Judges Opinions, — April 20, 2022 10:19 — 0 Comments

Jennifer L. Felker, v. Christopher T. Felker

JUDGE’S OPINION

Civil Action-Family Law-Support-50/50 Shared Physical Custody Arrangement-Disability-Social Security Derivative Benefits-Due Process-Deviation-Unusual Expenses

The parties share equal physical custody of their four (4) children. Jennifer L. Felker (“Mother”) had been paying Christopher T. Felker (“Father”) a monthly support amount as directed by the Court. After Mother was awarded Social Security Disability benefits, Father arranged to be the sole beneficiary of over $34,000.00 in Social Security Disability derivative benefits received on behalf of the parties’ children based upon disability of Jennifer L. Felker (“Mother”). Mother filed a Petition for Modification of Support following her award of Social Security Disability benefits. In determining the Petition for Modification, the Domestic Relations Master (“DRM”) opened a separate docket requiring Father to pay Mother a monthly sum based upon his increased income that included the derivative benefits. Father filed Exceptions to the Order of Court adopting the Report and Recommendation of the DRM asserting that the DRM was without the authority to direct Father to pay Mother under a separate docket number because Mother had not requested such relief and the DRM erred by failing to deviate from the suggested Guideline support amount based upon Father’s payment of expenses of the children.

In reviewing a DRM’s report, the court must give fullest consideration to the credibility findings of the DRM, who was present to observe the demeanor of the witnesses and to hear their testimony.

The DRM’s report is advisory only, and the court is not bound by its conclusions.

Pa.R.C.P. Rule 1910.3(b) provides that the trier of fact should enter an appropriate order based upon the evidence presented without regard to the party who initiated the action.

Support decisions must follow the facts and not the specific arguments of the parties.

The DRM had the authority to enter the order she deemed appropriate given the facts presented regardless of whether the order matched a specific request articulated by the parties.

In the event that Father rejects the option afforded by the Court of paying Mother one-half (1/2) of the sum of the derivative benefits he received such that a recalculation of support can be undertaken as of the date Mother filed her Petition for Modification, the Court will uphold the recommendation of the DRM that created a separate docket requiring Father to pay Mother a monthly sum based upon his increased income including the derivative benefits.

The Pennsylvania Support Rules provide the court with discretion to deviate from the recommended Guideline support amount on the basis of unusual expenses.

Since Father has not established the payment of any expenses that can be deemed unusual, deviation from the Guideline suggested support amount is not warranted.

L.C.C.C.P. No. 2014-50056, Opinion by Bradford H. Charles, Judge, August 31, 2021.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

DOMESTIC RELATIONS SECTION

JENNIFER L. FELKER, :

Plaintiff : NO. 2014-5-0056 : PACSES NO. 510300826

CHRISTOPHER T. FELKER, :

Defendant :

ORDER OF COURT

AND NOW, this 31^st day of August, 2021, upon consideration of the exceptions filed by Christopher T. Felker, (hereafter FATHER), after de novo review of the file, and in accordance with the attached Opinion, the Order of this Court is as follows:

Within twenty (20) days from today’s date, FATHER is to decide whether he is willing to pay to Jennifer L. Felker (hereafter MOTHER) the sum of $17,356 in a lump sum. Written notice of FATHER’s decision is to be provided to the Lebanon County Domestic Relations Office and to MOTHER’s counsel.
If FATHER decides to pay the sum of $17,356 to MOTHER in a lump sum, said amount must be paid within forty-five (45) days from today’s date. Notice of payment is to be provided to this Court and to the Domestic Relations Office.
Upon verification of payment of $17,356, the Order of Court entered in the above-referenced docket will be vacated. All arrearages will be remitted. Effectively, the above-referenced docket will become a nullity.
In the event that FATHER does not agree to pay the sum of $17,356 to MOTHER, then all of FATHER’s exceptions will be denied and the Order of this Court will be identical to the recommendation set forth by the Domestic Relations Master as follows:

Effective June 8, 2018, the amount of support to be paid by the defendant is: The amount of support to be paid by Defendant is $789.52 per month for child support for Ryan Christopher Felker, Adam Corbin Felker, Kyle Robert Felker and Chloe Lynn Felker and $78.95 per month on arrears.

The amount to be paid for each dependent and obligation amount is allocated as follows:

AMOUNT/FREQUENCY OBLIGATION TYPE BENEFICIARY

_$197.38 _/_month_ _ Child support _ Ryan Christopher Felker

_$197.38 _/_month_ _ Child support _ Adam Corbin Felker

_$197.38 _/_month_ _ Child support _ Kyle Robert Felker

_$197.38 _/_month_ _ Child support _ Chloe Lynn Felker

_$19.73 _/_month_ _ Arrears _ Ryan Christopher Felker

_$19.74 _/_month_ _ Arrears _ Adam Corbin Felker

_$19.74 _/_month_ _ Arrears _ Kyle Robert Felker

_$19.74 _/_month_ _ Arrears _ Chloe Lynn Felker

Arrears are due in full IMMEDIATELY. All terms of this Order are subject to collection and/or enforcement by contempt proceedings, credit bureau reporting, tax refund offset certification, driver’s license revocation, and the freeze and seizure of financial assets. These enforcement/collection mechanisms will not be initiated so long as Obligor does not owe overdue support. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all the means listed above.

Un-reimbursed medical expenses of Obligee or children that exceed $250 annually shall be allocated between the parties. The party seeking allocation of the un-reimbursed medical expenses must provide documentation of the expenses to the other party no later than March 31^st of the following calendar year in which the final medical bill to be allocated was received. The un-reimbursed medical expenses are to be paid as follows: _61_% by Defendant and _39_% by Plaintiff.

__X__Defendant ___ Plaintiff ____Neither party is to provide medical coverage through employment.

IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

__ ___The defendant is ordered to cover the dependent(s) with health care coverage whenever it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of defendant’s net monthly income and does not exceed 50% of defendants net monthly income when added to the basic child support plus additional expenses,.

_____Health care coverage is currently not available at a reasonable cost to defendant. Therefore, plaintiff is ordered apply for/continue government-sponsored coverage, such as Children’s Health Insurance Program (CHIP). The cost of said coverage shall not exceed 5% of plaintiff’s net monthly income.

____Health care coverage is currently not available at a reasonable cost to defendant. Therefore, plaintiff is ordered to cover the dependent(s) with health care coverage if it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of plaintiff’s net income.

IT IS FURTHER ORDERED:

Within 30 days after the entry of this order, the party ordered to provide health care coverage shall provide written proof to the Lebanon County Domestic Relations Office and the other party that medical insurance has been obtained, including insurance cards and any other material necessary to utilize the coverage.

If Health Insurance is currently unavailable to the party/parties ordered to provide it, such proof shall be provided to Lebanon County Domestic Relations within 7 days of the date of this order.

If Health Insurance coverage is now available or becomes available to the party/parties ordered to provide it, the party/parties shall provide proof of the cost to Lebanon County Domestic Relations within 7 days of the date of availability.

D.____DEFENDANT____PLAINTIFF SHALL PAY THE FOLLOWING FEES:

FEE TOTAL FEE DESCRIPTION PAYMENT FREQUENCY

_$ / once_ JCS FEE _$_PER _once__

_____/______________________________PER _________

ADDITIONAL RECOMMENDATIONS:

___ ____All other provisions from the court order dated ___, not affected by this order, shall remain in full force and effect.

Effective September 1, 2019, the amount of support to be paid by the defendant is: The amount of support to be paid by Defendant is $596.40 per month for child support for Ryan Christopher Felker, Adam Corbin Felker, Kyle Robert Felker and Chloe Lynn Felker and $59.64 per month on arrears.

The amount to be paid for each dependent and obligation amount is allocated as follows:

AMOUNT/FREQUENCY OBLIGATION TYPE BENEFICIARY

_$149.10 _/_month_ _ Child support _ Ryan Christopher Felker

_$149.10 _/_month_ _ Child support _ Adam Corbin Felker

_$149.10 _/_month_ _ Child support _ Kyle Robert Felker

_$149.10 _/_month_ _ Child support _ Chloe Lynn Felker

_$14.91 _/_month_ _ Arrears _ Ryan Christopher Felker

_$14.91 _/_month_ _ Arrears _ Adam Corbin Felker

_$14.91 _/_month_ _ Arrears _ Kyle Robert Felker

_$14.91 _/_month_ _ Arrears _ Chloe Lynn Felker

__X__Defendant ___ Plaintiff ____Neither party is to provide medical coverage through employment.

IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

IT IS FURTHER ORDERED:

D.____DEFENDANT____PLAINTIFF SHALL PAY THE FOLLOWING FEES:

FEE TOTAL FEE DESCRIPTION PAYMENT FREQUENCY

_$ / once_ JCS FEE _$_PER _once__

_____/______________________________PER _________

ADDITIONAL RECOMMENDATIONS:

___ ____All other provisions from the court order dated ___, not affected by this order, shall remain in full force and effect.

Effective August 31, 2020, this Order is suspended and stayed as the income status of the parties has changed. See PACSES 782115116.

Effective January 1, 2021, the amount of support to be paid by the defendant is: The amount of support to be paid by Defendant is $647.60 per month for child support for Ryan Christopher Felker, Adam Corbin Felker, Kyle Robert Felker and Chloe Lynn Felker and $64.76 per month on arrears. The balance of the overpayment on PACSES 782115116 shall be added to the arrears due in this case and Defendant shall pay an additional $40.00 per month to repay the overpayment.

The amount to be paid for each dependent and obligation amount is allocated as follows:

AMOUNT/FREQUENCY OBLIGATION TYPE BENEFICIARY

_$161.90 _/_month_ _ Child support _ Ryan Christopher Felker

_$161.90 _/_month_ _ Child support _ Adam Corbin Felker

_$161.90 _/_month_ _ Child support _ Kyle Robert Felker

_$161.90 _/_month_ _ Child support _ Chloe Lynn Felker

_$26.19 _/_month__ Arrears & overpayment_ Ryan Christopher Felker

_$26.19 _/_month_ Arrears & overpayment_ Adam Corbin Felker

_$26.19 _/_month_ Arrears & overpayment_ Kyle Robert Felker

_$26.19 _/_month_ Arrears & overpayment_ Chloe Lynn Felker

__X__Defendant ___ Plaintiff ____Neither party is to provide medical coverage through employment.

IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

IT IS FURTHER ORDERED:

D.____DEFENDANT____PLAINTIFF SHALL PAY THE FOLLOWING FEES:

FEE TOTAL FEE DESCRIPTION PAYMENT FREQUENCY

_$ / once_ JCS FEE _$_PER _once__

_____/______________________________PER _________

ADDITIONAL RECOMMENDATIONS:

___ ____All other provisions from the court order dated ___, not affected by this order, shall remain in full force and effect.

Any money collected pursuant to this Order shall be paid by Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court. Said money to be turned over by the Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court.

Within thirty (30) days after the entry of this Order, the party or parties providing insurance shall submit to the person having custody of the child(ren) written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms.

Payments must be made by check or money order. All checks and money orders must be made payable to Pennsylvania State Collection & Disbursement Unit and mailed to P.O. Box 69110, Harrisburg, PA 17106-9110. Each payment must bear your social security number and member number in order to be processed.

IMPORTANT LEGAL NOTICE

PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING, BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN CONTEMPT OF COURT, AND MAY BE FINED OR IMPRISONED.

PENNSYLVANIA LAW PROVIDES THAT ALL SUPPORT ORDERS SHALL BE REVIEWED AT LEAST ONCE EVERY THREE (3) YEARS IF SUCH REVIEW IS REQUESTED BY ONE OF THE PARTIES. IF YOU WISH TO REQUEST A REVIEW AND ADJUSTMENT OF YOUR ORDER, YOU MUST DO THE FOLLOWING: CALL YOUR ATTORNEY. AN UNREPRESENTED PERSON WHO WANTS TO MODIFY (ADJUST) A SUPPORT ORDER SHOULD CONTACT THE DOMESTIC RELATIONS SECTION.

ALL CHARGING ORDERS FOR SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE, INCLUDING UNALLOCATED ORDERS FOR CHILD AND SPOUSAL SUPPORT OR CHILD SUPPORT AND ALIMONY PENDENTE LITE, SHALL TERMINATE UPON DEATH OF THE PAYEE.

A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO OR GREATER THAN ONE MONTH’S SUPPORT OBLIGATION AND (1) THE COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE ARRANGEMENT.

UNPAID ARREARS BALANCES MAY BE REPORTED TO CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID SUPPORT PAYMENT SHALL CONSTITUTE, BY OPERATRION OF LAW, A JUDGEMENT AGAINST YOU, AS WELL AS A LIEN AGAINST REAL PROPERTY.

IT IS FURTHER ORDERED that, upon payer’s failure to comply with this order, payer may be arrested and brought before the Court for a Contempt hearing; payer’s wages, salary, commissions, and/or income may be attached in accordance with law; this Order will be increased without further hearing by 10 % a month until all arrearages are paid in full. Defendant is responsible for court costs and fees.

BY THE COURT:

BRADFORD H. CHARLES

BHC/pmd

cc: Domestic Relations

Christopher Felker// 218 White Oak Circle, Lebanon PA 17042

Jennifer Felker// 2247 Nancy Lee Ave., Lebanon PA 17042

Colleen Gallo, Esq.// 1601 Cornwall Road, Lebanon PA 17042

Donna L. Brightbill, Esq.// 315 South Eighth Street, Lebanon, Pennsylvania

17042

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

DOMESTIC RELATIONS SECTION

CHRISTOPHER T. FELKER, :

Plaintiff : NO. 2014-5-0056 : PACSES NO. 782115116

JENNIFER L. FELKER, :

Defendant :

___________________________________________________________

JENNIFER L. FELKER, :

Plaintiff : NO. 2014-5-0056 : PACSES NO. 510300826

CHRISTOPHER T. FELKER, :

Defendant :

APPEARANCES

Colleen Gallo, Esquire For Christopher Felker

REILLY WOLFSON

Donna Brightbill, Esquire For Jennifer Felker

LONG BRIGHTBILL ATTORNEYS AT LAW

OPINION BY CHARLES, J., August 31, 2021

“Lex odit iniustitiam” is a Latin phrase that means “The law despises injustice.” In this case, Christopher T. Felker (hereafter FATHER) arranged to be the sole beneficiary of $34,712 in Social Security Disability derivative benefits owed to the parties’ children as a result of disabilities suffered by Jennifer L. Felker (hereafter MOTHER). Using a variety of technical legal arguments, FATHER argues for the following result:

That he be permitted to retain the entire $34,712 in derivative benefits;
That he be relieved from any obligation to render an accounting with respect to said funds;
That the existence of said funds should not be considered in any way by a court assessing child support.

A Domestic Relations Master (DRM) responded to FATHER’s requested injustice by opening a separate docket in which FATHER was required to pay MOTHER a monthly sum based upon his increased income that included the children’s Social Security derivative benefits.[1] While we understand the DRM’s decision, we are not completely comfortable with it.

In an ideal world, we would order FATHER to pay MOTHER one-half of the derivative disability benefit he intercepted. Then we would prospectively address the question of child support based upon the parties’ respective income. Unfortunately, we do not live in an ideal world. There may be no way for us to legally require payment of a lump sum Social Security derivative benefit. Effectively, our hands may be tied in a manner similar to how the DRM perceived that hers were. Therefore, we will use our so-called “bully pulpit” to incentivize FATHER to voluntarily divide the derivative benefit he intercepted. If we are unsuccessful in convincing FATHER to do what he should have done initially, then we will adopt the DRM’s admittedly less-than-ideal decision.

FACTS & PROCEDURAL BACKGROUND

MOTHER and FATHER are the parents of four children. A Court Order exists that divided custody equally on a 50-50 basis. A Custody Trial is pending. Neither MOTHER nor FATHER are known to have any other children.

Child support litigation has been pending in this case since 2015. We will dispense with a complete procedural history. However, at least some procedural background is necessary in order to provide context to the parties’ current arguments.

A lengthy hearing was conducted before a Domestic Relations Master (DRM) on February 15, 2018. In her report dated March 16, 2018, the DRM noted that MOTHER had worked as a Registered Nurse at Hershey Medical Center. However, MOTHER left that job due to medical problems that the DRM outlined in some detail. Based upon MOTHER’s receipt of a Worker’s Compensation settlement totaling $90,000 in July of 2016, the DRM required her to pay an average of about $800 per month for her four children between 2016 and January of 2018. However, the DRM suspended support in June due to MOTHER’s medical issues. The DRM ordered that a Review Hearing be conducted later in 2018.

On September 27, 2018, the DRM conducted a Review Hearing. She noted that MOTHER remained unemployed due to her medical issues. She also noted that a Social Security Disability claim had been filed. The DRM did impose an earning capacity upon MOTHER and awarded a total support obligation of $81.43 per month. However, the DRM also stated:

“Defendant [MOTHER] shall keep Plaintiff’s counsel and the Domestic Relations Office advised of the status of her application for Social Security Disability. The DRM reserves retroactive modification of the order in the event that Defendant’s SSD application is approved and she receives a lump-sum back benefit payment.”

Neither party filed exceptions to the October 2018 decision of the DRM.

On October 27, 2020, MOTHER filed a Motion to Modify Support. She alleged in her Petition that her sole source of income was Social Security Disability and that this was a lower amount than what the DRM had used to calculate support in 2018. Because no agreement could be reached, another hearing before a DRM was scheduled. This hearing was conducted on March 11, 2021. At the hearing, evidence was presented that MOTHER’s disability claim was honored by the Social Security Administration. A retroactive Social Security Disability benefit was paid to MOTHER. It was also determined that each of the parties’ children was owed a retroactive SSD derivative benefit of $8,678.

According to testimony presented to the DRM, FATHER somehow was able to intercept the SSD derivative benefits for his children totaling $34,712. MOTHER expressed outrage at this conduct; she argued that FATHER’s interception of her derivative benefits was improvident and unwarranted. In addition to requesting a payment to her of a lump sum, MOTHER asked the Court to direct FATHER to provide an accounting as to how the $34,712 in derivative benefits was spent. At a minimum, MOTHER asserted that the DRM must consider the $34,712 when calculating support.

Further complicating the situation was the fact that monthly derivative benefits for the children were paid to both parents at various points in time. This required the DRM to evaluate income differently during fluctuating periods of time.

Sorting through everything created a herculean challenge for the DRM. The DRM clearly empathized with MOTHER. The DRM rendered a Finding of Fact that FATHER’s interception of the derivative benefits was “unilateral”. Nevertheless, the DRM concluded that she lacked the authority to order FATHER to pay a lump sum amount to MOTHER or even provide an accounting with respect to the funds he received. Because it is so critical to the issue now before us, we will quote the entirely of the DRM’s analysis relating to MOTHER’s SSD benefits:

“Defendant filed a Petition to Modify on October 27, 2020 as Defendant began receiving Social Security Disability payments. Defendant applied for Social Security Disability on August 29, 2017 (it was her second application). She was approved on August 29, 2019 and began receiving payments in October 2019 for herself and derivative benefits for her 4 children. At the beginning of 2020, Plaintiff unilaterally contacted the Social Security office, stated that he had 50% custody of the children and changed the derivative payments so that he was the recipient. Additionally, he received a lump sum for retroactive derivative payments due to the children from April 2017 until August 2019 in the amount of $8,678.00 per child. Plaintiff did not have input regarding these changes. The plan going forward is for Plaintiff and Defendant to each receive the derivative payments for six months each year.

At the time of the hearing, Defendant was very frustrated and had numerous questions regarding the usage of the derivative payments collected by Plaintiff. At the end of the hearing, Defendant requested an accounting for the derivative payments received by the Plaintiff for the children. Both of these requests are beyond the scope of the child support proceeding. See Silver v. Pinskey, 981 A2d. 284, (2009). The Master understand Defendant’s frustration. The derivative benefits were paid to the children on behalf of the Defendant. The appropriate remedy is to recalculate the support order to include these payments made on behalf of the Defendant. The resulting order will be divided into a number of parts.

Plaintiff received a lump sum payment of $8,678.00 of each of the four children. This payment represents a derivative benefit of $289.26 per month per child for 30 months – April 2017 to August 2019. (Ex. 2). Also, Defendant’s Social Security Disability benefits during this time were $2,270.50 per month. (Ex. 2). The support order during this period of time needs to be recalculated in several steps based on prior findings regarding income. See Order of March 16, 2018. The derivative payments for each child increased to $2,340.60 in 2020. (ex. 3). It is noted that during the time period addressed by these calculations the parties had 50%-50% custody and that the Plaintiff maintained health insurance coverage at no cost through employment. Exhibit 2 contains statements of the payment of derivative benefits for Ryan Felker and Chloe Felker. No statements were provided for payments for Adam and Kyle. The monthly payee is consistent for both children with the exception of September and October 2020. For the present calculations, the party who received the monthly payment for Ryan and Chloe also be treated as receiving payment for Adam and Kyle for the same month. For the months of September and October 2020, Defendant received the payment for Chloe and Plaintiff received the payment for Ryan. For the present calculations, for the months of September and October 2020, Defendant and Plaintiff will each be credited with the payment for 2 children. Beginning January 2, 2021, the calculations will be based upon the testimony that each party will receive the payments for 4 children for 6 months per year.”

Even though the DRM adopted FATHER’s argument relating to lump sum redistribution and/or an accounting, the DRM concluded that it would be unjust to ignore the existence of the $34,712 in derivative benefits that were intercepted by FATHER. As a result, the DRM crafted a retroactive order that suspended support as of April 1, 2017, reinstated it in the amount of $364.17 in September of 2020 and then terminated support all together as of December 31, 2020.

In addition, the DRM effectively opened another child support docket in which MOTHER was listed as Plaintiff and FATHER was Defendant. The DRM apparently increased FATHER’s income in this docket based upon his receipt of disability derivative benefits for the children. Once again, the DRM determined that different amounts should be paid by FATHER to MOTHER at different points in time. However, this docket is currently charging at $647.60 per month and there have been arrearages accruing on this docket that are now slightly in excess of $20,000.

FATHER filed exceptions to the DRM’s decision[2]:

That the DRM erred by failing to consider that he had primary custody of the parties’ oldest child;
That the DRM erred by crafting a retroactive award in favor of MOTHER that governed periods of time during which MOTHER had not affirmatively sought to suspend child support; and
That the DRM failed to deviate from the Standard Support Guidelines because he pays all of the children’s extracurricular expenses and unreimbursed medical expenses.

With respect to FATHER’s second exception dealing with retroactivity, the Lebanon County Domestic Relations Office (DRO) filed an Amicus Curiae brief in support of the DRM’s decision. The DRO took no position with respect to FATHER’s other exceptions. MOTHER opposed all three of FATHER’s exceptions; she asked that the DRM’s decision be affirmed in all respects. We will address each issue seriatim.

SCOPE OF REVIEW

The Superior Court has provided guidance with respect to the scope of review we must employ. In reviewing a DRM’s report, we must give “fullest consideration” to the credibility findings of the DRM, who was present to observe the demeanor of witnesses and hear their testimony. Schuback v. Schuback, 603 A.2d 194, 196 (Pa. Super. 1992), citing Dukmen v. Dukmen, 420 A.2d 667, 670 (Pa. Super. 1980). A DRM’s report should not be lightly disregarded. Pasternak v. Pasternak, 204 A.2d 290, 291 (Pa. Super. 1964). However, the DRM’s report is only advisory, and we are not bound by its conclusions. Pasternak, supra at 291, citing Rankin v. Rankin, 124 A.2d 639, 641 (Pa. Super. 1956). Essentially, we must consider all of the evidence de novo and make an independent determination of the amount of support due and owing. Pasternak, supra at 291, citing Rankin, supra at 641.

III. DISCUSSION

Issues Pertaining to Custody

The DRM wrote in her report that the parties have enjoyed “50%-50% custody at all times covered by this Order…” (VI of DRM report). FATHER points out that the parties’ eldest child has spent more overnights with FATHER than with MOTHER since January of 2021. FATHER argues: “The Domestic Relations Master’s failure to offset or consider the custodial arrangement as it pertains to the parties’ oldest son was in error and in contradiction to Pa.R.C.P. 1910.16-4(d)(1)”.

The record regarding physical custody of the parties’ oldest son is not nearly as clear as FATHER would suggest. In fact, the lack of testimony about the parties’ custody pattern was striking. It is true that MOTHER acknowledged that the oldest son “recently” began spending “more” time with FATHER. (N.T. 16, 34). However, what was meant by “more” was never defined. In fact, FATHER also testified that he told the Social Security Administration that “We both share the children 50/50.” (N.T. 24).

Given that the Court Order currently in place awards equal shared custody to both parents, and based upon the paucity of information in the record to quantify anything different, we will not disturb the DRM’s decision to build her child support recommendation upon an equal shared custody foundation. In fact, given that only two sentences within a 46-page transcript even suggest something other than an equal shared custody arrangement, adopting FATHER’s argument would be nothing short of inviting a decision based upon speculation. Of course, if the pending custody proceeding results in a new order relating to any of the children, a prospective re-evaluation of support will have to be undertaken. For now, we will deny FATHER’s exception predicated upon custody.

Retroactivity

FATHER views the DRM’s support scheme as a violation of his right to due process of law. He suggests that the DRM effectively and retroactively initiated a support action against him on behalf of MOTHER and that he had neither notice nor an opportunity to be heard regarding this retroactive award. FATHER’s argument, while superficially appealing, conveniently overlooks the factual context of this case and the language of Pennsylvania’s Support Rules. As suggested by the DRO’s Amicus brief, FATHER seems to confuse the phrase “sua sponte” with “ultra vires.”

As it relates to the retroactivity component of the DRM’s decision, the DRM’s decision should not have come as a surprise to FATHER. In 2018, everyone involved in this case was aware of the following:

That MOTHER had filed a Social Security Disability claim;
That the claim had not been resolved;
That Social Security claims sometimes take years to be resolved; and
That if a Social Security award is granted, lump sum retroactive benefits will be paid.

Because of these realities, the DRM specifically stated in 2018 that she was reserving the question of retroactivity until a future date following a decision by the Social Security Administration regarding MOTHER’s claim.

The decision of the DRM in May of 2021 simply implemented the retroactivity reservation that had been put in place in 2018. Implementing that specifically articulated decisional pre-condition was not an error, Moreover, given that FATHER did not object in 2018 to the retroactivity reservation, he should now be estopped from complaining about the decision of the DRM to do precisely what was promised.

The second component of FATHER’s objection is that the DRM awarded support for a period of time during which MOTHER had not requested it. The DRO characterizes this type of decision as a “flip case”. According to both MOTHER and DRO, Courts and Masters are clearly authorized to enter any decision that works for the children and is supported by the evidence, even if the decision was not specifically requested by either party.

Pennsylvania’s Support Rules provide in very clear terms that support decisions must follow the facts and not the specific arguments of the parties. Pa.R.C.P. 1910.3(b) states: “The trier of facts shall enter an appropriate order based upon the evidence presented, without regard to which party initiated the support action…” (emphasis supplied). If the above language were not clear enough, the same rule later includes this language: “If supported by the evidence, the party named as the defendant in the initial pleading may be deemed to be the obligee, even if that party did not file a complaint for support…” Pa.R.C.P. 1910.3(b). The official comment to this Rule makes it clear that a trier of fact “may enter a Support Order against either party without regard to which party filed the Complaint or Petition for Modification…[This] enables the trier of fact to base the order on the facts and circumstances at the time of the proceeding, which may be different than at the time of filing.” Pa.R.C.P. 1910.3, explanatory comment.

Every support complaint is required to include a notice that implements the concept articulated in Rule 1910.3 above. Pa.R.C.P. 1910.27(b) requires that the following language be included: “If supported by the evidence, the party named as the defendant in the initial pleading may be deemed to be the obligee, even if that party did not file a complaint for support.” Pa.R.C.P. 1910.27(b). This language was included in the notice that accompanied MOTHER’s Petition for Modification.

Today is not the first time that this Court has encountered the argument proffered by FATHER. In fact, we have referred to what DRO characterizes as a “flip case” using a different euphemism – “be careful what you ask for!” In Fidler v. Derr, C.P.Leb.Co. No. 2000-5-0051 (January 31, 2011), this Court cited the above Rules of Civil Procedure and stated:

“Be careful what you ask for. In this case, [Father] filed a Motion for Modification seeking an increase in support…As a result of a hearing before a DRM, Mother’s support obligation was suspended. Unfortunately for Father, a Motion for Modification of Support triggers the availability of all remedial options possible under Pennsylvania’s Child Support law. Hence, a Motion to Modify Support downward could actually trigger an increase in support. Conversely, as occurred in this case, a Motion for Increase could trigger a decrease in support.”

As it relates to the scope of the DRM’s authority, we categorically reject FATHER’s arguments. The DRM had the authority based upon the 2018 reservation of retroactivity and the unique facts of this case to enter an order that retroactively contemplated MOTHER’s Social Security Disability award. Similarly, the DRM had the authority under the appropriate Support Rules to enter whatever order she deemed appropriate given the facts presented, regardless of whether that order matched a specific request articulated by a party.

The above being said, a passage written in FATHER’s brief resonated with this Court. That passage read:

“It can only be assumed that the Domestic Relations Master’s reason for instituting such an action was due to the fact that FATHER received the retroactive lump sum payments for each of the children since she did not provide an explanation as to her reasoning for initiating the action and support award in favor of Mother and against Father.

Assuming that is the justification for entering such an action and award, it appears it would be more appropriate to direct Father to provide Mother a portion of the children’s respective retroactive benefits as opposed to implementing a support order which will in effect continue well beyond the age when the children would reach majority.” (FATHER’s brief at page 9: emphasis supplied)

We tend to agree with FATHER’s counsel that the best and most fair way to resolve the dilemma created by the retroactive derivative disability award would be to divide the award equally between each of the parents who shared equal custody of the children. This would require FATHER to pay a little over $17,000 in a lump sum to MOTHER. With such a payment, the need for retroactive calculations of different support amounts would be obviated and MOTHER’s ongoing support entitlement could begin at the date on which she filed her Motion for Modification.

The DRM obviously believed that she lacked the authority to render a decision as articulated above. The DRM cited the case of Silver v. Pinskey, 981 A.2d 284 (Pa. Super. 2009). In Silver, the Dauphin County Court of Common Pleas was confronted with a situation similar to the one at bar. Using a “rough justice” approach, the Court directed that the monthly derivative disability payments paid on behalf of the children should be divided equally between parents. In contemplation of the fact that the Social Security benefits would be divided equally, the Court eschewed an independent support order. The Superior Court struck down the trial court’s “rough justice” scheme. The Superior Court reasoned that exclusive jurisdiction over Social Security Disability payments rests with Federal Courts. However, the Superior Court made clear that Dauphin County did not err by considering the existence of the derivative disability benefits. In fact, the Court remanded the case to the trial court for a determination of how a support order could be entered that properly contemplated the existence of the derivative benefits.

When we read the passage in MOTHER’s brief that is outlined above, we were tempted to invoke the doctrine of estoppel in order to “accept” FATHER’s apparent invitation to divide the $34,712 in retroactive derivative benefits using a lump sum distribution methodology. However, as we considered the Superior Court’s language in Silver, and after we read FATHER’s brief in its entirety, we concluded that it would not be appropriate for this Court to mandate a lump sum distribution.^[3]

With that being said, we also recognize that if FATHER voluntarily pays a lump sum of $17,356 to MOTHER, the parties’ financial situation would be different than what confronted the DRM. If in fact both parties equally share the retroactive derivative benefits paid for their children, then this Court could undertake a more traditional evaluation of child support that is prospective and based upon the parties’ ongoing monthly income.

Like FATHER’s counsel, this Court would prefer a lump sum distribution combined with a simpler guideline-based prospective evaluation of child support. However, implementation of the simpler approach is dependent upon FATHER. If FATHER refuses to part with one-half of the $34,712 in derivative benefits he received, then the approach used by the DRM becomes our only viable option to effectuate economic justice.

Effectively, our Order today will afford FATHER with a choice. Either he agrees to pay MOTHER the sum of $17,356 in return for a support obligation that is predicated upon the Support Guidelines effective on November 2, 2020 when MOTHER filed her Modification Petition, or he will have to live with the totality of the decision rendered by the DRM. Under no circumstances will we adopt the approach suggested by FATHER.

Deviation

The Pennsylvania Support Rules provide courts and DRMs with broad discretion to deviate from the mathematical formula set forth in the Support Guidelines themselves. One of the reasons justifying deviation is “unusual” expenses. In the past, this Court has declared that when a parent has his/her living expenses completely subsidized by other family members, that creates an “unusually low” expense that can justify deviation. See, e.g. Haag v. Haag, C.P.Leb.Co. No. 2016-5-0146 (August 11, 2016). On the other hand, if a parent is required to travel great distances at great expense to facilitate physical custody with his/her child, that is an expense that is “unusually high” so as to warrant deviation. See, e.g. Richards v. Richards, C.P.Leb.Co. No. 2006-5-0322 (June 7, 2016).

Never has this Court embarked upon a deviation analysis based exclusively upon unquantified routine expenses. At least as of this point in time, this Court has not encountered a situation where one parent’s payment of extracurricular activity expenses rises to the level of requiring deviation. As it relates to medical expenses, we have and would consider deviation, but only if or when a party pays unusually high amounts for a verified medical, dental or psychological condition that is unusual and expensive.

The problem for FATHER is that he has not specifically identified what we would classify as “unusual” expenses. His only effort to quantify these expenses was a document he prepared that was admitted as Exhibit 8. According to Exhibit 8, FATHER paid $1,240.24 in direct expenses pertaining to his children between January of 2020 and March of 2021. Nothing about any of the expenses paid by FATHER strikes us as “unusual”. Simply stated, the bar for initiating a deviation analysis based upon purported expenses has not been cleared by FATHER based upon the record that now exists.

CONCLUSION

This was a difficult case for the DRM to analyze. Had FATHER simply done the right thing by equally dividing the lump sum derivative disability payment, this case would have been infinitely simplified. To the extent that FATHER now complains about the DRM’s non-traditional approach to the situation confronting her, we direct FATHER to look in a proverbial mirror to identify the reason for the need – and we do consider it to be a need – for such a non-traditional approach.

We will end this Opinion as we began it. The result that FATHER obviously seeks is patently unfair. This Court cannot and will not sit idly by and endorse self-help to the tune of $34,712. We cannot and will not ignore the fact that FATHER received $34,712 that was intercepted and placed in a personal bank account despite the fact that the funds were earmarked by the government to benefit the children. One way or another, the $34,712 that FATHER intercepted must be factored into our decision regarding child support. The decision we have rendered today reflects this reality.

[1] Implementing the DRM’s approach on an on-going basis could have the effect of requiring FATHER to pay to MOTHER more than one-half of the lump sum derivative benefits he received.

[2] Actually, FATHER filed identical exceptions to two different dockets. One was designated as PACSES #782115116 and the other was designated PACSES # 510300826. Because the issues were identical in both dockets, we will address everything together.

[3] We conclude that it would be risky to mandate a lump sum distribution in light of the language used by the Superior Court in Silver.

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Judges Opinions, — April 20, 2022 10:19 — 0 Comments

Jennifer L. Felker, v. Christopher T. Felker

ORDER OF COURT

APPEARANCES

OPINION BY CHARLES, J., August 31, 2021

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