Judges Opinions, — December 19, 2023 14:33 — 0 Comments

Annelle Buffenmeyer, v. Mitchell Buffenmeyer

Annelle Buffenmeyer, v. Mitchell Buffenmeyer

 

Civil Action-Family Law-Child Support-Exceptions-Child Tax Credit-Income-Earning Capacity-Overtime-Voluntary Reduction-Upward Deviation-Lack of Contact with Child-Private School Tuition-Counseling Expense-Rental Property Income

 

Plaintiff (“Mother”) filed Exceptions to the Report and Recommendation of the Domestic Relations Master (“DRM”) adopted by the Court regarding support for the parties’ two (2) children with special needs.  Mother argued that the DRM erred or abused her discretion by failing to decrease the Child Tax Credit consistent with actions of the Internal Revenue Service, calculating Defendant’s (“Father’s”) income by failing to hold Father to more overtime hours when he intentionally reduced his overtime hours, failing to increase Father’s support amount when he is not exercising custody of one (1) child, failing to include the cost of private schooling and counseling by a provider not accepting Father’s insurance in the support award and failing to include income generated by rental properties owned by Father as income for purposes of support.

 

  1. If either or both parents have applied for the Child Tax Credit, the DRM is at liberty to decide which parent should be entitled to receive the benefit with the standard default paradigm being that the custodial parent will enjoy the Child Tax Credit benefit.

 

  1. The DRM did not abuse her discretion or err in finding Mother entitled to the Child Tax Credit, as the DRM assessed the facts and circumstances surrounding the financial and custodial situation in determining Mother’s entitlement to the credit and Mother is the primary custodian of the children.

 

  1. Since the Internal Revenue Service determined that the Child Tax Credit amount for 2022 changed from when the DRM calculated the parties’ support amount, the updated amount for 2022 will be taken into account in the support award.

 

  1. The general rule is that support should be based upon actual earnings.

 

  1. When a party voluntarily refuses to work or reduces his or her income for purposes of paying less support, imposition of an earning capacity may be appropriate.

 

  1. Since the record reflects that Father has worked at a well paying job throughout the litigation and never willfully has refused to work, imputing an earning capacity to Father would not be appropriate.

 

  1. A trial court has complete discretion to decide whether to grant an upward deviation in cases in which an obligor has little or no contact with the children.

 

  1. An upward deviation is not supported where Father’s support amount will be higher than the Guideline amount due to payment of private school expenses and Father is paying Mother spousal support in addition to child support.

 

  1. Pa.R.C.P. Rule 1910.16-6(d) notes that expenditures for needs outside of the scope of typical child-rearing expenses such as private school tuition have not been factored into the Guideline support amount.

 

  1. If private school tuition is found to a reasonable need of a child, a support award may be adjusted so that each parent provides a reasonable share of the tuition.

 

  1. A private school education may be a reasonable need if it is demonstrated that the child will benefit from such and private schooling is consistent with the family’s standard of living and life station prior to separation.

 

  1. Where the record establishes that the child materially has benefitted from attending private school and private schooling is consistent with the family’s standard of living prior to separation, the DRM erred by failing to require Father to contribute to the cost of private schooling as part of the support award.

 

  1. A court may require parents to pay a designated percentage of reasonable and necessary healthcare expenses for their children that are not covered by insurance, which proportionally shall be allocated between the parties.

 

  1. Since Father has good health insurance coverage and Mother failed to detail efforts to find a counselor accepting Father’s health insurance coverage, the DRM committed no error in failing to direct Father to pay for counseling expenses of the child by a provider not accepting Father’s health insurance coverage.

 

  1. Generally, all sources of income of a party are to be considered when determining income available for support.

 

  1. The value of an asset awarded in equitable distribution may not be included in an individual’s income for purposes of calculating support payments.

 

  1. Since equitable distribution proceedings are ongoing and no definitive decision has been rendered regarding apartments owned by Father, no error was made in failing to include income associated with the rental properties in determining Father’s net monthly income for purposes of support.

 

L.C.C.C.P. No. 2019-50745, Opinion by Bradford H. Charles, Judge, December 5, 2022.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

DOMESTIC RELATIONS SECTION

ANNELLE BUFFENMEYER,

Plaintiff

v.

MITCHELL BUFFENMEYER,

Defendant

  1. 2019-5-0745

PACSES NO. 422117860

ORDER OF COURT

AND NOW, this 5th day of December, 2022, in accordance with the

attached Opinion, and upon consideration of the exceptions filed by Annelle

Buffenmeyer (hereafter, “MOTHER”) the Order of this Court is as follows:

  1. MOTHER’s exception requiring FATHER to pay a proportional share

of Levi’s private school tuition is granted. FATHER is required to pay

71.2% of the yearly tuition cost for L.B. to attend New Covenant

Christian School.

  1. MOTHER’s exception requesting that a two-tiered Order be

effectuated to reflect the Child Tax Credit’s amount returning to

$2,000 per child is granted.

  1. All other exceptions filed by MOTHER are denied.

This Order shall be effective in two tiers: (1) From July 15, 2021 through

December 31, 2021; (2) From January 1, 2022.

  1. From July 15, 2021 to December 31, 2021, $1,203.08 per month for

spousal support for Annelle Buffenmeyer plus $120.31 in arrears;

$570.75 per month for child support for Levi Buffenmeyer plus $57.07

in arrears; and $570.75 per month in child support for Theodore

Buffenmeyer plus $57.08 in arrears.

  1. From January 1, 2022, $1,268.08 per month for spousal support for

Annelle Buffenmeyer plus $126.81 in arrears; $641.21 per month for

child support for Levi Buffenmeyer plus $64.12 in arrears; and

$641.21 per month in child support for Theodore Buffenmeyer plus

$64.12 in arrears.

07/15/21- 12/31/21

AMOUNT/FREQUENCY

_$1,203.08 _/_month_

$120.31_/_month

$570.75 _/_month

$57.07 _/_month

$570.75 _/_month

$57. 08_/ month

01/01/22 and forward

AMOUNT/FREQUENCY

_$1 ,268.08_/_month_

OBLIGATION TYPE BENEFICIARY

_Spousal Support_ Annelle Buffenmeyer

Arrears Annelle Buffenmeyer

_Child Support_ Levi Buffenmeyer

Arrears Levi Buffenmeyer

_Child Support_ Theodore Buffenmeyer

Arrears Theodore Buffenmeyer

OBLIGATION TYPE BENEFICIARY

_Spousal Support_ Annelle Buffenmeyer

$126.81 _/_month Arrears Annelle Buffenmeyer

$641.21 I month _Child Support_ Levi Buffenmeyer

$64. 12_/ month – Arrears – Levi Buffenmeyer

$641.21 I month _Child Support_ Theodore Buffenmeyer

$64.12_/_month Arrears Theodore Buffenmeyer

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.

_X_Defendant ____ 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 governmentsponsored

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.

  1. DEFENDANT PLAINTIFF SHALL PAY THE FOLLOWING FEES:

FEE TOTAL FEE DESCRIPTION PAYMENT FREQUENCY

$1 once JCS FEE $ PER once

I PER

ADDITIONAL RECOMMENDATIONS:

_______ All other provisions from the court order dated ___ , not affected

by this order, shall remain in full force and effect.

Defendant is required to contribute 71.2% of the yearly tuition cost for Levi

to attend New Covenant Christian School. Defendant is not required to

contribute toward the cost of Levi’s counseling.

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 copayments;

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-

  1. 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:

  1. BRADFORD H. CHARLES

BHC/oeh

cc: Domestic Relations

Mitchell Buffenmeyer// 500 Pond Vista Lane Apt. N Manheim, PA 17545

Annelle Buffenmeter// 218 Swatara Circle Jonestown, PA 17038

Max Smith, Esq.// C/0 James, Smith, Dietterick 11 E Chocolate Ave. Ste. 300

Hershey, PA 17033

Rebecca Cheuvront, Esq.// 53 N Duke Street Ste 319 Lancaster, PA 17602

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

DOMESTIC RELATIONS SECTION

ANNELLE BUFFENMEYER,

Plaintiff

v.

MITCHELL BUFFENMEYER,

Defendant

APPEARANCES:

  1. 2019-5-0745

PACSES NO. 422117860

Max Smith, Jr., Esquire For Annelle Buffenmeyer

JAMES, SMITH, DIETTERICK & CONNELLY LLP

Rebecca Cheuvront, Esquire For Mitchell Buffenmeyer

Opinion, Charles, J., December 5, 2022

Before us are multiple exceptions filed by Annelle Buffenmeyer

(hereafter, “MOTHER”) to the Domestic Relations Master’s (DRM) findings

and recommendation. For the reasons that follow, we will grant two of

MOTHER’s exceptions and we will deny the rest.

  1. FACTS

Annelle Buffenmeyer (hereafter, “MOTHER”) and Mitchell

Buffenmeyer (hereafter, “FATHER”) married in 2009 and separated in 2019.

The parties are the parents of two children, ages four and nine. MOTHER

has primary physical custody of both children. In accordance with the

Custody Order authored by the Hon. Samuel A. Kline, J. on March 19, 2021,

FATHER is to have custody of one of the children, L.B., one evening per

week as well as every other weekend. See Buffenmeyer v. Buffenmeyer,

No. 2019-20745 (19 Mar 2021). Beginning on the week of March 14,2021,

FATHER was permitted supervised custody of his other child, T.B.

Beginning on or about April 19, 2021, FATHER was permitted partial

custody of T.B. during the same time when he exercises custody of L.B. /d.

MOTHER owns her own hair salon, where she works part time.

FATHER works as a lineman for Pennsylvania Power and Light (PP+L); a

position he has held since 2007.

Both children suffer from disabilities. T.B. has autism, speech issues,

feeding issues, a congenital heart defect, and lung issues. He has in-home

nursing care sixteen ( 16) hours per day. T. B. also attends speech therapy

with a provider in Hershey. L.B. has an unspecified learning disability, and

receives tutoring over the summer. L. B. a I so attends counseling every two

to three weeks. These counseling expenses are not covered by FATHER’s

insurance.

Previously, L.B. attended a public school located in the Northern

Lebanon School District. Because he was performing poorly, as well as

behavioral issues\ MOTHER enrolled him in New Covenant Christian

School. See Transcript of Master’s Hearing dated November 4, 2021

(hereafter, “N.T.”) at p. 46-47. Both MOTHER and FATHER are graduates

of New Covenant. N.T. at p. 44. With respect to the above-mentioned

expenditures, the DRM found that MOTHER made these decisions without

consulting FATHER. Indeed:

Defendant testified that Plaintiff does not include him in any

discussions or decisions regarding the children … The Hearing

Officer found this testimony credible. It is unfortunate that

Plaintiff is making so many unilateral decisions and then

expecting Defendant to pay the lion’s share of the costs

associated with these decisions.

DRM Report dated December 13, 2021 at p. 7.

MOTHER filed a Complaint for Support on November 5, 2019. An Order

for Support was entered on December 6, 2019. On July 15,2021, FATHER

filed a Petition to Modify. The Domestic Relations Master (DRM) conducted

a hearing on November 4, 2021 and issued her findings and

recommendation on December 13, 2021. On January 3, 2022, MOTHER

filed exceptions, raising the following points:

  1. The DRM erred by failing to decrease the Child Tax Credit (CTC) from

$3,000 per child to $2,000;

1 With respect to what we have described as “behavioral issues”, MOTHER stated that

L.B., “would cry and he was having episodes of peeing and defecating his pants at

school. It started happening on a daily basis, and his teacher was unkind about it.” N.T.

at p. 47. MOTHER reported that this behavior has ceased. Since he began attending

New Covenant, “[L.B.] is doing great [at New Covenant]. Every time that I pick him up

from school, he says it was great. I love it. It is like night and day difference, so he is

doing really well.” N.T. at p. 47.

  1. The DRM erred in calculating FATHER’s income;
  2. The DRM erred in not considering FATHER’s lack of parental

involvement in calculating a support award;

  1. The DRM erred in not requiring FATHER to contribute to the children’s

private schooling and counseling expenses; and

  1. The DRM failed to consider FATHER’s rental properties in calculating

his income.

For the reasons stated herein, MOTHER’s exceptions are granted in part

and denied in part.

  1. DISCUSSION
  2. Child Tax Credit

MOTHER argues that the DRM incorrectly assessed the CTC and

Earned Income Credit to her income. In her findings, the DRM assigned

both the CTC and the Earned Income Credit (EIC) to MOTHER, which

accounted for a combined amount of $11,610. MOTHER avers that, because

the American Rescue Plan Act of 2021 applied only to the 2021 taxable

year, the DRM should have applied a tiered support order reflecting the

CTC returning to its $2,000 per child amount beginning on January 1, 2022.

On the other hand, FATHER argues that the DRM should have assigned the

CTC to him because it would provide more available resources for the

children.

The binding authority in Lebanon County regarding the CTC is the

case of Walizer v. Walizer, C.P.Leb.Co. No, 2021-5-0253 (December 7,

2021 ). In Walizer, we held, “If neither or both parents have applied for the

CTC, the DRM shall be at liberty to decide which parent should be entitled

to receive the CTC benefit … the standard ‘default’ paradigm will be for the

custodial parent to enjoy the CTC benefit.” Walizer, supra at p. 12.

The record before us is unclear as to whether neither or both of the

parties applied for the CTC. But this does not control our decision. In both

instances, the DRM is empowered to decide which parent receives the CTC.

Moreover, MOTHER, the custodial parent, is the de facto recipient of CTC.

The DRM assessed the facts and circumstances surrounding the

Buffenmeyers’ financial and custodial situation and determined that

MOTHER should be entitled to the CTC. She did not abuse her authority in

doing so. Should the parties mutually agree to assign the CTC to FATHER,

the proper channel for relief would be effectuated through a motion for

modification, not as an exception to the DRM’s findings. Accordingly, we

will affirm the DRM’s decision to assign MOTHER the CTC.

Establishing that the DRM did not err by assigning MOTHER the CTC,

we turn to MOTHER’s exception arguing that a tiered support order should

be entered. The CTC was established through the Taxpayer Relief Act of

  1. 26 U.S.C. § 24(a). While the original credit amount per qualifying

child was established at $1,000, this amount increased to $2,000 per child

for taxable years 2018 through 2025. 26 U.S.C. § 24(h)(1). As a result of

the American Rescue Plan Act of 2021, the $2,000 per child credit was

temporarily increased to $3,000. 26 U.S.C. § 24(i)(1 ). In May of 2022, the

Internal Revenue Service announced that the increase in credit from $2,000

to $3,000 per qualifying child would be implemented only for taxable year

  1. See https://www.irs.gov/pub/taxpros/fs-2022-29.pdf. 2 In other words,

for the 2022 taxable year until at least 2025, the CTC will return to the

$2,000 figure.

The DRM made her findings and recommendation in December, 2021.

At the time in which the DRM made her findings, the question of whether

the increase in the CTC would remain for the 2022 taxable year was

unanswered. Now that the Internal Revenue Service has determined that

the CTC will return to its $2,000 per child figure, we will enter an Order

reflecting the change to the amount received from the credit.

  1. FATHER’s Income

MOTHER argues that the DRM erred in using FATHER’s year-to-date

earnings to calculate his income when said figure is not representative of

his actual earning capacity. Specifically, MOTHER argues that FATHER is

intentionally working less overtime in an effort to reduce his income.

Most often, earning capacity equals actual income. The general rule

is that support should be based upon actual earnings. Citing the

2 In addition, the Advance CTC monthly payments will no longer be applied.

Pennsylvania Superior Court case of Portugal v. Portugal, 798 A.2d 246

(Pa. Super. 2002), we have stated:

As a general rule, a person’s earnings are the benchmark by

which support is gauged … Thus, absent unusual circumstances,

we will not base an obligor’s support obligation upon artificially

high amount that exceeds his or her actual income.

Feudale v. Regus, C.P.Leb.Co. No. 2009-5-0087 (September 7, 2010).

When a party voluntarily refuses to work or reduces his income for the

purposes of paying less in support, this Court has held that an earning

capacity may be appropriate. See e.g., Price v. Price, C.P.Leb.Co. No.

1996-5-00517 (May 31, 2012)(“The bottom line is that FATHER must get a

job … There are no longer any excuses for FATHER to refuse to work and

there will be consequences if he refuses to do so.”).

The DRM found that FATHER works at a full time at a job that pays

very well. Indeed, FATHER’s monthly net income exceeds $7,000.

Throughout this litigation, FATHER has maintained employment with PP+L.

FATHER has never willfully refused to work. Based upon the entirety of the

record, imputing an earning capacity in this case would not be appropriate.

Accordingly, we will affirm the DRM’s finding with respect to FATHER’s

income.

  1. FATHER’s Lack of Parental Involvement

MOTHER argues that since the Support Guidelines have abandoned

the presumption that non-custodial parents have at least thirty (30) percent

of the custodial time, a tiered order should have been entered to account

for FATHER’s alleged lack of parental involvement.

The 2021 Comment to Support Rule 16-3 states:

Previously, the Basic Child Support Schedule incorporated a

30% child custody presumption, which created approximately a

5% decrease in the basic child support obligation across all

combined monthly net incomes regardless of the actual custody

schedule. The new Basic Child Support Schedule reflects the

actual expenses of an intact family living in a single household

at the various combined monthly net incomes and the number

of children with no shared custody adjustment.

Pa.R.C.P. No. 1910.16-3. Essentially, MOTHER argues that from January

2022 onward, the DRM should have considered that FATHER spends

considerably less time with the children than MOTHER, and thus the Court

should award her a greater amount of support in order to cover the costs

associated with paying for the children’s expenses. In fact, MOTHER

argues that, despite the custody Order in place which grants FATHER

partial custody of T.B., FATHER spends virtually no time with him.

Our Superior Court has held that the trial court has complete

discretion to decide whether to grant an upward deviation “in cases in which

the obligor has little or no contact with the children.” Morgan v. Morgan,

99 A.3d 553 (Pa. Super. 2014). Indeed, the Morgan court explicitly states,

” … our law does not require that an upward deviation must be applied.”

Morgan, supra at 560.

In the matter before us, FATHER was granted custodial time with both

of the parties’ children. The information before us suggests that he

exercises custody of only one. Had we considered this issue in a complete

vacuum, we likely would have increased FATHER’s support obligation via a

deviation analysis. Especially given T. B.’s significant disabilities,

employing an upward deviation against a parent who has chosen not to help

with the robust daily care required by T.B. would not be unreasonable. That

said, we cannot and will not assess this issue in a vacuum. Rather, we

must also recognize that FATHER’s child support award will already be

higher than the Guideline amount by virtue of his obligation to pay 71% of

L.B.’s cost to attend New Covenant School. In addition, we will also

consider the fact that FATHER must pay spousal support to MOTHER.

Given these realities, we will not award an upward deviation to FATHER’s

already robust duty to support his family.

  1. Private School and Counseling Expenses

Pennsylvania Rule of Civil Procedure 191 0.16-6(d) acknowledges that

“[e]xpenditures 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.” Pa.R.C.P. 1910.16-6(d).

Thus, the guideline provides:

(1) If a party incurs an expense for a need not factored into the

Basic Child Support Schedule and the trier-of-fact determines

the need and expense are reasonable, the trier-of-fact shall

allocate the expense. The trier-of-fact may order that the

obligor’s expense share is added to his or her basic support

obligation, paid directly to the service provider, or paid directly

to the obligee.

Pa.R.C.P. 1910.16-6(d)(1). A parent can be required to pay for expenses

under Rule 191 0.16-6(d) even if he or she does not believe they are

necessary, when the activities are beneficial to the child in question and

“the expenses associated with these activities are consistent with the

family’s standard of living and station in life.” Silver v. Pinskey, 981 A.2d

284, 302 (Pa. Super. 2009) (en bane) (citation omitted).

If private school tuition is found to be a reasonable need of a child, a

support award may be adjusted so that each parent provides a reasonable

share of the tuition. Fitzpatrick v. Fitzpatrick, 603 A.2d 633 (Pa. Super.

1992). A private school education may be a reasonable need “if it is

demonstrated that the child will benefit from such and if private schooling is

consistent with the family’s standard of living and station in life prior to

separation.” Murphy v. McDermott, 979 A.2d 373, 377 (Pa. Super. 2009)

citing Gibbons v. Kugle, 908 A.2d 916, 921 (Pa. Super. 2006). Evidence

of a family’s history of private schooling is not required in order for a court

to conclude that private school is consistent with the family’s standard of

living. Gibbons, supra at 923. Such evidence, however, is relevant to

counter an argument that private schooling is not a reasonable need. ld.

In the matter before us, the DRM recommended that FATHER not be

required to pay a portion of L. B.’s private school expenses. We believe this

was in error. Primarily, MOTHER testified that L.B. has materially benefitted

from attending New Covenant. According to MOTHER, the behavioral

issues that plagued L.B. have ceased since his enrollment in private school.

Additionally, it cannot be overlooked that L.B. suffers from a learning

disability. MOTHER testified that Northern Lebanon was unable to

adequately provide the aid that L.B. requires, and that New Covenant is

better equipped to administer such aid. This is clearly a benefit to L.B. and

his education. We therefore find that the first factor weighs in favor of

MOTHER.

With respect to the second factor, we also find that private schooling

is consistent with the family’s standard of living and station in life. Initially,

both MOTHER and FATHER are alumni of New Covenant. While we cannot

base our entire decision upon this fact, we can consider it in our decision.

Gibbons, supra at 923. Moreover, the yearly total for L.B. to attend New

Covenant is approximately $4,000. While some courts have found that the

cost of private school places them outside of the family’s standard of living,

see e.g., Braxton v. Braxton, 5 Pa. D. & C.4th 62 (Delaware Co.

1990)(finding that private school tuition is not a reasonable expense when

the court determined the parties’ incomes to be “modest”), the cost here is

not outside of the parties’ standard of living. FATHER’s net monthly income

exceeds $7,000 and MOTHER’s net monthly income is approximately

$2,1 00; a $4,000 yearly expense is not cost-prohibitive as to place private

school out of the family’s standard of living.

For all of the reasons outlined above, we find that the DRM erred with

respect to not requiring FATHER to pay for a portion of L.B.’s private school

tuition.

In contrast with our finding that the DRM erred in failing to require

FATHER to pay a proportional share of L.B.’s private school tuition, we find

no error in the DRM’s finding that FATHER not be required to pay for L.B.’s

counseling expenses. A court may require parents to pay a designated

percentage of reasonable and necessary healthcare expenses for their

children that are not covered by insurance, and those unreimbursed medical

expenses shall be proportionally allocated between the parties. D.H. v.

R.H., 900 A.2d 922 (Pa. Super. 2006) citing 23 Pa.C.S.A. § 4326; Pa.R.C.P.

  • 191 0.16-6(c). However, an annual limitation may be imposed when the

burden of the obligor would otherwise be excessive. /d.

In the case of D.H., the Superior Court examined whether the trial

court erred in requiring the father to pay a proportional share of the cost of

his special needs children to be placed in out-of-state residential treatment

facilities not covered by the father’s insurance. The Superior Court found

such expense in error, stating:

Here, we find the placement of the parties’ children in out-ofstate

facilities was both unreasonable and unnecessary given

the numerous residential treatment facilities in this

Commonwealth that may have better served the best interests

of the children by allowing them to remain close to home …

There is no evidence to indicate mother thoroughly considered

any of the available facilities in Pennsylvania … Further, there

is very little evidence that an adequate inquiry was made into

the cost associated with the various residential treatment

facilities available in Pennsylvania, and only sparse evidence

was presented at trial on this matter.

D.H., supra at 928.

In the matter before us, the DRM made findings with respect to the

following pertinent points:

  • FATHER has good insurance;
  • The counselor that L.B. sees is located in Lancaster and does not

accept insurance; and

  • There was no testimony provided to indicate that MOTHER attempted

to find a provider that FATHER’s insurance would cover.

Nothing in the record indicates that MOTHER undertook reasonable

efforts to find a counselor who would accept FATHER’s insurance. There

are likely many counselors in Lebanon County who are qualified to help

L.B. and also accept FATHER’s insurance. Without an agreement or

compelling evidence that the Lancaster-based therapist is uniquely

necessary for L.B., it is unreasonable to expect FATHER to pay for a

counselor in Lancaster. Based on the record before us, there is insufficient

evidence to support the precept that FATHER should pay for a counselor

he did not approve and who does not take his insurance.

  1. FATHER’s Rental Properties

MOTHER argues that the DRM erred in failing to include the income

generated from FATHER’s rental properties into his income for purposes of

support. Generally, courts are required to consider all sources of income

when determining income available for child support. MacKinlev v.

Messerschmidt, 814 A.2d 680, 681 (Pa. Super. 2002). Pursuant to

23.C.S.A. § 4302:

“Income.” Includes compensation for services, including, but not

limited to, wages, salaries, bonuses, fees, compensation in

kind, commissions and similar items; income derived from

business; gains derived from dealings in property; interest;

rents; royalties; dividends; annuities; income from life insurance

and endowment contracts; all forms of retirement; pensions;

income from discharge of indebtedness; distributive share of

partnership gross income; income in respect of a decedent;

income from an interest in an estate or trust; military retirement

benefits; railroad employment retirement benefits; social

security benefits; temporary and permanent disability benefits;

workers’ compensation; unemployment compensation; other

entitlements to money or lump sum awards, without regard to

source, including lottery winnings; income tax refunds;

insurance compensation or settlements; awards or verdicts; and

any form of payment due to and collectible by an individual

regardless of source.

  • 4302 (emphasis supplied). Despite this, Appellate Courts have

consistently held that an asset awarded in equitable distribution may not be

included in an individual’s income for purposes of calculating support

payments. See e.g., Miller v. Miller, 783 A.2d 832, 835-36 (Pa. Super.

2001 )(holding that money received from the sales of an asset awarded in

equitable distribution may not be included in an individual’s income for

purposes of calculating support.); see also, Rohrer v. Rohrer, 715 A.2d

463, 466 (Pa. Super. 1998)(stating the Court’s disapproval of “double

dipping,” i.e., using the same revenue source for support and equitable

distribution.).

We know from reviewing the Divorce file that the parties’ equitable

distribution dispute is still pending. At this point in time, no definitive

decision has been rendered about FATHER’s apartments. We do not know

whether the apartments will be considered to be marital property? We do

not know whether any increase in value of the apartments will be considered

to be marital property? We do not even know whether the existence of the

apartments, even if deemed non-marital, will be considered as part of the

Court’s percentage distribution scheme. What we do know is that if we

include income from the apartments as part of our child support analysis,

that would infinitely complicate the job of the Special Master to consider

the economic impact of the apartments within the parties’ divorce dispute.

In this case, the DRM determined that FATHER’s apartment

ownership is not economically advantageous to him. While we question this

finding 3, the record that has been presented to us does not enable us to

overturn the DRM’s Factual Finding. To be sure, the existence of FATHER’s

apartments and their economic value will have to be more carefully

evaluated at some point in the future. For today, we will simply deny

MOTHER’s Exception pertaining to the apartments as premature and as

unsupported by the record now before us.

3 If FATHER truly were receiving no economic advantage from owning the apartments,

why would he continue to own them?

Ill. CONCLUSION

This is a complicated case. A multitude of issues have been

presented to both the DRM and this Court. Today, we have undertaken a

global evaluation of all of these issues. We emphasize that none of our

final decisions were rendered in a vacuum. Rather, our decisions were all

based upon the totality of information and issues presented to this Court.

We have considered the fact that MOTHER will receive a copious tax benefit

for the benefit of her children. We have also considered the fact that

FATHER pays spousal support and that he will pay for a portion of his son’s

education in addition to his basic child support obligation. Even though we

conclude that upward deviation would be an appropriate response to a

parent who eschews any contact with a special needs child, we have chosen

in this case not to deviate from the Guidelines based upon the global nature

of our decision and the totality of evidence presented.

The practical effect of our decision today will be to affirm the decision

of the DRM with the exception of the CTC and parochial school education

issues. Relating to the CTC, we will recalculate support for 2022 and

beyond by reducing MOTHER’s income by $2,000 per year. As it relates to

the education issue, we will grant MOTHER’s Exception and we will require

FATHER to pay 71% of the cost of providing L.B. with an education at New

Covenant School. We remind FATHER that even with this decision in place,

his total support obligation for his family will be roughly $41,000 per year.

This is significantly less than 50% of FATHER’s net income. Given that

both of the parties’ children have special needs, this is not an unreasonable

percentage for an obligor parent to expect to have to pay. An Order

consistent with the above will be entered today’s date.

 

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Ben has written 972 articles for Lebanon County Legal Journal

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