In the perhaps “too many years” I have been reading and reporting on family law cases, there are times when a reported case inspires a collective shrug from the family law bar. One prominent example is Beasley v. Beasley, a case that held that because a law firm was owned by a single lawyer, it could not have goodwill value associated with it. That ruling seemed to ignore the fact that Jim Beasley, the owner of the practice, employed a number of fellow lawyers who were business generators in their own right.
Another case that seemed consigned to history was Colonna v. Colonna. In this Supreme Court case written by Justice Sandra Newman, the Court held that a parent could secure an award of child support, notwithstanding the fact that the payor had primary physical custody. 855 A.2d 648. What made this 2004 decision so challenging was the fact that Pennsylvania is an income shares state where the formula adopted presumes that the primary custodian is getting support from a non-custodial parent. Every once in a while one hears about a Colonna case, but insiders tended to assume that the party bringing the claim was unaware of the “history.”
In a precedential decision issued by Retired Senior Judge Colins on January 31, the Superior Court affirmed a child support award of $1,558 to a non-custodial parent.
Both parents work in health care. Father is a doctor at Geisinger earning $530,000. Mother held employment in nuclear medicine until her employer shuttered the facility she worked at in 2015. The parties’ property settlement agreement in 2011 was based on shared physical custody and mandated payments of $2,800 a month from father to mother. In 2018, Father filed a petition to modify based on a custody stipulation that gave father half of summers and 82% custody during the school year. 50/50 custody for 20% of the year and 82/18 for 80% comes to about 75/25% on the year as a whole. In 2018, Father also had a surge in earnings that he said was not going to be replicated such that his gross was $670,000.
Mother testified that she held a variety of part-time jobs once her work at Geisinger ended. In early 2019, she found new employment at $72,600 a year. Father’s vocational expert found she could earn $85,000 but provided no clear path to that higher paying job. While mother was between jobs, she accumulated significant credit card debt ($40,000) and nearly lost her home. In a word, she was struggling. Her mortgage is $1,850 per month. Mother has a boyfriend earning $42,000 annually. Evidence showed that he contributed to the household although the precise amount is not clear.
The hearing officer found a guideline support level of $1,948 but reduced it to 1,558 because the boyfriend was contributing.
Father appealed since he effectively had 75% custody. He wanted the Order terminated in it’s entirely and suggested that under Colonna, and Saunders, 908 A2d 356 (Pa. Super. 2006) he was entitled to be the payee of support.
While the panel opinion is decisive in holding that a partial custodian can still be eligible to receive child support, the actual facts forming the basis for such an award are less clear. The Court observes that, but for Father’s agreed support payment, Mother may not have been able to keep the home she acquired after divorce. She was found to lack assets sufficient to provide “appropriate housing and amenities,” while exercising her 25% custody. The Court relies heavily upon the past precedent of payments notwithstanding shared physical custody and that Father’s income remained high. Noting at one point that the agreed upon initial amount of $2,800 would still be $2,000 even if the reduction from 50% to (they say 36%) custody was factored in. It also found that a parent has no duty to move away from a child to find suitable employment where that move would “interfere” with her ability to co-parent. That holding by itself is one that parents of all stripes will want to rely upon. The case was distinguished from Saunders where the courts explicitly found that the father seeking child support was not doing enough to find employment that was better paying. Curiously, the current case believes Saunders can be distinguished because the father seeking support in that case had never previously received child support from the primary custodian where this parent had by agreement been getting $2,800 a month.
Father’s argument that the support Order did not consider deviation factors other than income from the live in boyfriend (Pa.R.C.P. 1910-16-5(b)(3)) was dismissed as waived under Pa.R.A.P. 1925(b). Father’s request for a contribution to the child’s private school tuition was also denied because private school was his project and the cost (unspecified) was de minimis in relation to his income. It also appears that Father had previously litigated a contribution toward private school and lost the issue in trial court without taking an appeal. Consequently, the ruling was considered the law of this case, not eligible to re-litigate. See also Llaurado v. Garcia-Zapata, 180 E.D.A. 2019, 11/13/2019.
Last, but certainly not least, is the Superior Court’s treatment of retroactivity. As we noted, Father’s earnings in 2018 were almost $700,000. He offered that this income level was not going to be sustained in 2019 as it involved a non-reoccurring project. The Opinion states: “It is not an abuse of discretion for a trial court to base child support on the most recent year’s actual income, even if there is testimony that some of that income will be non-recurring….” If a substantial decrease occurred in 2019, the Father could file a petition to modify. Herein lies the catch. The instant petition was filed in October 2018 and heard by a Master in February 2019. His exceptions were decided by May 7, 2019. So, taking him at his word for purposes of this argument and the extra $10,000 a month in gross income ceased in 2018, when is it that he should file his modification? There is no easy answer to this problem and it is one that occurs with more and more frequency. It is common today for contingent income to equal or far exceed salary. That contingent income is episodic, typically coming as part of an award of stock equivalents. We are inclined to view these awards as worthy of 12-month modifications. However, the signal in this case is more amorphous. Mein docteur, you have said your bump in income in 2018 will not repeat in 2019 and we have no evidence to dispute that. Nevertheless, even though it is 2019 already, we are ordering you to pay support at 2018 levels. You are welcome to seek a modification at some unspecified time in the future when you can prove that 2019 was as you forecast.” However, until then, be prepared to pay support on income you no longer earn.
When we went to a guideline system 35 years ago, it was supposed to provide uniformity and a measure of bureaucratic certainty. Unfortunately, the ways in which those in the upper economic classes are paid is now riddled with uncertainty as is consistent employment itself.