THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[ 231 PA. CODE CH. 1910 ]
Proposed Amendment of Pa.R.C.P. Nos. 1910.16-4 and 1910.16-6
[48 Pa.B. 4214]
[Saturday, July 21, 2018]The Domestic Relations Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania amendments to Pa.R.C.P. Nos. 1910.16-4 and 1910.16-6 for the reasons set forth in the accompanying publication 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 and underlined; 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.usAll communications in reference to the proposal should be received by November 2, 2018. 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 CommitteeWALTER J. McHUGH, 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.
(a) The following formula shall be used to calculate the obligor's share of basic child support, either from the schedule in Rule 1910.16-3 or the formula in Rule 1910.16-3.1(a), as well as spousal support and alimony pendente lite obligations. In high income cases, Part IV shall be used as a preliminary analysis in the calculation of spousal support or alimony pendente lite obligations:
* * * * * PART IV. SPOUSAL SUPPORT OR APL
With Dependent Children
* * * * *
18. Less Obligor's [Total] Adjusted Monthly Child Support Obligation Without Part II Substantial or Shared Custody Adjustment (Obligor's line 10 [plus line 12f]) ( ) * * * * * Rule 1910.16-6. Support Guidelines. Adjustments to the Basic Support Obligation. Allocation of Additional Expenses.
The [trier of fact] court may allocate between the parties the additional expenses identified in subdivisions (a)—(e). [If] However, if under the facts of the case an order for basic support is not appropriate, the [trier of fact] court may allocate between the parties the additional expenses. Except as set forth in subdivisions (b)(4) and (e), when allocating the expenses in this rule, the court shall calculate the party's proportionate share of the expenses after adjusting the party's monthly net income by the monthly support amount received or paid and then dividing each party's adjusted monthly net income by the parties' combined monthly net income.
(a) Child care expenses. [Reasonable] The court shall allocate reasonable child care expenses paid by the parties, if necessary to maintain employment or appropriate education in pursuit of income[, shall be allocated between the parties in proportion to their monthly net incomes]. The court may order that the obligor's share of the expense is added to his or her basic support obligation, paid directly to the service provider, or paid directly to the obligee. When a party is receiving a child care subsidy through the Department of Human Services, the [expenses to be] expense allocated between the parties [shall be] is the amount actually paid by the party receiving the subsidy.
Example. Mother has primary custody of the parties' two children and Father has partial custody. Mother's monthly net income is $2,000 and Father's is $3,500. At their combined income level of $5,500, the basic monthly child support from the schedule in Pa.R.C.P. No. 1910.16-3 is $1,463 for two children. As Father's income is 64% of the parties' combined income, his share is $936. Mother incurs child care expenses of $400 per month and Father incurs $100 of such expenses each month. The total amount of child care expenses, $500, will be apportioned between the parties[, with Father paying 64%, or $320] after adjusting the parties' respective monthly net incomes by the child support amount paid by Father and received by Mother. For purposes of apportioning the total child care expenses, Father's adjusted monthly net income is $2,564 ($3,500 - $936) and Mother's adjusted monthly net income is $2,936 ($2,000 + $936). Father will pay 47%, or $235 of the total child care expenses. As he is already paying $100 for child care while the children are in his partial custody, he would pay the remaining[$220] $135 to Mother for a total child support obligation of [$1,156] $1,071 ($936 + [$220 = $1,156] $135 = $1,071).
* * * * * (b) Health Insurance Premiums.
[(1) A party's payment of a premium to provide health insurance coverage on behalf of the other party and/or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it, as long as a statutory duty of support is owed to the party. If there is no statutory duty of support owed to the party who is paying the premium, the portion attributable to that person must be deducted from the premium as set forth in subdivision (2) below. If, prior to the entry of a divorce decree, a party's policy covers that party, a child, and a spouse and the spouse has separate additional coverage not needed to cover the child and/or the other party, the cost of the spouse's insurance premium shall not be allocated between the parties. If, prior to the entry of a divorce decree, a party provides coverage for that party and a child, but not the spouse, and the spouse has separate coverage, both parties' premiums shall be allocated between the parties in proportion to their net incomes. If, prior to the entry of a divorce decree, each spouse has his or her own health insurance that does not cover the other party, and there are no children subject to the order, the cost of both parties' premiums shall be allocated between the parties in proportion to their net incomes. If health insurance coverage for a child who is the subject of the support proceeding is being provided and paid for by a third party resident of either party's household, the cost shall be allocated between the parties in proportion to their net incomes. If the obligor is paying the premium, then the obligee's share is deducted from the obligor's basic support obligation. If the obligee is paying the premium, then the obligor's share is added to his or her basic support obligation. Employer-paid premiums are not subject to allocation.
(2) When the health insurance covers a party to whom no statutory duty of support is owed, even if that person is paying the premium as set forth in subdivision (1) above, or other persons who are not parties to the support action or children who are not the subjects of the support action, the portion of the premium attributable to them must be excluded from allocation. In the event that evidence as to this portion is not submitted by either party, it shall be calculated as follows. First, determine the cost per person by dividing the total cost of the premium by the number of persons covered under the policy. Second, multiply the cost per person by the number of persons who are not owed a statutory duty of support, or are not parties to, or the subject of the support action. The resulting amount is excluded from allocation.
(2.1) The actual incremental amount of the premium which provides coverage for the subjects of the support order, if submitted by either party, shall be used in determining the amount of the premium to be allocated between the parties. If not submitted by either party, then the amount of the premium shall be divided by the number of persons covered to calculate the portion of the premium that provides coverage to each person.]
(1) The court shall allocate between the parties the health insurance premiums paid by the parties, including the portion of the premium attributable to the party paying the premium, provided that a statutory duty of support is owed to the parties or child covered by the health insurance. If the party paying the health insurance premium is the obligor, then the obligee's share is deducted from the obligor's basic support obligation, and if the obligee is paying the health insurance premium, then the obligor's share is added to his or her basic support obligation. An allocation of health insurance premiums between the parties shall also include health insurance that is provided and paid by a third-party resident of either party's household (e.g., step-parent) for a child who is the subject of the support order.
(2) The court shall not allocate employer-paid premiums or premiums paid for a party, person, or child to whom no statutory duty of support is owed. If the parties present evidence of the actual amount of the excluded premium attributable to that party, person, or child, the court shall deduct from the total premium the actual amount excluded before allocation of the health insurance premium between the parties. If the parties do not submit evidence as to the actual amount of the excluded premium, the court shall calculate the excluded amount as follows:
(i) determine the premium's cost per person by dividing the total premium by the number of persons covered under the policy;
(ii) multiply the cost per person by the number of persons who are not owed a statutory duty of support, or are not parties to, or the subject of the support action; and
(iii) the resulting amount is excluded from allocation.
Example 1. If the parties are separated, but not divorced, and Husband pays $200 per month toward the cost of a health insurance policy provided through his employer which covers himself, Wife, the parties' child, and two additional children from a previous marriage, the portion of the premium attributable to the additional two children, if not otherwise verifiable or known with reasonable ease and certainty, is calculated by dividing $200 by five persons and then multiplying the resulting amount of $40 per person by the two additional children, for a total of $80 to be excluded from allocation. Deduct this amount from the total cost of the premium to arrive at the portion of the premium to be allocated between the parties—$120. Since Husband is paying the premium, and spouses have a statutory duty to support one another pursuant to 23 Pa.C.S. § 4321, Wife's percentage share of the $120 is deducted from Husband's support obligation. If Wife had been providing the coverage, then Husband's percentage share would be added to his basic support obligation.
Example 2. If the parties are divorced and Father pays $200 per month toward the cost of a health insurance policy provided through his employer which covers himself, the parties' child and two additional children from a previous marriage, the portion of the premium attributable to Father and the two additional children will not be allocated between the parties. Thus, using the same calculations in Example 1, the amount of the premium attributable to Father and the two other children is $150 ($200 premium divided among four covered persons equals $50 per person multiplied by three) and that amount is deducted from the total cost of the premium, leaving $50 ($200 - $150 = $50) to be allocated between the parties.
Example 3. The parties are divorced and Mother is the obligee of a child support order. Father, the obligor, pays $200 per month toward the cost of a health insurance policy provided by his employer that covers himself and the parties' child. Mother pays $400 per month for her employer-sponsored health insurance that covers only herself. The amount of the premium Father pays to cover the parties' child, $100 ($200 premium divided between two covered persons, Father and the child), will be allocated between the parties in proportion to their respective adjusted monthly net incomes. The portion of the premium that covers Father will not be allocated because the parties are no longer married and he is not owed a duty of support by Mother. The premium Mother pays to provide her own coverage will not be allocated because the parties are no longer married and she is not owed a duty of support by Father.
* * * * * (c) Unreimbursed Medical Expenses. [Unreimbursed] The court shall allocate unreimbursed medical expenses of the obligee or the children [shall be allocated between the parties in proportion to their respective net incomes] between the parties. [Notwithstanding the prior sentence, there shall be no apportionment of] However, the court shall not allocate unreimbursed medical expenses incurred by a party who is not owed a statutory duty of support by the other party. [The court may direct that the obligor's share be added to his or her basic support obligation, or paid directly to the obligee or to the health care provider.] The court may order that the obligor's share of the expense is added to his or her basic support obligation, paid directly to the health care provider, or paid directly to the obligee.
* * * * * (4) If the trier of fact determines that out-of-network medical expenses were not obtained due to medical emergency or other compelling factors, the court may decline to assess any of such expenses against the other party.
[(5) In cases involving only spousal support or alimony pendente lite, the parties' respective net incomes for purposes of allocating unreimbursed medical expenses shall be calculated after the amount of spousal support or alimony pendente lite is deducted from the obligor's income and added to the obligee's income.]
Official Note: If the trier of fact determines that the obligee acted reasonably in obtaining services which were not specifically set forth in the order of support, payment for such services may be ordered retroactively.
(d) Private School Tuition. Summer Camp. Other Needs. Expenditures for needs outside the scope of typical child-rearing expenses, e.g., private school tuition, summer camps, have not been factored into the Basic Child Support Schedule.
(1) If a party incurs an expense for a need not factored into the Basic Child Support Schedule and the court determines the need and expense are reasonable, the court shall allocate the expense between the parties [in proportion to the parties' monthly net incomes]. The court may order that the obligor's share of the expense is added to his or her basic support obligation, paid directly to the service provider, or paid directly to the obligee.
* * * * *
PUBLICATION REPORT
Recommendation 171 The Domestic Relations Procedural Rules Committee (Committee) is planning to propose to the Supreme Court of Pennsylvania amendments to Pa.R.C.P. Nos. 1910.16-4 and 1910.16-6 as those rules relate to the apportionment of expenses in support actions, including alimony pendente lite (APL). Specifically, the proposed amendments provide for an adjustment to the parties' monthly net incomes prior to determining the percentage each party pays toward the expenses set forth in Pa.R.C.P. No. 1910.16-6. The Committee proposes that the parties' monthly net incomes should be adjusted, upward or downward, by the total child or spousal support/APL amount paid or received by that party prior to apportioning those expenses.
Currently, the Rules of Civil Procedure apportion the enumerated expenses in Pa.R.C.P. No. 1910.16-6(a)—(d), with the exception of (c)(5), between the parties based on the parties' respective monthly net incomes as calculated pursuant to Pa.R.C.P. No. 1910.16-2. This apportionment does not consider the amount of support paid by the obligor or received by the obligee. The Committee believes the current methodology for apportioning those expenses ignores the economic realities of the parties' circumstances.
Instead, the Committee believes a more appropriate and equitable methodology is adjusting the parties' monthly net incomes prior to the apportionment by subtracting the total amount of support paid from the obligor's monthly net income and adding the total amount of support received to the obligee's monthly net income. This methodology is not new to the Rules of Civil Procedure. In Pa.R.C.P. No. 1910.16-6(c)(5), the parties' monthly net incomes in spousal support/APL-only cases are similarly adjusted prior to the apportionment of unreimbursed medical expenses. Likewise, Pa.R.C.P. No. 1910.16-6(e) considers the parties' monthly net income after the receipt or payment of the total support obligation for purposes of determining a mortgage deviation. The Committee's proposed amendments would utilize this methodology for all support cases (child support, spousal support, APL) and for all of the Pa.R.C.P. No. 1910.16-6 expenses. As a result, the Recommendation proposes rescinding Pa.R.C.P. No. 1910.16-6(c)(5) since that subdivision would be redundant if the amendments are adopted by the Supreme Court.
Finally, the Committee proposes consolidating Pa.R.C.P. No. 1910.16-6(b)(1), (2), and (2.1), revising the Example in Pa.R.C.P. No. 1910.16-6(a) to correspond with proposed apportionment methodology, and other stylistic changes.
[Pa.B. Doc. No. 18-1102. Filed for public inspection July 20, 2018, 9:00 a.m.]
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