Judges Opinions, — April 27, 2022 9:01 — 0 Comments

Nicholas J. Blair, v. Dawn M. Fessler

JUDGE’S OPINION

Nicholas J. Blair, v. Dawn M. Fessler

 

Civil Action-Family Law-Support-Income-Bonus Income-Shared Physical Custody-Effect Upon Support-Discretion of the Court

 

The parties are parents of two (2) teenage daughters, the youngest over whom they share equal physical custody.  Nicholas J. Blair (“Father”) has primary physical custody of the older daughter with Dawn M. Fessler (“Mother”) enjoying physical custody of that child approximately one-third (1/3) of available overnights.  Father filed a Petition for Modification of an existing Order of support on the basis that he changed jobs.  Both parties filed Exceptions to the Order of Court adopting the Report and Recommendation of the Domestic Relations Master (“DRM”) with regard to support.

 

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

 

  1. The report of the DRM is advisory only, and the court is not bound by his conclusions.

 

  1. Pa.R.C.P. Rule 1910.16-2(a)(1) specifically defines that income for purposes of support includes wages, salaries, bonuses, fees and commissions.

 

  1. A bonus received by Mother in 2021 constitutes income for purposes of support even if there is no certainty that Mother will receive the bonus on a regular basis.

 

  1. Pa.R.C.P. Rule 1910.16-4 provides that thirty percent (30%) is a standard percentage of custody enjoyed by a noncustodial parent.

 

  1. Pa.R.C.P. Rule 1910.16-4(c)(1) provides that when a child spends forty percent (40%) or more of his or her time during the year with the obligor, a rebuttable presumption arises that the obligor is entitled to a reduction in the basic support amount to reflect this time.

 

  1. When an obligor enjoys between thirty (30) and forty percent (40%) of available time, the court has discretion in determining whether adjustment should be made to the Guideline recommended support amount.

 

  1. In light of the fact that the parties share equal physical custody of their youngest daughter, Mother earns only slightly more than Father and Father is responsible for supporting the older daughter two-thirds (2/3) of the available time, Father should receive child support from Mother with regard to the older daughter in an amount that is higher than that arrived at by equalizing the income of the parties.

 

L.C.C.C.P. No. 2008-50757, Opinion by Bradford H. Charles, Judge, August 31, 2021.

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

 

         NICHOLAS J. BLAIR                     :         NO. 2008-5-0757

Plaintiff                                        :         PACSES NO. 283117824

:

  1. :

DAWN M. FESSLER,                       :

Defendant                                                :

:

ORDER OF COURT

 

AND NOW, this 31st day of August, 2021, in accordance with the attached Opinion, and upon consideration of the exceptions filed by Nicholas J. Blair (hereafter FATHER) and Dawn M. Fessler (hereafter MOTHER), the Order of this Court is as follows:

  1. MOTHER is to pay to FATHER the sum of $400.00 per month to support their daughter Amber.
  2. MOTHER is to pay the sum of $0.00 to FATHER to support the parties’ daughter Hailey.
  3. FATHER is to provide medical insurance, dental insurance and vision insurance through his employment for both Amber and Hailey.
  4. Unreimbursed medical expenses for both daughters are to be divided as follows: 53% to MOTHER and 47% to FATHER.

Further details regarding this Order will be set forth below as follows:

AMOUNT/FREQUENCY  OBLIGATION TYPE                  BENEFICIARY

_$400.00 _/_month_              _ Child support _        Amber Blair

_$40.00_/_month_                  _Arrears_                      Amber Blair

_$0.00 _/_month_                  _Child Support _          Hailey Blair

_$0.00_/_month_                    _Arrears_                      Hailey Blair

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 31st 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:  _53_% by Defendant and _47_% by Plaintiff.

____Defendant _XX_ Plaintiff ____Neither party is to provide medical, dental and vision coverage for the children.

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.

Unreimbursed medical after spousal support:

 

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

Nicholas James Blair// 215 Shepherd Street, Jonestown PA 17038

Dawn Marie Fessler// 405 AWOL Road, Jonestown PA 17038

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

          17042

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

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

 

NICHOLAS J. BLAIR                               :         NO. 2008-5-0757

Plaintiff                                        :         PACSES NO. 283117824

:

  1. :

DAWN M. FESSLER,                                :

Defendant                                                :

:

APPEARANCES

 

Donna Brightbill, Esquire                              For Nicholas J. Blair

LONG BRIGHTBILL ATTORNEYS AT LAW

 

Colleen Gallo, Esquire                                     For Dawn M. Fessler

REILLY WOLFSON

 

OPINION BY CHARLES, J., August 31, 2021

 

Nicholas J. Blair (hereafter FATHER) and Dawn M. Fessler (hereafter MOTHER) are the parents of two teenage girls.  The parties equally share physical custody of their younger daughter.  FATHER has primary custody of the older daughter, but MOTHER enjoys custody on roughly one-third of available overnights.  Both MOTHER and FATHER have other children they are also required to support.

Child support has been an issue of contention between the parties for years.  In fact, the child support file now before us is almost one foot thick.  Although we cannot be sure, we strongly suspect that both MOTHER and FATHER have spent more in legal fees over the years than the support amounts over which they were fighting.  Today, we are confronted with exceptions filed by both parents with respect to the latest support ruling by a Domestic Relations Master (DRM).  For reasons that will follow, we will change the DRM’s decision…by $33.00 per month.

 

  1. FACTS

MOTHER and FATHER were married.  They apparently separated in or about 2008, because that is when the first child support request was received by this Court.  As best as we can determine, the parties’ child support situation has been reviewed on seven (7) separate occasions since the first Order was entered in 2008.

On January 29, 2020, a DRM entered a recommendation following a hearing.  The DRM determined that MOTHER and FATHER earned nearly identical income.  Because both parties equally shared custody of their youngest daughter, no support was recommended with respect to that daughter.  However, the DRM determined that FATHER enjoyed custody of his oldest daughter roughly two-thirds of available time.  Because of this, she recommended that MOTHER pay FATHER the sum of $122.21 per month in child support.  Neither party filed exceptions to this decision.

On January 20, 2021, FATHER filed a Petition for Modification.  FATHER alleged that his long-term job at Three Mile Island through Exelon was being phased out.[1]  Fortunately, FATHER did obtain employment at the Limerick Nuclear Power Plant.  However, FATHER’s anticipated income at Limerick will be less than what he had received at TMI.

The DRM determined that FATHER’s net income had declined from $5,658 per month to $5,044 per month in 2021.  In comparison, MOTHER’s income rose from $5,434 per month to $5,725 per month.  Based upon these changes, the DRM determined that MOTHER should pay $367.55 per month for the child who was primarily in FATHER’s custody.  Once again, the DRM did not award support for the child for whom the parties share 50-50 custody.

Both parties filed exceptions to the decision of the DRM.  Although FATHER’s exception was somewhat confusing, it appears as though he believes that MOTHER should be paying support for both children instead of just the one for whom FATHER enjoys primary custody.  MOTHER’s first exception also complains about the fact that the DRM’s recommendation said nothing about the child for whom the parties share custody;  MOTHER believes that something should be entered pertaining to health insurance and unreimbursed healthcare expenses with respect to this child.  In addition, MOTHER claims that the DRM erred in calculating her income.

We will address MOTHER’s income-related claim first.  Thereafter, we will address the parties’ custody-related exceptions together.

 

 

 

  1. 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

  1. MOTHER’s Income

We will begin our discussion by addressing MOTHER’s second exception pertaining to her income.  Because income provides a foundational predicate necessary for a discussion of how support will be entered given the parties’ unusual custody situation, we will begin by briefly dispensing with MOTHER’s exception pertaining to calculation of her income.

MOTHER’s second exception is that the DRM erred by including as income a $15,000 bonus she received from her employer in March of 2021.  In her brief, MOTHER characterizes this bonus as “discretionary”.  She complains, “It is unlikely that she will continue to receive such a substantial one in the future.”

If in fact MOTHER’s income decreased by $15,000 in 2022, she will be at liberty to file a Request for Modification.  However, Pennsylvania’s Support Statute clearly defines income as being “from any source”.  The Support Guidelines amplify this definition by specifically stating that income includes “wages, salaries, bonuses, fees and commissions…”  Pa.R.C.P. 1910.16-2(a)(1) (emphasis supplied).  This language, by itself, refutes MOTHER’s argument.  Like it or not, MOTHER’s bonus represents income available for support.  The DRM did not err by considering MOTHER’s bonus as such.

 

  1. Custody Issues

Under the Pennsylvania Support Guidelines, thirty percent (30%) is considered a “standard” percentage of custody for a non-custodial parent.  See, Pa.R.C.P. 1910.16-4.  The Support Rules also provide: “When the children spend forty percent or more of their time during the year with the obligor, a rebuttable presumption arises that the obligor is entitled to a reduction in the basic support obligation to reflect this time.”  Pa.R.C.P. 1910.16-4(c)(1).  Effectively, support adjustment is discouraged for a parent who enjoys less that 30% of custody time and encouraged for a parent who has custody more than 40% of available time. When an obligor enjoys physical custody between thirty percent (30%) and forty percent (40%) of available time, the Court has discretion in terms of whether or to what extent a child support order should be lowered.

In this case, MOTHER and FATHER equally share custody of their younger daughter.  The DRM determined that FATHER enjoys custody 66.58% of the time with respect to the parties’ older daughter.  These determinations are supported by the record.  They are also relatively easy to articulate.

What is far more difficult to discern is how the DRM used this custody information.  At several locations in her report, the DRM referenced an “adjustment for shared custody” of -$294.53 as it related to FATHER.  However, in her recap of how child support should be paid, the DRM did not mention this shared custody adjustment and instead deducted a “split custody counter-claim” amount of $400.11 from MOTHER’s obligation in order to arrive at a total monthly support amount of $367.55.  Try as we did, we could not intellectually apprehend exactly what the DRM did and how she justified it.

The Pennsylvania Support Rules include a lengthy section dealing with shared or substantial physical custody.  PA.R.C.P. 1910.16-4(d)(2) deals with “varied partial or shared custody schedules.”  That section reads:

 

“When the parties have more than one child and each child spends either (a) different amounts of partial or shared custody time with the party with the higher income or (b) different amounts of partial custody time with the party with the lower income, the Trier of Fact shall add the percentage of time each child spends with that party and divide by the number of children to determine the party’s percentage of custodial time.  If the average percentage of custodial time the children spend with the party is forty percent (40%) or more, the provisions of §(c) apply.”  Pa.R.C.P. 1910.16-4(d)(2).

 

As noted above, §(c) states: “When the children spend forty percent (40%) or more of their time during the year with the obligor, a rebuttable presumption arises that the obligor is entitled to a reduction in the basic support obligation to reflect this time.” Subsection (c) also includes the following language: “If the parties share custody equally and the support calculation results in the obligee receiving a larger share of the parties’ combined income, then the Court shall adjust the support obligation so that the combined monthly net income is allocated equally between the two households.”  If the above were not confusing enough, a note is included after §(d)(2) that states:

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

 

Sadly, the Support Guideline provisions applicable to a case like this are clear as mud.  Add to this the fact that the DRM employed a scheme that was almost indecipherable and this Court is left with very little guidance with respect to what should be accomplished and how.

In the end, we recognize that the Support Guidelines are just that – guidelines.  While guidelines are often helpful to promote uniformity, they are not immutable mandates.  Rather, the guidelines create a “rebuttable presumption” as to an amount of support that can be modified “if the Trier-of-Fact concludes in a written finding or states on the record that the Guideline Support amount is unjust or inappropriate.”  Pa.R.C.P. 1910.16-1(d).  In appropriate cases, this Court has in the past eschewed strict adherence to a mathematical formula.  For example, in Summerfield v. Summerfield, C.P.Leb.Co. No. 2010-5-0700 (June 7, 2011), we disregarded the Guideline amount “because we conclude that the DRM’s approach effectuates justice in a manner that blind allegiance to the Support Guidelines would not.”  Similarly, in Lehman v. Walmer, C.P.Leb.Co. No. 2008-5-0412 (September 12, 2012), we chose to prioritize the so-called “big picture” governing the parties instead of being captured in the so-called “weeds” of technical rules.

In this case, we recognize the following realities:

  • MOTHER and FATHER equally share custody of their younger daughter.
  • While FATHER has primary custody of the parties’ eldest child, MOTHER enjoys custody more than the 30% “standard” percentage below which no deviation should be considered.
  • The parties earn comparable income. In fact, if one adds together the total income received by both parties, MOTHER would be responsible for 53% and FATHER would be responsible for 47% of the total.

Based upon the above, we conclude that FATHER should receive child support from MOTHER.  MOTHER earns slightly more than FATHER and FATHER is responsible to support his oldest daughter roughly two-thirds of available time.  If we were to enter an Order that “equalized” the income available to the parties in accordance with Pa.R.C.P. 1910.16-4(c), we would be required to order that MOTHER pay to FATHER the sum of $340.51 per month.  However, mere equalization would not be appropriate because FATHER enjoys primary custody of the parties’ eldest daughter.  On the other hand, calculating support for that daughter without regard to the fact that MOTHER has substantial custody rights of her own would likewise be unfair.

Annualized, FATHER enjoys an average of ten more days of custody per month with his daughter than does MOTHER.  He deserves to be compensated by MOTHER for this reality.  A support award of $400.00 per month affords FATHER with $40.00 for every additional day of custody that he enjoys in excess of MOTHER.  Based on the totality of the record, we conclude that $40.00 per day is an appropriate and a fair amount, and we will implement it via a Court Order that will be entered simultaneous with this Opinion.

Before we conclude this section, we need to also address the fact that the DRM did not include anything in her recommendation regarding the parties’ younger daughter.  We suspect that this omission was unintentional because the last recommendation of the DRM dated January 29, 2020 specifically included a support award of $0.00 plus a requirement that FATHER provide medical, dental and vision care and that the child’s unreimbursed medical expenses be divided by the parents in accordance with their income percentages.  We will rectify the DRM’s oversight by including an identical provision in the Court Order we will enter today.

 

  1. CONCLUSION

We could not adopt the decision of the DRM because we did not fully understand it or the Guideline provisions upon which it was purportedly based.  That being said, we conclude that the DRM’s decision to award support of $367.55 per month largely effectuated economic justice for the parties.  We have chosen not to perpetrate a fiction that our decision is predicated upon the Guidelines, and we have concluded that slightly more money than recommended by the DRM is necessary given that MOTHER earns nearly $700.00 per month more than FATHER.  Still, we believe firmly that $40.00 per day for every day of extra custody enjoyed by FATHER is appropriate.  A lesser amount would depreciate the importance of the difference in the parties’ income and FATHER’s primary custody of his oldest daughter.  Any greater amount would unduly impact MOTHER’s ability to provide care for her daughters during the significant percentage of time they are with her.  Effectively, we have concluded that $400.00 per month represents an appropriate and fair “sweet spot” between the more extreme polarized positions proffered by both parents.

Our primary goal in this case was to effectuate economic justice for the parties and their daughters.  Rote adherence to confusing formulaic models would not have accomplished this.  This case is so unique that we have decided to dispense with the Child Support Guideline Formula in favor of an approach that will afford FATHER with the additional help he needs without financially tying the hands of MOTHER.  We know that FATHER would like to receive more in support and that MOTHER would like to pay less.  So be it.  The amount of our Order today will require some sacrifice on the part of MOTHER, just as it will require FATHER to budget his own resources perhaps a little more closely than he would like.  Nevertheless, we are convinced that the amount of support we have ordered today will enable both of the parties’ daughters to proceed through their high school years in a comfortable manner regardless of whether they are spending time with their mother or their father.  Nothing more, but certainly nothing less, could or should be expected from any child support award.

 

[1] This came as no surprise given that TMI has been shut down as an active power generation facility.

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