to reflect the updated schedule in Rule 1910.16-3 and the increase in the Self-Support Reserve (''SSR''). The schedule now applies to all cases in which the parties' combined net monthly income is $30,000 or less. The upper income limit of the prior schedule was only $20,000. The amount of support at each income level of the schedule also has changed, so the examples in Rule 1910.16-2 were revised to be consistent with the new support amounts.
The SSR is intended to assure that obligors with low incomes retain sufficient income to meet their basic needs and to maintain the incentive to continue employment. When the obligor's net monthly income or earning capacity falls into the shaded area of the schedule, the basic child support obligation can be derived directly from the schedule in Rule 1910.16-3. There is no need to use the formula in Rule 1910.16-4 to calculate the obligor's support obligation because the SSR keeps the amount of the obligation the same regardless of the obligee's income. The obligee's income may be a relevant factor, however, in determining whether to deviate from the basic guideline obligation pursuant to Rule 1910.16-5 and in considering whether to require the obligor to contribute to any additional expenses under Rule 1910.16-6.
Since the schedule in Rule 1910.16-3 sets forth basic child support only, subdivision (e)(1)(B) is necessary to reflect the operation of the SSR in spousal support and alimony pendente lite cases. It adjusts the basic guideline obligation, which would otherwise be calculated under the formula in Rule 1910.16-4, so that the obligor's income does not fall below the SSR amount in these cases.
Previously, the SSR required that the obligor retain at least $748 per month. The SSR now requires that the obligor retain income of at least $867 per month, an amount equal to the 2008 federal poverty level for one person. When the obligor's monthly net income is less than $867, subsection (e)(1)(C) provides that the court must consider the parties' actual living expenses before awarding support. The guidelines assume that at this income level the obligor is barely able to meet basic personal needs. In these cases, therefore, entry of a minimal order may be appropriate. In some cases, it may not be appropriate to order support at all.
The schedule at Rule 1910.16-3 sets forth the presumptive amount of basic child support to be awarded. If the circumstances warrant, the court may deviate from that amount under Rule 1910.16-5 and may also consider a party's contribution to additional expenses, which are typically added to the basic amount of support under Rule 1910.16-6. If, for example, the obligor earns only $900 per month but is living with his or her parents, or has remarried and is living with a fully-employed spouse, the court may consider an upward deviation under Rule 1910.16-5(b)(3) and/or may order the party to contribute to the additional expenses under Rule 1910.16-6. Consistent with the goals of the SSR, however, the court should ensure that the overall support obligation leaves the obligor with sufficient income to meet basic personal needs and to maintain the incentive to continue working so that support can be paid.
Subdivision (e) also has been amended to eliminate the application of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), in high income child support cases. In cases in which the parties' combined net monthly income exceeds $30,000, child support will be calculated in accordance with the three-step process in new rule 1910.16-3.1(a).
Explanatory Comment—2013 The SSR has been increased to $931, the 2012 federal poverty level for one person. Subdivision (e) has been amended to require that when the obligor's income falls into the shaded area of the basic child support schedule in Rule 1910.16-3, two calculations must be performed. One calculation uses only the obligor's income and the other is a regular calculation using both parties' incomes, awarding the lower amount to the obligee. The two step process is intended to address those cases in which the obligor has minimal income and the obligee's income is substantially greater.
Explanatory Comment—2015 The rule has been amended to provide that a party's support obligation will be reduced by the amount of a child's Social Security derivative benefit if that party's retirement or disability created the benefit and the benefit is being paid to the household in which the child primarily resides or the obligee in cases of equally shared custody. In most cases, payment of the benefit to the obligee's household will increase the resources available to the child and the parties. The rule is intended to encourage parties to direct that the child's benefits be paid to the obligee.]
Explanatory Comment—2010 Subdivision (a) addresses gross income for purposes of calculating the support obligation by reference to the statutory definition at 23 Pa.C.S. § 4322. Subdivision (b) provides for the treatment of public assistance, SSI benefits, Social Security derivative benefits, and foster care payments.
Subdivision (c) sets forth the exclusive list of the deductions that may be taken from gross income in arriving at a party's net income. When the cost of health insurance premiums is treated as an additional expense subject to allocation between the parties under Pa.R.C.P. No. 1910.16-6, it is not deductible from gross income. However, part or all of the cost of health insurance premiums may be deducted from the obligor's gross income pursuant to Pa.R.C.P. No. 1910.16-6(b) in cases in which the obligor is paying the premiums and the obligee has no income or minimal income. Subdivision (c) relates to spousal support or alimony pendente lite awards when there are multiple families. In these cases, a party's monthly net income must be reduced to account for his or her child support obligations, as well as any pre-existing spousal support, alimony pendente lite or alimony obligations being paid to former spouses who are not the subject of the support action.
Subdivision (d) has been amended to clarify the distinction between voluntary and involuntary changes in income and the imputing of earning capacity. Statutory provisions at 23 Pa.C.S. § 4322, as well as case law, are clear that a support obligation is based upon the ability of a party to pay, and that the concept of an earning capacity is intended to reflect a realistic, rather than a theoretical, ability to pay support. Amendments to subdivision (d) are intended to clarify when imposition of an earning capacity is appropriate.
Subdivision (e) has been amended to reflect the updated schedule in Pa.R.C.P. No. 1910.16-3 and the increase in the Self-Support Reserve (''SSR''). The schedule now applies to all cases in which the parties' combined monthly net income is $30,000 or less. The upper income limit of the prior schedule was only $20,000. The support amount at each income level of the schedule also has changed, so the examples in Pa.R.C.P. No. 1910.16-2 were revised to be consistent with the new support amounts.
The SSR is intended to assure that obligors with low incomes retain sufficient income to meet their basic needs and to maintain the incentive to continue employment. When the obligor's monthly net income or earning capacity falls into the shaded area of the schedule, the basic child support obligation can be derived directly from the schedule in Pa.R.C.P. No. 1910.16-3. There is no need to use the formula in Pa.R.C.P. No. 1910.16-4 to calculate the obligor's support obligation because the SSR keeps the amount of the obligation the same regardless of the obligee's income. The obligee's income may be a relevant factor, however, in determining whether to deviate from the basic guideline obligation pursuant to Pa.R.C.P. No. 1910.16-5 and in considering whether to require the obligor to contribute to any additional expenses under Pa.R.C.P. No. 1910.16-6.
Since the schedule in Pa.R.C.P. No. 1910.16-3 sets forth basic child support only, subdivision (e)(1)(ii) is necessary to reflect the operation of the SSR in spousal support and alimony pendente lite cases. It adjusts the basic guideline obligation, which would otherwise be calculated under the formula in Pa.R.C.P. No. 1910.16-4, so that the obligor's income does not fall below the SSR amount in these cases.
Previously, the SSR required that the obligor retain at least $748 per month. The SSR now requires that the obligor retain income of at least $867 per month, an amount equal to the 2008 federal poverty level for one person. When the obligor's monthly net income is less than $867, subdivision (e)(1)(iii) provides that the trier-of-fact must consider the parties' actual living expenses before awarding support. The guidelines assume that at this income level the obligor is barely able to meet basic personal needs. In these cases, therefore, entry of a minimal order may be appropriate. In some cases, it may not be appropriate to order support at all.
The schedule at Pa.R.C.P. No. 1910.16-3 sets forth the presumptive amount of basic child support to be awarded. If the circumstances warrant, the trier-of-fact may deviate from that amount under Pa.R.C.P. No. 1910.16-5 and may also consider a party's contribution to additional expenses, which are typically added to the basic amount of support under Pa.R.C.P. No. 1910.16-6. If, for example, the obligor earns only $900 per month but is living with his or her parents, or has remarried and is living with a fully-employed spouse, the trier-of-fact may consider an upward deviation under Pa.R.C.P. No. 1910.16-5(b)(3) or may order the party to contribute to the additional expenses under Pa.R.C.P. No. 1910.16-6. Consistent with the goals of the SSR, however, the trier-of-fact should ensure that the overall support obligation leaves the obligor with sufficient income to meet basic personal needs and to maintain the incentive to continue working so that support can be paid.
Subdivision (e) also has been amended to eliminate the application of Melzer v. Witsberger, 480 A.2d 991 (Pa. 1984), in high-income child support cases. In cases in which the parties' combined net monthly income exceeds $30,000, child support will be calculated in accordance with the three-step process in Pa.R.C.P. No. 1910.16-3.1(a).
Explanatory Comment—2013 The SSR has been increased to $931, the 2012 federal poverty level for one person. Subdivision (e) has been amended to require that when the obligor's income falls into the shaded area of the basic child support schedule in Pa.R.C.P. No. 1910.16-3, two calculations must be performed. One calculation uses only the obligor's income and the other is a regular calculation using both parties' incomes, awarding the lower amount to the obligee. The two-step process is intended to address those cases in which the obligor has minimal income and the obligee's income is substantially greater.
Explanatory Comment—2015 The rule has been amended to provide that a party's support obligation will be reduced by the child's Social Security derivative benefit amount if that party's retirement or disability created the benefit and the benefit is being paid to the household in which the child primarily resides or the obligee in cases of equally shared custody. In most cases, payment of the benefit to the obligee's household will increase the resources available to the child and the parties. The rule is intended to encourage parties to direct that the child's benefits be paid to the obligee.
Rule 1910.16-3. Support Guidelines. Basic Child Support Schedule.
The following schedule represents the amounts spent on children of intact families by combined monthly net income and number of children. Combined monthly net income is on the schedule's vertical axis [of the schedule] and the number of children is on the schedule's horizontal axis [of the schedule]. This schedule [is used to find] determines the basic child support obligation. Unless [otherwise provided in these rules] these rules provide otherwise, the obligor's share of the basic support obligation shall be computed using either the formula set forth in [Part I of] Pa.R.C.P. No. [1910.16-4] 1910.16-4(a)(1)(Part C) or (2)(Part I).
* * * * * Rule 1910.16-3.1. Support Guidelines. [High Income] High-Income Cases.
(a) Child Support Formula. If the parties' combined monthly net income exceeds $30,000, the following three-step process shall be applied to calculate the parties' respective child support obligations. The [amount of] support amount calculated pursuant to this three-step process shall not be less than the [amount of] support amount that would have been awarded if the parties' combined monthly net income was $30,000. The calculated amount [shall be] is the presumptive minimum [amount of] support amount.
(1) [First, the] The following formula shall be applied as a preliminary analysis in calculating the [amount of] basic child support [to be] amount apportioned between the parties according to their respective monthly net incomes:
One child: $2,839 + 8.6% of combined monthly net income above $30,000.
Two children: $3,902 + 11.8% of combined monthly net income above $30,000.
Three children: $4,365 + 12.9% of combined monthly net income above $30,000.
Four children: $4,824 + 14.6% of combined monthly net income above $30,000.
Five children: $5,306 + 16.1% of combined monthly net income above $30,000.
Six children: $5,768 + 17.5% of combined monthly net income above $30,000;
(2) [And second, the trier of fact] The trier-of-fact shall apply [Part II and Part III of the formula at Rule 1910.16-4(a), making any applicable adjustments] the formulas in Pa.R.C.P. No. 1910.16-4(a)(1)(Part D) and (Part E) or (2)(Part II) and (Part III), adjusting for substantial or shared custody pursuant to [Rule] Pa.R.C.P. No. 1910.16-4(c) and [allocations of] allocating additional expenses pursuant to [Rule] Pa.R.C.P. No. 1910.16-6, as appropriate;
(3) [Then, third, the trier of fact] The trier-of-fact shall consider the factors in [Rule] Pa.R.C.P. No. 1910.16-5 in making a final child support award and shall make findings of fact on the record or in writing. After considering [all of] the factors in [Rule] Pa.R.C.P. No. 1910.16-5, the [trier of fact] trier-of-fact may adjust the amount calculated pursuant to subdivisions (1) and (2) [above upward or downward], subject to the presumptive minimum.
(b) Spousal Support and Alimony Pendente Lite. In cases in which the parties' combined monthly net income exceeds $30,000, the [trier of fact] trier-of-fact shall apply the formula in [Part IV of Rule 1910.16-4(a)] either Pa.R.C.P. No. 1910.16-4(a)(1)(Part B) or (2)(Part IV) as a preliminary analysis in calculating spousal support or alimony [pendente lite] pendente lite. In determining [the amount and duration of] the final spousal support or alimony [pendente lite award] pendente lite amount and duration, the [trier of fact] trier-of-fact shall consider the factors in [Rule] Pa.R.C.P. No. 1910.16-5 and shall make findings of fact on the record or in writing.
[Explanatory Comment—2010 New Rule 1910.16-3.1 is intended to bring all child support cases under the guidelines and treat similarly situated parties similarly. Thus, high income child support cases no longer will be decided pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Economic data supports the amounts in the basic child support schedule up to combined net incomes of $30,000 per month. Above that amount, economic data are not readily available. Thus, for cases in which the parties' combined net monthly income is above $30,000, the formula first applies a fixed percentage to calculate the amount of support. The formula is an extrapolation of the available economic data to higher income cases. Spousal support and alimony pendente lite awards in high income cases are preliminarily calculated pursuant to the formula in Part IV of Rule 1910.16-4(a). However, in both high income child support and spousal support/alimony pendente lite cases, the trier of fact is required to consider the factors in Rule 1910.16-5 before entering a final order and to make findings of fact on the record or in writing. Pursuant to Rule 1910.11(c)(2), in all high income cases, the parties must submit an Income Statement and the Expense Statement at Rule 1910.27(c)(2)(B) to enable the trier of fact to consider the factors in Rule 1910.16-5.
Explanatory Comment—2011 The rule has been amended to clarify that the provisions of Rule 1910.16-4(c), regarding adjustments to support when the obligor has substantial or shared custody, apply in high income cases. Previously, when high income cases were decided pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), case law held that because the time and resources each parent provided to a child were factored into the Melzer formula, the reductions for substantial or shared parenting time did not apply to cases decided pursuant to Melzer. See, e.g., Sirio v. Sirio, 951 A.2d 1188 (Pa. Super. 2008), Bulgarelli v. Bulgarelli, 934 A.2d 107 (Pa. Super. 2007). As Melzer no longer applies to calculate support in high income cases, the prohibition against reductions for substantial or shared parenting time in such cases is no longer applicable.]
Explanatory Comment—2010 Pa.R.C.P. No. 1910.16-3.1 is intended to bring all child support cases under the guidelines and treat similarly situated parties similarly. Thus, high-income child support cases no longer will be decided pursuant to Melzer v. Witsberger, 480 A.2d 991 (Pa. 1984). Economic data support the basic child support schedule up to combined net incomes of $30,000 per month. Above that amount, economic data are not readily available. Thus, for cases in which the parties' combined monthly net income is above $30,000, the formula first applies a fixed percentage to calculate the support amount. The formula is an extrapolation of the available economic data to high-income cases. Spousal support and alimony pendente lite awards in high-income cases are preliminarily calculated pursuant to the formulas in either Pa.R.C.P. No. 1910.16-4(a)(1)(Part B) or (2)(Part IV). However, in both high-income child support and spousal support and high-income child support and alimony pendente lite cases, the trier-of-fact is required to consider the factors in Pa.R.C.P. No. 1910.16-5 before entering a final order and to make findings of fact on the record or in writing. Pursuant to Pa.R.C.P. No. 1910.11(c)(2), in all high-income cases, the parties must submit an Income Statement and the Expense Statement at Pa.R.C.P. No. 1910.27(c)(2)(B) to enable the trier-of-fact to consider the factors in Pa.R.C.P. No. 1910.16-5.
Explanatory Comment—2011 The rule has been amended to clarify that the provisions of Pa.R.C.P. No. 1910.16-4(c), regarding support adjustments if the obligor has substantial or shared custody, apply in high-income cases. Previously, when high-income cases were decided pursuant to Melzer v. Witsberger, 480 A.2d 991 (Pa. 1984), case law held that because the time and resources each parent provided to a child were factored into the Melzer formula, the substantial or shared parenting time reductions did not apply to cases decided pursuant to Melzer. See, e.g., Sirio v. Sirio, 951 A.2d 1188 (Pa. Super. 2008); Bulgarelli v. Bulgarelli, 934 A.2d 107 (Pa. Super. 2007). As Melzer no longer applies to calculate support in high-income cases, the prohibition against substantial or shared parenting time reductions in such cases is no longer applicable.
Rule 1910.16-4. Support Guidelines. Calculation of Support Obligation, Formula.
(a) The [following formula shall be used] trier-of-fact shall use either the subdivision (1) or subdivision (2) formula to calculate the obligor's share of basic child support, either from the schedule in [Rule] Pa.R.C.P. No. 1910.16-3 or the formula in [Rule] Pa.R.C.P. No. 1910.16-3.1(a), as well as spousal support and alimony [pendente lite] pendente lite obligations. In [high income] high-income cases, [Part IV shall be used] the trier-of-fact shall use either the subdivision (1)(Part B) or subdivision (2)(Part IV) formula, as appropriate, as a preliminary analysis in the calculation of spousal support or alimony [pendente lite] pendente lite obligations[:].
(1) The formula in Parts A through E is for an order entered on or after January 1, 2019, or for a modification of an order entered before January 1, 2019 that includes spousal support or alimony pendente lite in which the amendments to the Internal Revenue Code made by Section 11051 of the Tax Cuts and Jobs Act of 2017 (Pub.L. No. 115-97) expressly apply.
Official Note: Section 11051 of the Tax Cuts and Jobs Act of 2017 (Pub.L. No. 115-97) amended the Internal Revenue Code by repealing the alimony deduction—the amount of spousal support, alimony pendente lite, and alimony paid or received—from the payor's gross income and the alimony inclusion into the payee's gross income.
See subdivision (2) for a modification of an order entered before January 1, 2019 that includes spousal support or alimony pendente lite in which the amendments to the Internal Revenue Code made by Tax Cuts and Jobs Act of 2017 (Pub.L. No. 115-97) do not apply to the modification.
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