Julie Ditmer, v. Thomas Ditmer

 

Civil Action-Family Law-Child Support-Guideline Amount-Deviation-Custody Order-Inclusion of Required Expense-Counseling

 

Defendant (“Father”) filed Exceptions to the Order adopting the Report and Recommendation of the Domestic Relations Master awarding support to Plaintiff (“Mother”) pertaining to the parties’ minor child.  Father asserts that it was an error of law and/or an abuse of discretion to include costs of counseling required by the custody Order as part of the support obligation.

 

1. While child support primarily will be determined based upon an income based formula, the law always has recognized the necessity for flexibility.

 

2. The Child Support Guidelines provide for the possibility of deviation from the established Guideline formula when certain circumstances exist.

 

3. Custody litigation expenses generally should not support deviation from the Guideline established support amount.

 

4. Factors that should be considered in determining whether a custody litigation expense warrants deviation from the Guideline established support amount include whether the custody related expense is required or optional, the amount of the expense, the income of the parties, whether both parties have similar expense, whether a party’s unreasonable behavior caused the expenditure, whether the custody Order made a determination regarding allocation of the expense between the parties and whether the expense disproportionately is imposed upon one (1) party.

 

5. Remand for additional proceedings is necessary to determine whether the cost of counseling required by the custody Order warrant deviation from the Guideline established support amount applying the above factors.

 

L.C.C.C.P. No. 2020-50328, Opinion by Bradford H. Charles, Judge, November 22, 2022.

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

            JULIE DITMER,                                          :           NO. 2020-5-0328

Plaintiff                                                           :           PACSES NO. 089301337
:

:

1. :

THOMAS DITMER,                                    :

Defendant                                                         :

:

 

 

ORDER OF COURT

 

AND NOW, this 22^nd day of November, 2022, in accordance with the attached Opinion, the Exceptions of Thomas Ditmer (hereafter FATHER) are GRANTED.  The above-referenced matter is to be remanded for another hearing before the Domestic Relations Master.  The Domestic Relations Master shall then render a decision consistent with the Opinion that is attached.  Pending the modified decision on remand, FATHER shall owe as temporary support the sum of $700.00 per month.  This amount was determined without prejudice to the ability of the Domestic Relations Master to enter whatever recommendation she believes is appropriate given all of the evidence that will be presented to her on remand.

ACCORDINGLY, the Temporary Order of this Court that was entered without prejudice will be as follows:

This Order shall be effective April 12, 2022.

AMOUNT/FREQUENCY       OBLIGATION TYPE               BENEFICIARY

_$700.00 _/_month_               _ Child support _             Amanda Nicole Ditmer

_$70.00_/_month_                  _Arrears_                         Amanda Nicole Ditmer

 

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:  _50_% by Defendant and _50_% by Plaintiff, including psychological counseling expenses.

__X__Defendant ___ Plaintiff ____Neither party is to provide medical coverage __for Plaintiff and child.

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

_____/______________________________PER _________

JUDICIAL COMPUTER FEE NOT ORDERED DUE TO CASE BEING REGISTERED.  CASE DID NOT ORIGINATE IN THE DRS.

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

Julie Ditmer// 137 Brookwood Dr., Palmyra, PA 17078

Thomas Ditmer// 141 Schoolhouse Rd., Palmyra PA  17078

John Gragson, Esq.//Domestic Relations Office

1. Scot Feeman, Esq.// 815 Cumberland St. Ste. 200, Lebanon PA 17046

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

            JULIE DITMER,                                          :           NO. 2020-5-0328

                        Plaintiff                                              :           PACSES NO. 089301337
:

1.                                                 :          

                                                                                    :          

THOMAS DITMER,                                    :          

            Defendant                                          :

                                                                                    :

 

APPEARANCES

 

John Gragson, Esquire                                  For Julie Ditmer

1. Scot Feeman, Esquire                       For Thomas Ditmer

OPINION BY CHARLES, J., November 22, 2022

 

How and where do custody-related expenses and child support intersect?  Should child support be determined completely independent of expenses that are generated by a Custody Court?  If custody expenses are to be considered, how should this occur?  These are all questions for which Pennsylvania law provides no clear answers.  Today, we will further muddy child support waters by answering the question of whether custody-related expenses should be considered by a Child Support Court with a profound “Maybe”.

 

1. FACTS & PROCEDURAL BACKGROUND

Julie Ditmer (hereafter MOTHER) and Thomas Ditmer (hereafter FATHER) are the parents of two children.  One is 19 and considered emancipated.  The other is still a minor.  In 2020, the parties divorced.  On July 20, 2020, MOTHER initiated a Complaint for Support.  Although the record is not completely clear, it appears as though support was paid pursuant to a Divorce Agreement entered into in 2020.

On February 18, 2022, MOTHER appeared at the Lebanon Domestic Relations Office in order to complain that FATHER was not complying with his duty to pay support pursuant to the parties’ Divorce Agreement.  A file was opened by the Domestic Relations Office.  On March 11, 2022, FATHER filed a Request for a Support Hearing.  The matter was listed for the April term of Domestic Relations Court.  On April 12, 2022, this Court entered an Order to confirm an agreement of the parties that FATHER pay $472.64 per month.  At that time, we also directed that the Domestic Relations Office should recalculate the Defendant’s arrearages.

On April 25, 2022, MOTHER filed a Petition to Modify Support because she claimed that the parties’ custody situation had dramatically changed.  Eventually, a hearing was conducted on September 22, 2022.  Following that hearing, a Domestic Relations Master (DRM) issued a recommendation that FATHER should pay $780.15 per month to support one child.

FATHER filed Exceptions.  Both FATHER and the staff attorney for Domestic Relations have filed briefs.  Worth noting is the fact that the attorney for the Domestic Relations Office agrees with FATHER that the DRM erred with respect to how she considered the parties’ alimony arrangement.  For that reason alone, we will be remanding this case to a DRM in order to permit her to conduct further analysis of the alimony issue.

In addition to the Exceptions filed relating to alimony, an issue was raised at the DRM hearing regarding counseling expenses that were mandated by a Custody Order.  MOTHER requests that FATHER be required to pay the counseling expense through an increased Support Order.  FATHER believes that expenses mandated in Custody Court should not be addressed in Child Support Court.  Because this issue is recurring, and because we concur with the attorney for the Domestic Relations Office that some guidance from this Court would be helpful, we have chosen to author this Opinion in order to address the question of whether and how custody-mandated amounts should be considered in Child Support Court.

 

1. DISCUSSION

Child support should never be determined in a vacuum.  While child support will primarily be determined based upon an income-based formula, the law has always recognized the necessity of flexibility.  This Court has stated: “A Court cannot always robotically adhere to rigid formulas in a child support case.  the perspective must be widened to view how all of the factors governing child support work together and impact the final calculation of a child support obligation.”  Lehman v. Walmer, C.P. Leb.Co. No. 2008-5-0412 (September 12, 2012).  Moreover, the Support Guidelines themselves provide for the possibility of deviation from the formula when certain circumstances exist.  See, e.g. ­­­­Pa.R.C.P. 1910.16-5.

In Richards v. Richards, C.P. Leb.Co. No. 2006-5-0322 (June 7, 2016), a father resided in Illinois and the child resided with his mother here in Pennsylvania.  The father presented evidence of significant travel expenses that were expended to effectuate partial custody.  This Court afforded the father with a 10% reduction of child support using a deviation analysis under Pa.R.C.P. 1910.16-5.  We stated:

“We accept as an axiom that a child needs to enjoy a relationship with both parents.  We also accept as an axiom that maintaining a long distance relationship with a child is neither easy nor inexpensive.  For a parent such as FATHER who lives hundreds or thousands of miles away from a child, air flight transportation is often required.  Regardless of whether the child flies to the parent or the parent flies to the child, there will be significant transportation costs.  Moreover, when the parent flies to see the child in the child’s own environment, there will be additional hotel and rental car expenses.  As a matter of law, we declare that these types of expenses must be considered in support court whenever considerable distance separates a parent from a child.”

 

Having determined that custody-driven travel expenses can trigger a deviation analysis, it would be logically inconsistent to declare that custody-related expenses should never be considered in Child Support Court.  That said, does this mean that all custody-related expenses should trigger a deviation analysis?  We think not.  Every parent who litigates custody will have expenses pertaining to that litigation.  Those custody litigation expenses should not generally require a deviation from Child Support Guidelines.[1]

So what line can be drawn between custody expenses that must be borne exclusively by the parties and those expenses for which consideration should be given in Child Support Court?  Unfortunately, there is no one-size-fits-all answer to this question.  While we recognize today that custody-related expenses cannot be ignored by a Child Support Court, we stop well short of declaring that custody expenses should always be a factor when determining an amount of child support.  In fact, quite the opposite is true – considering custody expenses as a reason to change child support amounts should be considered as an “exception” to the “general rule” that the Child Support Formula governs the issue.

There are a variety of factors that should be contemplated before a child custody expense is utilized as a reason to deviate from the Formula Guideline amount.  Without being exclusive, those considerations include:

• Is the custody-related expense necessary or optional? Is it an expense that relates to the desire of the parties or is it an expense that was ordered by a Court?
• What is the amount of the expense? Certainly, a Child Support Order should not be impacted by de minimis or even relatively minor custody-related expenses;
• How much do the parties earn? Parties who have significant assets or income will have the ability to pay child support amounts without regard to custody-related expenses;
• Do both parties have a similar expense? When both parties are required to equally share custody-related expenses, this is a factor that will be weighed against the consideration of such expenses in Child Support Court;
• Has a party’s intransigence or unreasonable behavior caused the expenditure? No Court should reward unreasonable obstinance.  If a Court is required to employ a remedy that causes expense due to the unreasonable conduct of one party, that is a factor that should be considered;
• Did the Custody Judge make a determination or a recommendation about how the expense is to be allocated between the parties or considered by a Child Support Court? This factor is self-explanatory and recognizes the axiom that Custody Judges have a better handle on issues pertaining to custody than do Child Support Courts;
• Is the custody expense being disproportionately imposed upon one party? If one of the custody litigants is impecunious or otherwise unwilling or unable to contribute toward the custody-related expenses, it is more likely that the amount of those expenses should be considered as a factor in Child Support Court.

In this case, a Custody Judge ordered family counseling.  A reason existed for this Order that involved the best interests of the children who were the subject of the custody dispute.  We will therefore begin by recognizing that counseling is a necessity for this family and not an option.  As it relates to the remaining considerations outlined above, we have very little information.  We do not even know how much money is implicated by the Court’s counseling requirement.  At this juncture, we simply cannot render a decision as to whether the counseling should or should not be a component of the parties’ Support Order.

We will be remanding this case to the Domestic Relations Master (DRM) for another hearing consistent with this Opinion.  As we do so, we also note that the Domestic Relations Office has agreed with FATHER about the DRM’s consideration of alimony.  As the DRM considers the issue pertaining to counseling, we direct that she also consider the position of the Domestic Relations Office as it relates to alimony.

[1] As a general rule, both parents should be required to pay the costs related to their attorneys and the costs related to Court-appointed conciliators or Guardians Ad Litem without the expectation that the other parent will be afforded some sort of credit in Child Support Court.