Judges Opinions, — August 17, 2016 10:00 — 0 Comments

Kelly L. Richards vs. Christopher A. Richards No. 2006-50322

Civil Action-Family Law-Child Support-Support Guidelines-Reasonable Expenses of the Obligor-Deviation-Custody Related Travel Expenses-Considerable Distance

Defendant, who lives in Illinois, filed a Petition for Modification of a support Order regarding the parties’ ten (10) year old son, who lives with Plaintiff in Pennsylvania, seeking deviation from the Pennsylvania Support Guidelines amount based upon the cost of transportation in order for him to exercise periods of partial custody over his son per the custody Order between the parties.

1. In reviewing a report of a domestic relations master, the court must give fullest consideration to the credibility findings of the domestic relations master, who was present to observe the demeanor of the witnesses and to hear their testimony.

2. However, the report of the domestic relations master is only advisory, and the court is not bound by its conclusions.

3. Title 23 Pa.C.S. § 4322(a) mandates that the Pennsylvania Support Guidelines shall place primary emphasis on the net incomes and earnings capacities of the parties.

4. Reasonable expenses of the obligor already have been factored into the Support Guidelines.

5. However, the Support Guidelines create a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties. The presumption shall be rebutted if the trier of fact makes a written finding or a specific finding on the record that an award in the amount determined under the Support Guidelines would be unjust or inappropriate.

6. Section 4322(a) allows deviations from the support guideline amounts for unusual needs, extraordinary expense and other factors.

7. Pa.R.C.P. Rule 1910.16-5 sets forth factors that a court must consider when determining whether to deviate from the guideline support amount, including, in relevant part, unusual needs and unusual fixed obligations and other relevant and appropriate factors, including the best interests of the child.

8. A child should be able to enjoy a relationship with both parents, and maintaining a long distance relationship with a child neither is easy nor is it inexpensive. As a matter of law, unusual custody-related travel expenses, including air flight transportation and hotel and rental car expenses if the parent travels to see the child, must be considered in assessing whether to deviate from the Guideline Support amount whenever considerable distance separates a parent from a child.

9. Defendant’s need to expend funds to exercise his periods of custody with his son justified a downward deviation of the support amount pursuant to the Guidelines by ten percent (10%).

L.C.C.C.P. No. 2006-50322, Opinion by Bradford H. Charles, Judge, June 7, 2016.

John D. Gragson, Esquire, for Plaintiff

Matthew S. Kopecki, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

DOMESTIC RELATIONS SECTION

No. 2006-5-0322

PASCES: 581108213

KELLY L. RICHARDS, Plaintiff

v.

CHRISTOPHER A. RICHARDS, Defendant

ORDER OF COURT

AND NOW, this 7th day of June, 2016 after consideration of the Domestic Relations Master’s Findings of Fact, Defendant’s Exceptions, and Oral Argument, it is hereby Ordered and Decreed that the Exception filed by the Defendant is respectfully GRANTED IN PART AND DENIED IN PART. The temporary Order of Court, dated April 5, 2016, is MADE MODIFIED AS INDICATED BELOW. It is further ordered as follows:

This Order shall be effective March 24, 2016.

Based upon the unusual custody-transportation situation in this case, FATHER’s exception is GRANTED and a 10% downward deviation of FATHER’s support obligation will be entered.

The amount of support to be paid by Defendant is: $777.61 per month for child support for one child, to wit, Keith Richards. The amount to be paid by Defendant on accumulated arrears is: $77.76 per month. The amount to be paid for each dependent and obligation amount is allocated as follows:

AMOUNT/FREQUENCY OBLIGATION TYPE BENEFICIARY

$777.61/mo. Child Support Keith Richards

$77.76/mo. Arrears Keith Richards

A review hearing in this case is to be conducted in October of 2016.

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.

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.

ADDITIONAL RECOMMENDATIONS: At all future hearings, Defendant must provide W-2 earnings for any Drill pay received, as well as all pay stubs from such pay.

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, Judge

APPEARANCES:

JOHN D. GRAGSON, ESQUIRE For Kelly L. Richards

DOMESTIC RELATIONS SECTION

MATTHEW S. KOPECKI, ESQUIRE For Christopher A. Richards

Opinion, Charles, J., JUNE 7, 2016

Pennsylvania’s support guidelines provide a basic template for child support that promotes statewide uniformity. However, the rules governing support are called “guidelines” for a reason: They were never intended to be immutable one-size-fits-all mandates to be slavishly followed in each and every case. In fact, the support guidelines themselves suggest otherwise. The preamble to the guidelines points out that courts retain the discretion to enter support orders that differ from the guideline formula when interest of justice so require. Even more important, the guidelines contain a separate deviation provision setting forth circumstances that could justify a Court’s decision to deviate from the formula-generated amount.

In this case, the Defendant argues that strict adherence to the support guidelines would not be fair because he has a new family and the hefty amount of support generated from the guidelines would deprive him of money that he needs to travel over 1,000 miles in order to visit his son. While we do not quarrel with the Domestic Relations Master’s formula-based calculation of child support, we agree with father that strict application of the child support guidelines would create an unusual hardship in this case. We therefore issue this Opinion to declare that long-distance travel expenses needed to facilitate custody time between parent and child must be considered as a deviation factor in assessing child support.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kelly L. Richards (hereafter “MOTHER”) and Christopher A. Richards (hereafter “FATHER”) are the parents of a ten year old son. MOTHER resides with her son in Lebanon County. FATHER is employed as a police officer in Chicago, Illinois.

This case originally appeared in Lebanon County via a Petition for Support filed by Courts of Alaska under the Uniform Interstate Family Support Act (“UIFSA”). We were asked to enforce an Alaskan Order that directed FATHER to pay $653.73 per month. At the time, MOTHER had returned to Pennsylvania with the parties’ son and FATHER remained in Alaska.

At some unknown point in time, FATHER relocated from Alaska to Illinois. At that point, the Alaskan Courts no longer wished to assert continuing jurisdiction as neither party resided in Alaska. FATHER therefore signed a consent to Pennsylvania’s jurisdiction on March 19, 2014. Shortly thereafter, FATHER filed a Petition for Modification. A hearing was conducted before a Domestic Relations Master (“DRM”) on September 4, 2014 that resulted in a support order requiring FATHER to pay $705 per month.

Later in 2014, FATHER filed another Petition for Modification. The parties appeared at a conference on January 15, 2015. As a result of that conference, FATHER’s support obligation was temporarily lowered to $611 per month. A six month review was also established. That review conference occurred on January 22, 2015. No argument was reached at the conference.

At FATHER’s request, a hearing was scheduled before a DRM on September 17, 2015. In a Report and Recommendation dated October 1, 2015, the DRM recommended that FATHER pay $901 per month. This amount was based on FATHER’s earnings as a rookie police officer and his additional income from part time duty with the National Guard. Once again, the DRM directed that a review hearing be conducted in February of 2016.

The most recent review hearing was conducted before a DRM on March 24, 2016. FATHER participated by telephone. His counsel was personally present at the hearing. MOTHER also personally appeared.

At the review hearing, FATHER presented evidence that he has a new family that he is supporting. His two new children are ages 5 and 2. FATHER stated that his wife is a stay-at-home mom and that FATHER provides sole support for his Illinois family. The DRM reviewed FATHER’s earnings information and determined that he earns $2424 bi-weekly from his job as a police officer. In addition, the DRM afforded father with an earning capacity of $120 per month as a result of FATHER’s work in the military reserves.

At the hearing before the DRM, FATHER presented extensive evidence about his expenses. FATHER indicated that he had purchased a new home and the living expenses for his current family will be increasing. The DRM articulated the following note regarding FATHER’s expenses:

Significant testimony was presented regarding additional expenses Defendant will be incurring. Master does not find these to be unusual or out of the ordinary expenses. No adjustment to child support payments has been made due to Defendant’s increase in living expenses.

FATHER also argued to the DRM that his support order should be reduced so that he will retain enough disposable income to travel from Illinois to Pennsylvania to see his son. While the DRM did not specifically address FATHER’s transportation expense, we have taken judicial notice of the custody order that is in effect between MOTHER and FATHER. That Order was dated September 19, 2014. The Order affords father with custody time at Christmas and during the Christmas holiday. In addition there is a transportation clause that reads:

FATHER shall pay for transportation of the minor child for his periods of partial custody and shall be entitled to pick air-travel times as are most economical. However, if travel is agreed by the parties to be by car, then MOTHER and FATHER shall agree to meet at a location which is one-half (1/2) way between their homes for exchange of the minor child and each shall bear his/her own cost for vehicular travel and transportation.

(Custody Order, September 19, 2014 at ¶11).

With respect to MOTHER, the DRM determined that she was employed by the County of Lebanon earning $1,223 bi-weekly. In addition, the DRM made a finding regarding child care. During the school year, MOTHER paid $50 per week and in the summer, she expended $230 per week.

With the figures generated from her analysis, the DRM calculated support in accordance with Pennsylvania’s child support guidelines. She afforded FATHER with a monthly net income of $3,826.31. MOTHER had a monthly net income of $2057.06. FATHER’s child support obligation was then established at $675 per month. To this, the DRM added a child care adjustment of $215 per month. The DRM’s total recommendation was $864.01.

FATHER filed timely exceptions. In those exceptions, FATHER proffered the following arguments:

(1) FATHER argues that he no longer receives income from the United States Army Reserve.

(2) MOTHER misrepresented the cost of YMCA summer daycare. Instead of $233 per week, the cost of the YMCA program was actually $150 per week;

(3) FATHER requested a deviation from the guideline amount due to his high living expenses;

(4) FATHER indicates that any support calculation must also account for his need to expend funds in order to visit with his son. He describes these expenses as “not discretionary, and in fact, required for FATHER to maintain a relationship with his son.”

MOTHER filed a cross-exception to suggest that the DRM should have ordered another review hearing to assess future circumstances.

II. SCOPE OF REVIEW

The Superior Court has provided guidance with respect to the scope of review that we should ordinarily 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 (Pa.Super. 1992); Dukmen v. Dukmen, 420 A.2d 667 (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. Id. at 291, citing Rankin v. Rankin, 124 A.2d 639 (Pa.Super. 1956).

Where, as here, no transcript of the hearing before the DRM is prepared, we are limited to a review of the DRM’s report and any exhibits that were submitted. Because of the limited information given to us when exceptions are filed without a transcript, we have held:

In a situation where a transcript does not exist, we believe the correct standard of review should be ‘manifest abuse of discretion apparent on the record’. In other words, if we can glean error from reviewing the [DRM’s] report and exhibits alone, we would have the ability to modify a [DRM’s] recommendation. On the other hand, unless such error is apparent on the face of the record, we would be left with no choice but to uphold what the [DRM] decided.

Brown v. Brown, C.P.Leb.Co., No. 2000-0880 (Charles, J. 1/6/04); Houser-Gerhart v. Gerhart, C.P.Leb.Co., No. 2000-20193 (Charles, J. 5/20/02).

III. DISCUSSION

A. FATHER’s Factual Arguments

FATHER’s first two exceptions involve his income and the amount of MOTHER’s child care expense. Both exceptions are predicated on a factual disagreement he has with the DRM. We have articulated on multiple occasions that decisions of a DRM as to credibility must be afforded great weight. See, e.g. Brown v. Brown, C.P.Leb.Co. No.2000-0880 (January 6, 2004); Lippi v. Lippi, C.P.Leb.Co. No.2007-50676 (May 7, 2013). Our unwillingness to usurp the DRM’s fact finding responsibilities is predicated upon the same type of analysis that was employed by the Pennsylvania Superior Court in Smith v. Smith, 43 A.2s 71 (Pa.Super.1945), where the Court noted that the fact finder …

possesses an advantage not granted to us. He sees the parties and their witnesses face to face and observes their appearance and demeanor as they testify. We are restricted to the cold type of the record from which temperament and personality have been subtracted. Yet the demeanor of witnesses is the very touchstone of credibility; in the absence of reactions produced by other applicable tests, the appearance and demeanor of witnesses are the litmus by which the presence of truth is revealed…

In this case, the DRM obviously determined that MOTHER expended $233 per month in child care expenses during the summer. The DRM also determined that FATHER continues to receive monies as a result of his status as a member of the United States Army reserve. There is absolutely nothing in the record other than FATHER’s legal brief to suggest that the DRM erred, and we cannot and will not elevate self-serving statements in a brief over the determination made by the DRM after hearing witnesses face to face. For this reason alone, FATHER’s first two exceptions will be denied.

B. FATHER’s Expenses and Transportation Costs

With the advent of Pennsylvania’s support guidelines, the analysis of child support morphed from one that focused upon expenses to one that focused upon income. Section 4322 of Pennsylvania’s Domestic Relations Code mandates that the guidelines “shall place primary emphasis on the net incomes and earning capacities of the parties…” 23 Pa.C.S.A. §4322(a). Moreover, our Commonwealth’s highest Court has noted that “reasonable expenses of the Obligor” are factored into the support guidelines. See Humphreys v. DeRoss, 790 A.2d 281 (Pa.2002). See also Arbet v. Arbet, 863 A.2d 34 (Pa.Super.2004).

With the above being recognized, the support guidelines do not require universal formulaic compliance. The enabling statute found in the Domestic Relations Code makes allowance for “deviations for unusual needs, extraordinary expenses and other factors …” 23 Pa.C.S.A. §4322(a). Moreover, the guidelines themselves state:

The support guidelines are a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties. The trier of fact must consider the factors set forth in Rule 1910.16-5. The presumption shall be rebutted if the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined in the guidelines would be unjust or inappropriate.

Pa.R.C.P. 1910.16-1(d).

Pa.R.C.P. 1910,16-5 sets forth factors that a Court must consider when determining whether to deviate from the guideline support amount. Those factors are:

(1) unusual needs and unusual fixed obligations;

(2) other support obligations of the parties;

(3) other income in the household;

(4) ages of the children;

(5) the relative assets and liabilities of the parties;

(6) medical expenses not covered by insurance;

(7) the standard of living of the parties and their children…

(9) other relevant and appropriate factors, including the best interest of the child or children.

Pa.R.C.P. 1910.16-5(b). “Thus, Court has reasonable discretion to deviate from the guidelines if it appears to be necessary and the record supports the deviation.” Ricco v. Novitski, 874 A.2d 75, 83 (Pa.Super.2005).

When assessing so-called “deviation cases”, we have consistently employed a global evaluation of all information before us. For example, we noted in one case that even though a father’s income was not quite at the “self-sufficiency reserve” amount that would have required a reduction, his income was so close to that “self-sufficiency reserve” amount that when combined with other factors, downward deviation from the support amount was deemed appropriate. See Rebecca Moyer v. Dale Nafzinger, C.P.Leb.Co., No.2009-5-0473 (April 14, 2016). See also Ambacher v. Ambacher, C.P.Leb.Co., No. 2014-50308 (January 27, 2016).

In this case, the DRM heard significant testimony from FATHER about his expenses. The DRM ended up concluding that none of those expenses were “unusual or out of the ordinary.” This is a credibility determination that we can and must respect.

With the above being said, the DRM included nothing in her report about FATHER’s need to expend funds in order to visit his son in Pennsylvania. FATHER points out that he resides over one thousand miles away from MOTHER and his son. For FATHER to enjoy any sort of relationship with his son, he will be required to expend considerable funds for travel. He argues that we should consider his custody-related travel expenses as a factor that warrants deviation from the support guideline amount. We agree.

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 care 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.

In McCourt v. Myers, 407 A.2d 875 (Pa.Super.1979), one parent resided in Arizona and the other resided in Pennsylvania. Because the trial court recognized that transportation expenses to facilitate custody exchanges would be significant, the Court entered an Order allocating those travel expenses. The father opposed the Court’s directive that he reimburse the mother for one-half of her transportation expenses. The Superior Court disagreed, and declared that allocation of transportation expenses was within the trial court’s discretion.

Even more specific is the decision of our sister court in Lancaster County. In Melin v. Catepillan, 75 Lanc.L.Rev. 462 (1997), Judge Hummer was confronted with a dispute between two Millersville University college professors. Unfortunately, the father relocated to the country of Chile and remained there with his son. Father sued for child support. The support guidelines would have required that Mother pay $442 per month. However, Judge Hummer decided that deviation was appropriate given the significant expense that mother incurred in order to have a relationship with her son. Judge Hummer stated:

Of the factors listed in Rule 1910.16-4, to be considered when the court is determining whether to deviate from the guidelines amount, only the last two bear on the current situation. These factors are the parties’ and child’s standard of living and “other relevant and appropriate factors, including the best interests of the child.” Pa.R.C.P. 1910.16-4(b), 42 Pa.C.S.A. The unique circumstances of this case considered within the context of these factors, justify lowering mother’s support obligation so that she may maintain contact with her son. [See Ball v. Minnick, 648 A.2d 1192, 1197 (Pa.1994)] It is clear that it is in the best interest of Sebastian to have continued contact with mother, and due to the lower cost of living in Chile this reduction will not negatively impact on his standard of living. It will simply spread the burden more equally between the two parents, requiring father to carry his fair share of the cost…”

A similar result to Melin was reached by the Lycoming Court of Common Pleas in the case of Bowman v. Cowden, 18 Pa.D&C4th 71 (1992). In Bowman, the mother relocated from Pennsylvania to Cedar Rapids, Iowa. The court recognized:

There was no question that the respondent has a substantial expense in paying for his share of the transportation expenses, necessarily involved in exercising his rights to partial custody, as a result of the Petitioner and the children voluntarily moving to Iowa.

Id. at pg. 72. As a result, the court deviated from the guidelines and reduced father’s obligation by ten percent.

In this case, FATHER should be able to periodically visit with his son… and these visits should not be rendered impossible by virtue of a child support obligation. By itself, FATHER’s need to expend money to see his son justifies a downward deviation of his child support amount. In legal parlance, the deviation rule requires us to consider “unusual needs” and “the best interest of the child”. We consider the cost of breaching the distance between Illinois and Pennsylvania to be “unusual” and we accept as a truism that it is in the best interest of the parties’ son that ongoing, periodic visits occur with FATHER.

In Bowman, supra, the Court reduced a child support obligation by ten percent in order to facilitate ongoing contact between the parent and child. A similar deviation in this case would reduce FATHER’s support obligation by $86 per month. This would afford FATHER with an additional $1032 per year in disposable income that he could use to pay custody exchange transportation expenses. Giving the evidence presented, we conclude that a downward devation of ten percent is appropriate to facilitate ongoing contact between FATHER and his son.

FATHER will no doubt complain that our downward deviation is not enough. We fully recognize that the $1,032 per year we are returning to FATHER’s pocket will not be sufficient to pay all of the expenses related to the custody-related travel he wishes to undertake. So be it. FATHER is reminded that he also has an obligation to sacrifice financially in order to maintian a relationship with his son. Via the order we will be entering today, MOTHER will effectively relinquishing $84 per month in support to help defray FATHER’s custody-related travel. At a minimum, FATHER should contribute no less than this amount from his own disposable income to help pay for transportation.

C. Review Hearing

In their briefs, both MOTHER and FATHER make reference to the fact that their case has been periodically reviewed by a DRM. MOTHER argues that FATHER was recently hired as a police officer, and his income is likely to increase by virtue of a seniority-driven salary schedule that applies to the Chicago Police Department. Although FATHER opposes the idea of an automatic review, we could perceive numerous scenarios under which a review could actually benefit FATHER. Especially given that our decision to deviate below the support guidelines is based upon the premise that FATHER will expend funds for transportation that will exceed $1032 per year, and that actual documented expenses are always preferable to even logical presumed amounts, we agree that another review hearing would be appropriate. Our Order will therefore include an automatic review provision.

IV. CONCLUSION

We have authored this opinion to emphasize that unusual custody-related travel expenses must be considered in assessing whether deviation from the support guideline formula amount should be granted. We consider any custody arrangement that requires air flight transportation to be “unusual”. Therefore, the expenses attendant to that transportation must as a matter of law be characterized as “unusual needs” under Pennsylvania’s support deviation rule. Likewise, in the overwhelming majority of cases, facilitating regular contact between a distance-separated parent and child will be considered to be in that child’s best interests. Accordingly, for most long distance custody situations, we would weigh custody deviation factors (b)(1) and (b)(9) in favor of the parent who is financially responsible for paying the custody-related transportation costs.

In this case, the DRM chose not to deviate from the support guidelines. Based upon the unusual custody-transportation situation in this case, we are constrained to disagree with the DRM’s decision. Therefore, we will grant FATHER’s exception and will order a 10% downward deviation of FATHER’s support obligation.

Because we perceive numerous benefits to a periodic review of this case, we will also be granting MOTHER’s exception that focuses on the need for another review hearing. The most recent hearing before the DRM occurred on October 1, 2015. We will direct that another hearing be conducted in October of 2016.

1) We note that the DRM did not include any finding in her report regarding custody-related travel expenses. As far as we can tell, the DRM did not even consider FATHER’s need to expend funds for travel in order to maintain a relationship with his son.

2) For example, if the custody-related transportation expenses are significantly greater than either FATHER or this Court anticipated, that could lead us to deviate below the guideline amount by even more than 10%. Similarly, as the children grow older, MOTHER’s day care expense will likely decrease. Also, MOTHER could also receive pay increases that could affect the guideline calculations.

3) We recognize that in some instances, a custody court will allocate travel expenses as part of a long-distance custody arrangement. That did not occur in this case. Moreover, MOTHER did not voluntarily agree to contribute to the expense of enabling FATHER to see his son. Had the custody court entered an order allocating expenses, or had MOTHER voluntarily agreed to contribute toward those expenses, we likely would not have even embarked upon a child support deviation analysis.

 

 

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