Judges Opinions, — May 10, 2023 11:36 — 0 Comments

Leslie Bowman, v. Scott Bowman

Leslie Bowman, v. Scott Bowman

 

Civil Action-Family Law-Domestic Relations-Child Support-Authority of Domestic Relations Master-Earning Capacity-Disability Pension-Admissibility-Physician Verification Statement-Hearsay-Medical Records Exception-Rest as Treatment-Childcare Expenses

 

Scott Bowman (“Father”) filed Exceptions to the Order adopting the Report and Recommendation of the Domestic Relations Master directing the payment of support for the parties’ two (2) children.  In Father’s Exceptions, Father asserted that the Domestic Relations Master erred and/or abused her discretion by establishing a review hearing, assessing him with an earning capacity when he receives disability pension income, precluding admission of a physician verification statement as hearsay and including childcare expenses as part of the Order when he is able to provide childcare for the children.

 

  1. The court must give fullest consideration to the credibility findings of the Domestic Relations Master, who was present to observe the demeanor of witnesses and to hear their testimony.

 

  1. The report of the Domestic Relations Master is advisory only, and the Court is not bound by its conclusions.

 

  1. When the Court has the benefit of a transcribed record for review, the Court must consider all of the evidence de novo and make an independent determination of the amount of support due and owing.

 

  1. The Domestic Relations Master is afforded board authority to manage disputes presented, including the authority to establish review hearings as needed.

 

  1. Assignment of an earning capacity that is more than Father currently receives in disability pension benefits may be appropriate after Father voluntarily agreed to the terms of a separation agreement with the Lebanon City Police Department contingent upon the grant of non-work related disability offered as part of his employment.

 

  1. Pa.R.C.P. Rule 1910.29 allows admission of a physician verification form without personal testimony of the treating physician if the party serves the form on the other party not later than twenty (20) days after the conference and no objection is lodged within ten (10) days of service.

 

  1. Medical records fall under the business records exception to the prohibition against hearsay for the purpose of establishing facts relating to hospitalization, dates, treatment, methodology, types of treatment prescribed and patient symptoms.

 

  1. A document from a doctor that directs a patient not to work is a form of treatment that is admissible as a business record.

 

  1. In light of the Court’s involvement in custody proceedings, the record reflects no danger that would be posed to the children if Father were to provide childcare services and should be considered as an option for provision of those services, which should be considered in assessing Father’s earning capacity on remand.

 

L.C.C.P. No. 2020-50057, Opinion by Bradford H. Charles, Judge, May 27, 2022.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

 

DOMESTIC RELATIONS SECTION

 

            LESLIE BOWMAN,                        :           NO. 2020-5-0057

Plaintiff                                                           :           PACSES NO. 894117924
:

:

  1. :

:

SCOTT BOWMAN,                         :

Defendant                                                         :

:

ORDER OF COURT

 

AND NOW, this 27th day of May, 2022, upon consideration of the exceptions filed by Scott Bowman, and in accordance with the attached Opinion, the Order of this Court is as follows:

  1. The above-referenced matter is remanded to the Domestic Relations Master (DRM) for further evaluation in accordance with the attached Opinion.
  2. Leave is granted for the DRM to render a decision retroactive to June 7, 2021.
  3. Pending the decision of the DRM on remand, Scott Bowman shall pay Leslie Bowman the sum of $950.00 per month for the support of two children as follows:

Effective May 27, 2022, the amount of support to be paid by the Defendant is $950.00 per month for child support for Matthew Bowman and Christopher Bowman plus $95.00 per month on arrears.

THIS ORDER IS ALLOCATED AS FOLLOWS:

AMOUNT/FREQUENCY       OBLIGATION TYPE               BENEFICIARY

_$475.00 _/_month_               _ Child support _        Matthew Bowman

_$47.50_/_month_                  _Arrears_                                Matthew Bowman

_$475.00 _/_month_               _ Child support _        Christopher Bowman

_$47.50_/_month_                  _Arrears_                                Christopher Bowman

 

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 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.

  1. ___X__DEFENDANT _____PLAINTIFF SHALL PAY THE FOLLOWING FEES:  

FEE TOTAL   FEE DESCRIPTION             PAYMENT FREQUENCY

__$40.25 _/  _                         _JCS Fee  __               _$40.25 _PER _one time __

________/___ __________________            _________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/oeh

 

cc:           Domestic Relations

Michael Bechtold, Esq.// 525 South Eighth Street Lebanon, PA 17042

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

Leslie Bowman// 155 S 21st Street Lebanon, PA 17042

Scott Bowman// 131 W Sheridan Ave Annville, PA 17003

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

 

DOMESTIC RELATIONS SECTION

 

            LESLIE BOWMAN,                        :           NO. 2020-5-0057

Plaintiff                                                           :           PACSES NO. 894117924
:

:

  1. :

SCOTT BOWMAN,                         :

Defendant                                                         :

:

:

:

APPEARANCES

 

Colleen Gallo, Esquire                                              For Leslie Bowman

Reilly Wolfson

 

Michael Bechtold, Esquire                                       For Scott Bowman

BUZGON DAVIS

 

OPINION BY CHARLES, J., May 27, 2022

Before us are the exceptions filed by Scott Bowman (hereafter, “FATHER”) to the Domestic Relations Master’s (DRM) findings and recommendation. We will consider the merits of these exceptions.

  1. FACTS

FATHER and Leslie Bowman (hereafter, “MOTHER”) are the parents of two (2) twin ten-year-old boys. Pursuant to a custody stipulation overseen by this jurist, MOTHER retains primary physical custody of the children.

On January 24, 2020, MOTHER filed a Complaint for Support. Between 2020 and February 2022, numerous support hearings were conducted.  Relevant to the issue now before this Court, a hearing was conducted before the DRM on February 17, 2022. The DRM issued her findings on March 4, 2022.

FATHER filed exceptions to the DRM’s findings and recommendation on March 24, 2022. There, FATHER raised four issues:

  • The DRM erred by sua sponte ordering the February 17, 2022 review hearing;
  • The DRM erred by assigning FATHER an earning capacity;
  • The DRM erred by determining that FATHER’s exhibit was hearsay; and
  • The DRM erred in awarding MOTHER childcare expenses.

The matter was listed for Oral Argument, which was to be conducted on May 17, 2022. In preparation for Oral Argument, both parties timely filed Briefs in support of their positions.[1] Prior to Oral Argument, the parties stipulated that the exceptions be decided on their aforementioned Briefs. We author this Opinion in consideration of the Briefs filed by both parties, the transcript supplied, and after thorough review of the casefile.

II.         DISCUSSION

Prior to Oral Argument, FATHER requested that a transcript of the hearing before the DRM be prepared. In Lippi v. Lippi, C.P.Leb.Co. No. 2007-5-0676 (May 7, 2013), we described the standard of review to be employed when a transcript of the DRM hearing has been prepared. We stated:

Our 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 (Pa. Super. 1964). However, the DRM’s report is only advisory, and we are not bound by its conclusions. When we have a transcribed record to review, we must consider all of the evidence de novo and make an independent determination of the amount of support due and owing. Id. (citing Rankin v. Rankin, 124 A.2d 689 (Pa. Super. 1956)).

 

With our standard of review in mind, we turn to FATHER’s exceptions themselves. We will discuss each exception separately.

  1. The DRM’s sua sponte Review Hearing

A review hearing was conducted on February 17, 2022 to determine FATHER’s earning capacity. FATHER argues, without citation to authority, that the DRM does not possess the ability to order a review hearing sua sponte. We strongly disagree.

In Lebanon County, DRMs are responsible for receiving evidence, making credibility determinations and submitting recommendations about support to this Court.  As it relates to child support proceedings, the DRM is essentially a Trial Court.  In that capacity, the DRMs should and must be afforded broad authority to manage the disputes that are presented to them.  Among the authority inherently possessed by DRMs is the authority to establish review hearings as needed.

The child support determination process is a dynamic one.  Jobs of parents come and go.  Needs of the children change.  Medical issues wax and wane.  These are realities that confront DRMs on almost a weekly basis.  One way for a DRM to address shifting circumstances is to schedule review hearings where updated information can be presented.  The scheduling of such review hearings, when necessary, can protect the child-beneficiaries of support by enabling the presentation of current and evolving information.  To adopt FATHER’s position that DRMs should not ever schedule review hearings would be to unreasonably tie the hands of the child-support adjudicator in a way that is unreasonable.

Pennsylvania’s Superior Court recently discussed the inherent authority of support hearing officers to manage cases assigned to them.  Regarding the question of whether a DRM has the authority to question witnesses sue sponte, the Superior Court stated:

 

In the instant case, in the absence of adequate questioning by Appellant, the hearing officer should have questioned Appellee regarding the relevant factors relating to his earning capacity. Because Appellant failed to develop the factors related to a fair determination of Appellee’s true earning capacity, it was the hearing officer’s duty to inquire into them in order to make a fair award.

Gephart v. Gephart, 746 A.2d 613, 616 (Pa. Super. 2020) (emphasis supplied).

In order to fashion a support recommendation that is reflective of the parties’ earning capacities, a DRM must have the ability to ascertain accurate, up-to-date financial information of the parties.  Because it is the duty of the DRM to inquire as to the parties’ earning capacities, we cannot agree with FATHER that the DRM is precluded from conducting a hearing in order to inquire as to a party’s earning capacity, even if doing such investigation requires the DRM to schedule a hearing sua sponte. FATHER’s first exception is therefore overruled.

  1. FATHER’s Earning Capacity

FATHER next argues that the DRM erred by assigning him an earning capacity. By way of background, FATHER was employed as a Patrolman for the Lebanon City Police Department between January, 2003 and August, 2020. On August 28, 2020, FATHER signed a Separation Agreement with the Lebanon City Police which established his intent to voluntarily resign from the Department contingent upon the grant of non-work-related disability offered as part of his employment. See Exhibit 3 to December 2, 2021 Hearing. Pursuant to the Lebanon City Police Pension Plan, an employee who suffers a non-service-connected disability and is deemed unable to perform his police duties prior to his normal retirement date may receive disability benefits for the period in which he is considered disabled in such capacity by a physician. See Exhibit 2 to December 2, 2021 Hearing at p. 9. Disability payments are suspended in the event that the subject, “returns to employment as a full-time police officer with the employer…”, The Police Pension Fund Board may require an examination by a physician to evidence such disability. Id. at p. 9-10.

FATHER argues that an assignment of an earning capacity in excess of the amount that his pension offers will jeopardize his eligibility to receive said pension, as one of the requirements to receiving his disability is that he remain disabled. It follows, according to FATHER, that in the event that FATHER gains employment, a physician may find that he is no longer disabled, leading to the termination of his disability pension. MOTHER argues that FATHER is merely disabled as it relates to conducting work as a police officer, not working generally. Moreover, MOTHER contends that FATHER not seeking Social Security Disability is evidence that he is not disabled as it relates to functions outside of police work.

Upon thorough examination of the Separation Agreement and the Lebanon City Police Pension Plan, this Court makes the following observations:

  • The City of Lebanon Police Pension Plan does not define the words “disabled” or “disability”.
  • The Separation Agreement expressly limits FATHER’s ability to work for the City of Lebanon and the Lebanon City Police Department. There is no limitation to FATHER working elsewhere.
  • Neither the Separation Agreement nor the Police Pension Plan limit the amount of hours FATHER is able to work while maintaining his disability status.

We sympathize with the positions that both sides have proffered. On one hand, FATHER receives a bi-weekly payment for a non-work-related injury that prevents him from serving as a police officer. If he were to gain full-time employment, there is a chance—albeit slight—that the Police Pension Fund Board would order a physical to be conducted. Those results could possibly terminate FATHER’s disability benefits.

On the other hand, FATHER’s pension benefit of $2,285.00 per month equates to $13.28 per hour for a full-time job.  Given FATHER’s background and the current job market, it is likely that FATHER would be able to earn more than this amount in today’s job market.  It would defeat the purpose of child support for FATHER to refuse jobs that would pay up to $20.00 per hour in order to preserve a disability benefit that pays him $13.28 per hour.

We do not know whether or how the Police Pension Fund Board would assess FATHER’s abilities.  We are well aware that different jobs have different demands, both physically and psychologically.  At the very top of the job stress continuum would be police officers.  We accept as an axiom that people who could be considered as “disabled” from serving in law enforcement could perform a wide variety of other jobs without difficulty.  We would hope that the Police Pension Fund Board would recognize this reality and refrain from penalizing FATHER for undertaking less strenuous employment.

The record before this Court is not sufficient to enable us to adequately assess FATHER’s earning capacity.  Clearly, his earning capacity today includes – but may not be limited to – FATHER’s pension disability payment.  FATHER’s earning capacity could exceed what he is now being paid in disability.  We simply do not know enough information about FATHER’s medical condition or skills to be able to render such a decision based upon the record now before us.  We will therefore be remanding this case to the DRM for a more robust assessment of FATHER’s earning capacity.

As we remand this case, we remind everyone that FATHER knowingly and willingly assented to the terms of an agreement with the City of Lebanon.  In doing so, FATHER knew or should have known that a physical examination could be conducted at any time that could lead to the expiration of his disability benefits.  Effectively, when FATHER assented to the terms of his Separation [with the City] Agreement, he accepted an inherent risk that his benefits could cease in the future if his medical condition were to change.  Given this reality, we cannot and will not blindly accept the premise that FATHER’s earning capacity is limited to the amount of his disability benefit.  On remand, the DRM should undertake a more global assessment of FATHER’s earning capacity.

  1. FATHER’s Physician Verification Form

FATHER next argues that the DRM erred by finding that his Physician Verification Form offered at the hearing is “clearly hearsay”.  We disagree.

Pa.R.C.P. 1910.29 governs the process that should be used for presentation of medical evidence in a support proceeding.  Subsection (b) of that Rule sets forth the following as it relates to a proceeding before a DRM:

“If the matter proceeds to a record hearing and the party wishes to introduce the completed Physician Verification Form into evidence, he or she must serve the form on the other party not later than twenty days after the conference.  The other party may file and serve an objection to the introduction of the form within ten days of the date of service.  If an objection is made, and the physician testifies, the trier of fact shall have the discretion to allocate the cost of the physician’s testimony between the parties.  If there is no objection, the form may be admitted into evidence without the testimony of the physician.  In the event that the record hearing is heard sooner than thirty days after the conference, the trier of fact may provide appropriate relief, such as granting a continuance to the objecting party.”

In this case, we do not have information to enable us to discern whether the requirements of Rule 1910.29(b) were met in this case.  However, given the standard created by that Rule, it is possible for a Physician Verification Form to be admitted without personal – and expensive – testimony by the treating physician.  On remand, we admonish both parties to recognize and honor the terms of Rule 1910.29(b).

In addition to the process for admissibility of medical records established by Rule 1910.29(b), the general Rules of Evidence also address admissibility of information from physicians about a litigant’s health.  The Rules of Evidence recognize that procuring medical testimony is often cost prohibitive.  Therefore, the Rules permit medical information to be presented under exceptions to the Hearsay Rule.

Medical records are an exception to hearsay subject to the business records exception to the hearsay rule. See 42 Pa.C.S.A. § 6108; Pa.R.E. 803(6). Medical records are routinely admitted as an exception to the hearsay rule for the purpose of establishing facts relating to hospitalization, dates, treatment, methodology and types of treatment prescribed, and a patient’s symptoms. See e.g. B.E. v. Dept. of Public Welfare, 654 A.2d 290 (Pa. Cmwlth. 1995); Morris v. Moss, 435 A.2d 184 (Pa. Super. 1981); Commonwealth v. Green, 380 A.2d 798 (Pa. Super. 1977). Similarly, prescription notes or other similar evidence that a physician prescribed medicine or a specific type of treatment can also be admitted. See B.E. v. Dept. of Public Welfare, supra.

In Hellenthal v. Moss, C.P.Leb.Co. No. 1997-20702 (January 31, 2003), a mother claimed total disability as a result of multiple medical conditions. The father disputed the nature and extent of the mother’s proffered medical problems. With regard to physician-prescribed treatments as they relate to the medical records hearsay exception, we explicitly held that rest is a treatment that is included in the aforementioned exception. Indeed:

There are many types of treatment that can be prescribed by a doctor.  Medicine, physical therapy and surgery are just some examples of the type of treatment medical providers prescribe. We believe that rest is also a form of treatment that is routinely prescribed by physicians.  When a doctor tells a patient that he/she should rest or refrain from working, that is a form of treatment just as important as medicine or physical therapy. In light of this, we believe that a doctor’s note or record wherein a patient is told not to work constitutes “prescribed treatment”.  Therefore, we believe that a document from a doctor that orders a patient not to work should be admissible as a business record.  This in an important form of corroboration that a litigant can offer in support of a disability claim.

Hellenthal, supra at p. 6.

In light of the foregoing, FATHER’s Physician Verification Form can be admissible. As such, the DRM erred when she precluded FATHER’s Physician Verification Form. FATHER’s exception is therefore SUSTAINED.

  1. Childcare Expenses

Finally, FATHER contends that he should not be paying for childcare services because he is willing and able to care for the children while MOTHER is at work.

In Bechtold v. Bechtold, C.P.Leb.Co. No. 2018-5-0252 (December 7, 2021), we undertook a thorough analysis of the role that Child Support Courts should assume when considering childcare responsibilities and expenses. In Bechtold, the father earned passive income through his businesses and argued that he should not have to pay for a percentage of the expenses associated with a private babysitter because he was willing and able to provide childcare services himself. While we affirmed the DRM’s finding that the father should continue paying for childcare services, we held:

Except in the rarest of circumstances, Child Support Courts are not positioned to weigh the factors outlined above.  As highlighted by Funk and Mooney, factors such as the ones outlined above are best left to the discretion of Custody Courts.

We are fortunate in this case that the issue of whether FATHER can provide childcare services is one that can be addressed by a Custody Court within a matter of weeks.  Here, a Custody Trial is scheduled before the Honorable Samuel A. Kline for January 18, 2022.  In addition to all other issues pertaining to custody, Judge Kline will have the ability to ascertain whether FATHER can or should provide childcare that would obviate the necessity for the children to be placed in a childcare facility.  Because Judge Kline will be far better positioned to make the decision about which daycare arrangement is best for the parties’ children, we will defer that decision to him.

Bechtold, supra at p. 9[2].

This case differs from Bechtold in that a custody trial has already been conducted. Indeed, on July 21, 2021, this jurist heard testimony from the first day of the scheduled custody trial. Before the second day of the custody trial was to be conducted, both parties agreed to a Custody Stipulation, which we signed on October 15, 2021. Because we were able to observe the demeanor of the parties, and hear about their behavior and pertinent surrounding circumstances, we believe that we have the information necessary to make a determination as to whether FATHER can safely provide childcare services. Based upon everything presented in the Custody Trial, we are not aware of any danger that FATHER would pose to the children if he were to provide childcare services.  FATHER should therefore be considered as an option to provide such services.

Without question, the issue of earning capacity and childcare are inextricably linked.  For example, it would make little sense for a parent to work at a job that pays less than the cost of daycare.  Here, the opportunity cost of requiring FATHER to work must be considered given that he is willing and able to provide childcare without expense.  This is a dynamic that the DRM must consider when weighing FATHER’s earning capacity.

 

III.    CONCLUSION

As is obvious from what we have written above, child support decisions can sometimes be complicated by a wide variety of considerations.  In this case, FATHER’s medical condition is a factor.  So is his earning capacity.  So is the extent to which FATHER’s disability benefits could be affected by employment.  Finally, FATHER’s willingness to provide childcare without cost is another dynamic that is relevant.

The record before us does not provide sufficient information for us to be able to consider all of the factors outlined above.  In particular, we do not have information regarding FATHER’s health because the Physician Verification Form was not admitted in evidence by the DRM.  Because a plethora of factors must play into the support decision of this case, and because the record is insufficient for us to weigh all of those factors, we will be remanding the above-referenced matter to the DRM for another hearing consistent with the precepts set forth herein.

 

[1] In addition to the parties’ Briefs, a Brief was also filed on behalf of the Domestic Relations Office.

[2] In Bechtold, supra, we provided an analysis of the Superior Court case, Mooney v. Doutt, 766 A.2d 1271 (Pa.Super. 2001). Mooney held that the reason the father could not care for his child is because there was a possibility that the father could be employed at any time, and thus the mother would need to find another child care service as soon as father did locate employment.

…[F]ather could at any time be accepted for employment. If the child were placed temporarily in father’s care, and father then became employed, mother would have to find alternative caregiving services. Mother testified that if she withdrew child from his present highly satisfactory day care, it is unlikely that she could re-enroll him in the facility.

Mooney, supra at 1275. This matter is distinguishable from Mooney in that the maternal grandmother provides childcare to the parties’ children; not a formal daycare center. We are confident that in the event FATHER has a work conflict, the maternal grandmother will be capable of resuming childcare services.

About the author

Ben has written 995 articles for Lebanon County Legal Journal

Search