Archives: Rules

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(Photo by Indi Samarajiva)

 

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

 

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

 

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

 

Pennsylvania has recently made considerable changes and revisions to the support section of the Rules of Civil Procedure; some are more significant than others, but one which may make things a little easier for parties and counsel alike is the revision to Rule 1910.11 which goes into effect January 31, 2012.

Rule 1910.11 will make it a requisite that all support conferences result in a guideline calculation. Specifically, it states that the parties “must provide income information” so that the conference officer can perform a guideline calculation. The only exception is where the parties are represented by counsel and have reached an agreement about the amount of support and contribution to additional expenses; otherwise, everyone else gets a support calculation.

 

The result of this change is that unrepresented parties and attorneys will have more information to help them understand the support obligation and how it was arrived at by the conference officer. This will also provide valuable information for attorneys who are not involved in the case until after the initial support conference; having a support calculation and basic income information will result in a more complete Domestic Relations Office file and, by extension, allow attorneys and their clients to be better prepared for the next step of the process (which may vary depending on practices of each county).

 

Though not a major overhaul of the rules or as nuanced as some of the other revisions we have seen over the past year, this revision may have the most day-to-day impact on litigants and attorneys.

Much as with a presidential election, the Pennsylvania support guidelines are to be revised by the Pennsylvania Supreme Court once each four years.  Drafts of proposed changes to the guidelines were published in July and December, 2008.  In each instance comment from the legal community and public was invited.  But for more than a year now we have been left to wonder how the guideline changes would look once finally completed.

The task was concluded on January 12 of this year when The Supreme Court issued Order 519 amending the guidelines effective May 12, 2010.  Until that date the existing Rules prevail but since the changes in the guidelines are themselves a change in circumstance, any order issued between now and May 12 is subject to further amendment at that time.  So, for practical purposes the guidelines are here today.

 

The major changes have to do with child support for households with combined net incomes exceeding $20,000 a month.  Under the last set of guidelines any case where income exceeded $20,000 was to be decided based upon proven expenses under a 1984 case, Melzer v. Witsberger. The data and calculations required to do a complete Melzer analysis were complicated and often produced wildly varying results from case to case and judge to judge.  So a decision has been made to take the guideline grids to $30,000 a month.  Where income is higher than $30,000 a formula is provided from which a presumptive amount of support may be calculated.

There are changes in the guidelines themselves although our initial review of those changes do not portend much radical change.  Here are some samples:

 

COMBINED NET

                                                1                              2                              children

10,000                               1390 (old)                1840 (old)

                                       1385 (new)                1965 (new)

15,000                                1741 (old)                2253 (old)

                                       1782 (new)                2319 (new)

20,000                                2301 (old)               2877 (old)

                                       2144 (new)               3018 (new)

25,000                          Melzer analysis required (old)

                                       2443 (new)              3389 (new)

30,000                          Melzer analysis required (old)

                                       2756                       3777 (new)

 

Many members of the bar are critical of what they see as an inherent stinginess in these guideline amounts.  In each instance, where combined net income triples from $10,000 to $30,000 a month, the amount of child support essentially doubles even though the parents presumably have much more free money (beyond their own core needs) to contribute to child support.

 

In cases where the income exceeds $30,000 per month net, formulae are employed to calculate the support amount.  Where one child is involved the support will increase by 6.5 cents for each dollar of income beyond the $30,000.  In the case of two children the support increases by 8 cents for each dollar over the $30,000 threshold.  So, if combined net was an astronomical $50,000 per month, two children would warrant a monthly award of $5,377.  One child would warrant $4,056.

 

Another significant area of change is in the area of shared custody.  Historically, to qualify for a discount from the standard guideline amount premised upon significant custodial time spent by the child(ren) with the non-primary parent, that parent had to have custody for 40% of the year or 146 nights.  Reaching that threshold entitled the parent to a discount upon his share of the support amount by 10 basis points.  Thus, if Father had the child 146 nights and earned 60% of the combined net income of both parents, his percentage obligation would be reduced by 10 basis points from 60% to 50%.

 

The new regime assumes that a parent who does not have primary custody still has the child 30% of the time or 109 nights.  If that parent has less than that amount, support may be adjusted upward on the theory that the non-custodial parent is not paying his/her share. This concept did not make it into the rule itself; only the commentary to the rule so that the issue needs to be raised before the Court and argued.  As before, once the 40% custody level is attained there is a 10 basis point reduction.  At 50% it is a 20 basis point reduction.  So if the non custodial parent has 78% of the net income, the support will be 58% and not 78%.  The new rules now state clearly that under no circumstances shall support of any kind be awarded to a spouse where the result would have the payee with more income than the payor.  The commentary states that Courts are to be less concerned about who has the child overnight and more focused upon what child expenses each parent is contributing.

 

Where each parent has primary custody of one or more children it has now been clarified that in calculating the support amounts the Court does not include the child support due to a parent as part of his income when doing the calculation for the other child or children.  It is only that parent’s net income before any child support award that it utilized.

 

In a rare case of the Rule of Civil Procedure reversing case precedent, the new rules state that mortgage adjustments in the amount of support for high mortgage cases shall only apply in cases where the parties are not yet divorced.

 

There are changes to the amount of spousal support and alimony pendent elite (pre divorce alimony) that warrant attention as well where the income of the couple exceeds $30,000 a month net.  In those cases, the commentary directs trial courts to apply the governing formula (30-40% of the difference in incomes depending upon whether there are minor children subject to support payments) but adds that the grounds to deviate from the guidelines recited in Rule 1910.16-5 as well and make a record of whether deviation was warranted.  To that end the commentary states that income and expense statements are to be filed in these cases so that the record may be developed.

 

There are also smaller changes worth mentioning.  In low income cases, the amount of income a person must have to support him or herself before a child support order may be entered has been raised.  Orders must be tailored so that any obligor retains $867 a month to support him or herself.

 

The use of earning capacity data (e.g., Dept. of Labor earnings reports) to calculate support orders is being discouraged.  The use of this data is relevant only when the Court finds that the obligor has willfully failed to secure employment consistent with abilities and that finding must be on the record. And earning capacity is to be based on a single full time job rather than some hypothetical construct of how and when a person could work.  The rule does not go so far as to exclude over-time or second job income from consideration in making an award where that income is actually paid.  Whether this means that a litigant could decline additional hours or quit a second job and use that as a basis to seek a reduction in an order premised upon historical over-time or supplemental employment is not really clear.

 

The guidelines themselves are appended to this summary with the following link:

 

http://www.aopc.org/OpPosting/Supreme/out/519civ.attach.pdf  rules

 

A new day begins…