Borichewski, J. v. Borichewski, M. ( 2022 )

J-A16034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER BORICHEWSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL C. BORICHEWSKI : No. 2383 EDA 2021
Appeal from the Order Entered October 11, 2021
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2007-25066,
PACSES 403109566
MICHAEL C. BORICHEWSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER BORICHEWSKI :
:
Appellant : No. 2384 EDA 2021
Appeal from the Order Entered October 11, 2021
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2007-25066,
PACSES 243114794
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 10, 2022
Jennifer Borichewski (Mother) appeals from the October 11, 2021 order
of the Court of Common Pleas of Montgomery County (trial court) denying her
exceptions to the hearing officer’s recommendation that she pay child support
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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to her former husband, Michael C. Borichewski (Father). On appeal, she
challenges the trial court’s determinations of: (1) Father’s earning capacity;
(2) deviation from support guidelines; (3) proof of health insurance; and (4)
overpayment of support. After review, we reverse the trial court’s health
insurance determination but affirm in all other respects.
I.
This child support dispute is in its fifth year after several remands from
the trial court to the hearing officer, as each successive remand led to both
parents filing exceptions to the hearing officer’s recommendations until only
Mother filed exceptions. In total, there were five rounds of exceptions.1
A. First Round of Exceptions
Father and Mother married in 2001 and divorced in 2009. Their
marriage produced two children: M.B. (born February 2004), who is autistic
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1 The trial court conducted the proceedings under Pa.R.C.P. 1910.12, which
governs the procedure of officer conferences and hearings for support
matters. Under the procedure, a hearing officer “shall receive evidence, hear
argument and ... file with the court a report containing a recommendation
with respect to the entry of an order of support.” Pa.R.C.P. 1910.12(d). “The
court, without hearing the parties, shall enter an interim order consistent with
the proposed order of the hearing officer.” Id. at 1910.12(e). Following the
entry of an interim order, Rule 1910.12 provides that at any party may file
exceptions within twenty days and explains “matters not covered by
exceptions are deemed waived[.]” Id. at 1910.12(f). If a party fails to
request a hearing de novo or file exceptions, an interim support order is a final
order. Vignola v. Vignola, 39 A.3d 390, 394 (Pa. Super. 2012). See also
Pa.R.C.P. 1910.12(g) (“If no exceptions are filed within the twenty-day period,
the interim order shall constitute a final order.”).
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and requires constant supervision; and T.B. (born September 2005). After
the divorce, the parents split custody in a 50/50 arrangement and Father paid
Mother $868.00 a month for support.
On December 29, 2017, Father petitioned to modify support after he
was involuntarily terminated by his long-time employer, Merck. The hearing
officer denied his petition as premature because he received severance that
effectively continued his salary for a year. After both parties filed exceptions,
Father filed a second petition to modify on June 8, 2018, claiming he had
taken over full custody of the younger son on March 25, 2018.2 On July 20,
2018, the trial court held that (1) the hearing officer correctly concluded that
the first petition was premature, (2) remand was proper to determine whether
Father’s payments should be increased, and (3) Father’s second petition would
be heard at the remand hearing.
B. Second Round of Exceptions
After the remand hearing, on January 17, 2019, the hearing officer
issued two recommendations for the different custodial periods. The first
addressed Father’s first petition (Mother v. Father, PACSES #403109566),
which covered when the parents split custody of both sons (December 29,
2017, to March 24, 2018). After calculating the parents’ incomes, the hearing
____________________________________________
2Mother later stipulated to this fact but only for purposes of the support
matter because there is a pending custody dispute. See N.T., 12/6/18, at 5.
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officer directed Father to pay support for both sons in the amount of $1,217.10
for the period, which included an upward ten percent deviation in Mother’s
favor because of Father’s assets, which included a sizable inheritance that he
received from his father.
For the second case (Father v. Mother, PACSES #243114794), which
covered the period after Father took full custody of the younger son, the
hearing officer directed Mother to pay support in the amount of $694.00 per
month,3 again applying a downward ten percent deviation in her favor. As for
the period beginning January 1, 2019, because Father had yet to find new
employment, the hearing officer assessed him with an earning capacity of
$85,000.00. After applying another deviation in Mother’s favor, the hearing
officer directed her to pay $802.60 per month.
After both parties filed exceptions, the trial court remanded the matter
a second time on May 29, 2019, directing the hearing officer to: (1) determine
the parties’ relative assets; (2) explain her justification for the ten percent
deviation; (3) determine Father’s inheritance from his father; (4) explain her
assessment of Father’s earning capacity; (5) set forth any interest or
____________________________________________
3 The hearing officer stated that this amount covered the period from June 8,
2018, to December 18, 2018. The trial court later directed the hearing officer
to correct the period so that the support obligation was effective March 25,
2018, the date Father took full custody of the younger son.
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dividends Father receives; and (6) recalculate the support under Pa.R.C.P.
1910.16-4(d), assuming the parties agreed the rule applied.4
C. Third Round of Exceptions
On February 4, 2020, the hearing officer issued her recommendation
addressing the issues. First, recognizing that Father had a much higher net
worth than Mother, the hearing officer reevaluated her initial calculation and
increased the deviation in Mother’s favor to 20 percent. Second, addressing
Father’s earning capacity, the hearing officer explained her assessment by
reviewing the factors under Pa.R.C.P. 1910.16-2(d)(4)(ii), particularly
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4 Pennsylvania Rule of Civil Procedure 1910.16-4(d) provides as follows:
(1) Divided or Split Physical Custody. When Each Party Owes
Child Support to the Other Party. When calculating a child support
obligation and each party owes child support to the other party as
a result of the custodial arrangement, the court shall offset the
parties’ respective child support obligations and award the net
difference to the obligee as child support.
***
(2) Varied Partial or Shared Custodial Schedules. When the
parties have more than one child and each child spends either (a)
different amounts of partial or shared custodial time with the party
with the higher income or (b) different amounts of partial custodial
time with the party with the lower income, the trier of fact shall
add the percentage of time each child spends with that party and
divide by the number of children to determine the party’s
percentage of custodial time. If the average percentage of
custodial time the children spend with the party is 40% or more,
the provisions of subdivision (c) apply.
Pa.R.C.P. 1910.16-4(d)(1), (d)(2).
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Father’s increased child care responsibilities after taking full custody of the
younger son while also still splitting custody of the older son. Finally, the
hearing officer recalculated Mother’s support obligation under Pa.R.C.P.
1910.16-4(d) now that Father had 100 percent custody of the younger son.
Upon doing so, the hearing officer determined that a ten percent deviation in
Father’s favor rather than Mother’s was warranted because Mother exercised
no overnight custody.
After both parties filed exceptions again, the trial court issued its third
opinion on August 31, 2020, stating that its task was “limited to a
determination as to whether the [hearing officer] performed an appropriate
analysis on the limited and enumerated issues.” This task in mind, the trial
court found no error in the hearing officer’s determinations, including her
assessment of Father’s earning capacity and deviation in Mother’s favor based
on Father’s assets. The trial court also agreed with the hearing officer’s
upward deviation in Father’s favor for the younger son’s support but increased
it to 30 percent because Mother did not spend any custodial time with the
younger son.
This did not end the matter, though, as the trial court determined
another remand was needed for the hearing officer to make certain
administrative adjustments, as well as for the parties to provide updated tax
returns for 2018, 2019 and year-to-date 2020 income for her to determine
whether any adjustments were proper.
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D. Fourth Round of Exceptions
On December 28, 2020, the hearing officer issued her fourth
recommendation with the directed adjustments. Both parties again filed
exceptions. Relevant here, Father claimed that the cost of paying the sons’
health insurance through his former employer Merck had significantly
increased in September 2019 from the prior amount he used to pay of $228.00
per month. Mother, meanwhile, challenged Father being only ordered to pay
her $6.00 a month for her overpayments through the years, which now totaled
over $12,000.00.
After argument, the trial court issued its fourth opinion on May 19, 2021,
remanding one last time for the hearing officer to address the health insurance
and overpayments. However, because this matter had been going on for
several years, the trial court directed the hearing officer’s order be entered
administratively without any further hearing. The trial court, though, directed
Father’s counsel to provide the hearing officer with “verification of the cost of
health insurance, which shall be effective September 1, 2019, within 10 days
of this Order (the verification shall include, but not be limited to, the
breakdown of proportionate amounts that cover Father and the minor
children.).”
E. Fifth Round of Exceptions
Father complied with the trial court’s order and on May 27, 2021, Father
submitted to the hearing officer a “Verification of Health Insurance Cost” in
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which he attested that the cost of providing health insurance for himself and
the two children had increased to $990.00 a month effective September 1,
2019. To validate this amount, Father attached a document showing
automatic withdrawals from his checking account for the health insurance.
Mother promptly objected via correspondence to the hearing officer, arguing
that Father provided only unauthenticated proof of the cost of the health
insurance. On June 17, 2021, the hearing officer issued her final
recommendation in which she (1) adjusted the monthly health insurance
premiums to $990.00 and (2) ordered Father to pay $40.00 per month on the
overpayments.
Mother filed exceptions to reassert her challenges about the health
insurance and overpayments. At the argument held on September 30, 2021,
the trial court directed Father to provide additional documentation verifying
the monthly cost of the health insurance and how it was being allocated
between Father and the children. According to the trial court, Father
submitted a packet of documents to the trial court the next day. After
apparently receiving no response from Mother, the trial court issued its fifth
and final opinion on October 11, 2021. First, the trial court found that Father
substantially complied with providing verification of the monthly health
insurance premiums. Moving on to overpayments, the trial court noted that
Pa.R.C.P. 1910.19(g) provides the procedure for the overpayments of
support: “[i]f either party objects, the domestic relations section shall
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schedule a conference to provide the objecting party the opportunity to
contest the proposed action.” Accordingly, the trial court scheduled a
conference in front of the hearing officer for November 17, 2021, limited to
the issue of determining an appropriate repayment plan for Father.
Before that could happen, however, Mother filed these appeals, which
we consolidated. Mother complied with Pa.R.A.P. 1925(b), and the trial court
filed its Pa.R.A.P. 1925(a) opinion. On appeal, Mother raises these four issues:
I. Has the lower court distorted [F]ather’s support obligation
by miscalculating his earning capacity and then granting him a
one-year vacation from work?
II. Has the lower court debased the whole concept of deviation
by ignoring the important and compelling circumstances in this
case implicating Pa.R.C.P. 1910.16-5(b)(1), (b)(5) and (b)(9),
and by misunderstanding the assumptions under the support
guidelines, thus improperly deviating in favor of the economically
advantaged parent?
III. Did the lower court err under Pa.R.C.P. 1910-6(b) by
assessing a health insurance premium amount and allocation
solely on the basis of unilateral, unsolicited, unauthenticated,
unreliable and incomplete information provided by an
untrustworthy source while denying any opportunity—by way of
an adversarial proceeding—for objection, cross-examination or
challenge by contrary evidence, as required by the letter and spirit
of Pa.R.C.P. 1910.12?
IV. Is the economically disadvantaged parent entitled to
expeditious reimbursement consistent with Pa.R.C.P. 1910.19(g),
after she forced—by incorrect orders, under threat of
incarceration—to overpay child support by more than $12,000.00?
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Mother’s Brief at 11-12.5
II. Father’s Earning Capacity
A.
In her first issue, Mother challenges the assessment of Father’s earning
capacity of $85,000.00, arguing that the hearing officer made a factual error
in her analysis by relying on incorrect income figures when she considered
Father’s earning history. The contested part of the hearing officer’s analysis
reads as follows:
Father's earnings history has been as a long-time employee for
Merck. He consistently has earned in excess of $80,000 per year,
and last worked as a market analyst for them when he was let go
in late 2017. In 2017 he earned $93,711 as an employee of Merck
and in 2016 his gross earnings were $105,854.
Hearing Officer’s Order, 2/4/20, at 3 (record citations omitted).
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5 Our standard and scope of review of a child support order is well-established:
When evaluating a support order, this Court may only reverse the
trial court’s determination where the order cannot be sustained on
any valid ground. We will not interfere with the broad discretion
afforded the trial court absent an abuse of the discretion or
insufficient evidence to sustain the support order. An abuse of
discretion is not merely an error of judgment; if, in reaching a
conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will,
discretion has been abused. In addition, we note that the duty to
support one’s child is absolute, and the purpose of child support
is to promote the child’s best interests.
Sichelstiel v. Sichelstiel, 272 A.3d 530, 534 (Pa. Super. 2022) (citation
omitted).
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Mother intuits that the hearing officer arrived at her assessment by
taking the average of these two figures ($99,783.00) and multiplying it by
0.85 because she had determined, under the circumstances of the case, that
Father had a capacity to earn 85 percent of what he had before.
She notes, however, that the figures used by the hearing officer
represented only Father’s federally taxed income from his W-2 forms rather
than his much higher state and local wage amounts on those forms, which
were $118,518.00 for 2017 and $125,863.00 for 2016. After averaging these
two figures and applying the 85 percent assessment, Mother contends the
hearing officer should have come up with an earning capacity of $104,000.00.
“A person's earning capacity is defined not as an amount which the
person could theoretically earn, but as that amount which the person could
realistically earn under the circumstances, considering his or her age, health,
mental and physical condition and training.” Gephart v. Gephart, 764 A.2d
613, 615 (Pa. Super. 2000). At the time the hearing officer considered this
matter, Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4), which
addresses earning capacity, provided, in pertinent part:
If the trier of fact determines that a party to a support action has
willfully failed to obtain or maintain appropriate employment, the
trier of fact may impute to that party an income equal to the
party’s earning capacity. Age, education, training, health,
work experience, earnings history and child care
responsibilities are factors which shall be considered in
determining earning capacity. In order for an earning capacity
to be assessed, the trier of fact must state the reasons for the
assessment in writing or on the record. Generally, the trier of fact
should not impute an earning capacity that is greater than the
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amount the party would earn from one full-time position.
Determination of what constitutes a reasonable work regimen
depends upon all relevant circumstances including the choice of
jobs available within a particular occupation, working hours,
working conditions and whether a party has exerted substantial
good faith efforts to find employment.
Pa.R.C.P. 1910.16-2(d)(4).6
Contrary to Mother’s assertions, the hearing officer’s earning capacity
determination was not confined to the simple application of a mathematical
formula. Instead, as required by the rule, she considered the enumerated
factors and arrived at an assessment for which Father’s earning history was
but one factor considered among others.
Indeed, the hearing officer detailed how she arrived at her assessment:
At the time of the initial hearing of this matter on March 12,
2018, father testified that after a 25-year career at Merck he was
let go due to company-wide layoffs and reorganization. The
parties stipulated that his separation from Merck was through no
fault of father (N.T. 3/12/18 p 12). At the time of the hearing,
father was 51 years old, in relatively good health, had a Bachelor’s
Degree and a Master’s Degree in Business (N.T. 3/12/18, p 6).
Father has made a good faith effort to secure alternate like-
kind employment without success. He has taken advantage of the
job placement services provided by Merck which assisted him with
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6 Rule 1910.16-2 was recently updated with an expanded list of factors to be
considered. Under the current version, which became effective January 1,
2022, “the trier-of-fact shall consider the party’s: (A) child care
responsibilities and expenses; (B) assets; (C) residence; (D) employment and
earnings history; (E) job skills; (F) educational attainment; (G) literacy; (H)
age; (I) health; (J) criminal record and other employment barriers; (K) record
of seeking work; (L) local job market, including the availability of employers
who are willing to hire the party; (M) local community prevailing earnings
level; and (N) other relevant factors.” Pa.R.C.P. 1910.16-2(d)(4)(ii).
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updating his resume and Linkedln profile (N.T. 3/12/18 p 22 lines
1-25). He has applied to numerous positions that would
accommodate his child care schedule in “analytical and teaching
categories... pharmaceutical sales, sales analyst, and sales
training” (N.T. 3/12/18 p 24-25). Father has not been successful
thus far, despite reasonable and exhaustive efforts in finding
suitable employment. He has attempted to mitigate his
circumstances.
Father’s earnings history has been as a long-time employee
for Merck. He consistently has earned in excess of $80,000 per
year, and last worked as a market analyst for them when he was
let go in late 2017 (N.T. 12/6/18 p 12 line 9). In 2017 he earned
$93,711 as an employee of Merck (exhibit D-1) and in 2016 his
gross earnings were $105,854 (exhibit D-2).
Father’s child care responsibilities, particularly with regard
to [M.B.], who is disabled, impact his ability to earn income.
Additionally, Father has 100% of the parties’ youngest child,
[T.B.], who at the time of the hearing in this matter was 13 years
of age.
Father and mother have 50/50 custody of the parties’ oldest
child, [M.B.]. The parties stipulate that [M.B.] is “severely
autistic, and very disabled, requires consistent care and
supervision and except for family members, he cannot be cared
for by third party caregivers. It is extremely difficult to find any
third party caregivers who are willing and/or capable to care for
him” (N.T. 12/6/18 p 5 line 8).
While at Merck, father had great latitude in work hours and
location. Father testified he worked “full-time hours... from the
morning until early afternoon in which they allowed me to go
home, get my son off the bus, and monitor-any particular help
that I had to with [M.B.] while working from home” (N.T. 12/6/18
p 12 line 16). Father also testified that “Merck made
accommodations for me so that I didn’t have to travel, attend
certain onsite meetings and made extensive accommodations
knowing that at the drop of a hat, I might have to run home or to
the hospital to take care of my son” (N.T. 12/6/18 p 13 line 21).
Further, father has had difficulty finding staff to care for [M.B]
(N.T. 12/6/18 p 15 line 5). Father has even taken additional
custody of [M.B.] when the child was sick even though it was
supposed to be mother’s custodial time (N.T. 12/6/18 p 14 line
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14-21). His job search for similar work environments has been
unsuccessful. Unlike mother who has family support to care for
Michael during her periods of custody, father has none. He has
no family on whom he can rely. Additionally, he has [T.B.] 100%
of the time and must be available for the responsibilities that go
along with being solely responsible for his care. Finally, when
father was able to find third party caregivers the cost per hour
ranged from $25-$50 (N.T. 12/6/18 p 16 line 19) which at this
point is not cost effective and not conducive to his caring for his
sons.
Father must be available during his custodial time to get
[M.B.] on the school bus at 6:20 am and retrieve him from the
bus at 2:25 pm (N.T. 12/6/18 p 19).
Father’s child care responsibilities, particularly as they relate
to [M.B], compromise his ability to work at the same financial level
as when he was employed with Merck. [M.B.] requires much care
and supervision. Father has no family or friends that can assist in
this regard, and mother has, in the past, demonstrated an inability
to be flexible. with help even in emergency circumstances. Father
testified that he was unable to be with his father in Seattle when
he passed away because mother would not care for the children
(N.T. 12/6/18 p 26 lines 15-17). Father is found to be credible in
his testimony regarding his child care responsibilities. Father’s job
search and earning capacity are detrimentally impacted when his
child care responsibilities are taken into account.
Taking into consideration father’s age, education, work
history, prior earnings and child care responsibilities, father is
found to have an earning capacity of $85,000 per year. Father
enjoyed a long and profitable career at Merck. His employer’s
flexibility permitted him great leeway in his work hours so that he
was able to maintain his job while simultaneously caring for his
children. Father has not found suitable employment with such
flexibility. There is no dispute as to the monumental effort it takes
to care for the parties’ oldest child.
Hearing Officer Order, 2/4/2020, at 3-4 (record citations cleaned up).
As noted, we will not interfere with the broad discretion afforded the
trial court absent an abuse of the discretion or insufficient evidence to sustain
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the support order. See Sichelstiel, supra. Indeed, “A reviewing court does
not weigh [earning capacity] evidence or determine credibility as these are
functions of the trial court.” Doherty v. Doherty, 859 A.2d 811, 812 (Pa.
Super. 2004) (citation omitted). Here, as the hearing officer’s considered
discussion shows, she considered not only Father’s earning history but all the
factors outlined in Rule 1910.16-2(d). In particular, the hearing officer
focused on Father’s child care responsibilities relating to M.B. and the difficulty
Father had in finding employment that can accommodate the need for him to
be available to attend M.B.’s needs, not to mention that Father also has 100
percent custody of the younger son, T.B.
Mother ignores this analysis, instead alleging that the hearing officer
arrived at her earning capacity assessment by applying a mathematical
formula—though implicitly—based on averaging Father’s earnings history and
then simply determining that it could be 85 percent of that history. Besides
this proposition being belied by the hearing officer’s own discussion, this Court
has held that past earnings alone cannot support a determination of earning
capacity without corroborating evidence that the party still has the capacity to
earn that amount. See D.H. v. R.H., 900 A.2d 922 (Pa. Super. 2006) (holding
trial court erred in determining earning capacity based solely on party’s most
recent tax return).
There is no requirement in Rule 1910.16-2(d) that a party’s earning
capacity must be adjusted to reflect the enumerated factors, including earning
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history; instead, the rule requires only that the factors “shall be considered in
determining earning capacity.” The hearing officer needed to do no more than
consider Father’s earning history in determining earning capacity, and she did
that along with considering all the other factors. This Court will not, as Mother
seems to ask, substitute the hearing officer’s considered determination with
the mechanical application of a formula for determining earning capacity that
is not grounded in either statute or case law. Like the trial court, we find no
abuse of discretion in the hearing officer’s earning capacity determination.
B.
Mother also claims that the trial court miscalculated Father’s earnings
for 2018 by not combining his actual earnings, investment income and earning
capacity, which, as discussed, she believes should have been $104,000.00.
Adding these together, she asserts that the hearing officer should have
imputed an income of $252,711.00 for 2018 for Father, rather than just his
actual income for that year ($146,649.00), which is what was used.
The trial court addressed this complaint in its Pa.R.A.P. 1925(a) opinion:
Here, Mother has repeatedly taken issue with the
determination of Father’s earning capacity to the extent that she
believes that Father’s 2018 income findings should combine
Father’s imputed earning capacity of $85,000 in addition to the
$146,649 actual he earned as Merck severance (resulting in a total
figure of $231,649—a much higher figure than Father has ever
earned). However, Mother’s assertion is misplaced as Pa.R.C.P.
1910.16-2(d)(4)(i)(A)(I) makes clear that the Officer shall not
impute to the party an earning capacity that exceeds the
amount the party could earn from one full-time position. In
combining both Father’s earning capacity with his actual wages
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and dividends, the court would effectively be imputing an earning
capacity exceeding one full-time position.
While it may be argued that Father was not “working” to
receive the $146,649 for the 2018 year (as it was partially based
on his receipt of severance), this argument fails to consider that
three (3) vital factors that were specifically considered in the
Officer’s February 4, 2020 Order:
(1) The parties stipulated that Father’s separation from his
prior job at Merck was through no fault of his own;
(2) Father’s child care responsibilities exponentially increased
when he was awarded one hundred (100%) full custody of
the parties youngest child, [T.B.], and shared the custody of
the holder child, [M.B.] (who is severely autistic and
disabled); and
(3) That the Hearing Officer’s analysis of Father’s earning
capacity considered whether Father could obtain employment
remotely close to what he earned previously at Merck.
The consideration of the aforementioned three (3) points all
support the Officer’s finding for Father’s earnings for 2018 as
being based solely on his actual wages and dividends. Namely,
because it was agreed upon that Father’s separation was
involuntary, the Officer did not impute an earning capacity in
addition to his actual income for 2018; because Father would have
increased child care responsibilities, the Officer did not assign an
amount that would effectively prevent Father from fulfilling these
responsibilities; and lastly, because Father was making good faith
efforts to obtain other employment, to no avail, the Officer did not
assign an earning capacity in addition to what Father earned as
severance from Merck.
Trial Court Opinion (TCO), 2/18/22, at 15-16 (emphasis in original, footnotes
omitted).
We find no error with this analysis. Mother cites no statute, rule or case
law for her proposition that both Father’s actual income and earning capacity
should have been imputed to him, especially given Rule 1910.16-2(d) stating
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that the trier-of-fact, “shall not impute to the party an earning capacity that
exceeds the amount the party could earn from one full-time position[.]”
Pa.R.C.P. 1910.16-2(d)(4)(i)(A)(I). Consistent with that rule, the hearing
officer used Father’s 2018 actual income for calculating support, which, in fact,
exceeded his earning capacity. As the hearing officer found, Father made
good-faith efforts in 2018 to find employment after being involuntarily
terminated, but could not find employment that was both comparable to what
he had with Merck and conducive to his increased child care responsibilities.
As Mother cites no authority to the contrary, we find no error with Father’s
actual income for 2018 being used rather than his combined actual income
and earning capacity.
III. Deviation from Guidelines
In her second issue, Mother raises three complaints with the deviation
determinations for the guidelines. The first two focus on the deviation in her
favor, as she asserts it was too low because of the hearing officer’s
misapplication of the deviation factors under Pa.R.C.P. 1910.16-5; the third
focuses on the deviation against her after Father took full custody of the
younger son.
“[T]he support guidelines set forth the amount of support which a
spouse or parent should pay on the basis of both parties’ net monthly incomes
... and the number of persons being supported.” Pa.R.C.P.1910.16–1(a).
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There is a rebuttable presumption that the guideline amount of child support
is the correct amount. Pa.R.C.P.1910.16–1(d).
That said, “a court generally has reasonable discretion to deviate from
the guidelines if the record supports the deviation.” Silver v. Pinskey, 981
A.2d 284, 296 (Pa. Super. 2009). Rule 1910.16–5 addresses deviation from
the guidelines as follows:
(a) Deviation.
(1) The trier-of-fact may deviate from the basic child support,
spousal support, or alimony pendente lite obligation.
(2) If the trier-of-fact determines a deviation is appropriate based
on the factors in subdivision (b), the trier-of-fact shall specify on
the record or in writing:
(i) the calculated basic child support, spousal support, or
alimony pendente lite obligation;
(ii) the reason for the deviation;
(iii) the findings of fact justifying the deviation;
(iv) the deviation amount; and
(v) in a spousal support or an alimony pendente lite action,
the obligation’s duration.
Note: The deviation applies to the amount of the support
obligation and not to the amount of income.
(b) Factors. In deciding whether to deviate from the amount of
support determined by the guidelines, the trier of fact shall
consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
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(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) standard of living of the parties and their children;
(8) in a spousal support or alimony pendente cite case, the
duration of the marriage from the date of marriage to the date of
final separation; and
(9) other relevant and appropriate factors, including the best
interests of the child or children.
Pa.R.C.P.1910.16–5.
A.
Mother first argues that the hearing officer erred in addressing only “the
relative assets and liabilities of the parties” under subsection (b)(5).
According to Mother, the hearing officer should have also considered the
“unusual needs” fact under subsection (b)(1), as well as the catchall factor
under subsection (b)(9), which directs the trier of fact to consider “other
relevant and appropriate factors.” Mother asserts that the other factor here
is the extraordinary measures that her family members have to take in helping
take care of M.B. and his needs while Mother maintains full-time employment
and supports her children from her second marriage. She contends the
hearing officer’s failure to account for her family’s caregiving efforts effectively
results in her family subsidizing Father.
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We first note that the factual basis for Mother’s contention rests on a
brief exchange during Father’s testimony at the remand hearing.
[Q]: Who helps [Mother] care for [M.B.] when he’s in her custody?
[Father]: Her father, her grandmother, her husband, and at times
I’ve heard of cousins.
[Q]: Her father, Mr. Fonash, her attorney?
[Father]: Yes.[7]
[Q]: You don’t have anybody that can help you like that?
[Father]: No.
N.T., 12/6/18, at 16. Mother objected to this testimony on hearsay grounds
but the hearing officer overruled her, stating that the evidence was relevant
and that Mother could testify on the matter when it was her turn. Id. Mother
did not seek to develop any evidence at the remand hearing in support of her
contention that deviation was proper under subsections (b)(1) and (b)(9)
based on her family’s caregiving efforts. During her testimony, Mother was
not asked about her family members’ efforts in helping taking care of M.B.
while she worked, nor did she present any of her family members to testify
about such efforts.
In any event, as this Court has explained, “Rule 1910.16–5(a) requires
only that the trial court specify in writing or on the record the guideline amount
____________________________________________
7 Mother’s father is an attorney and has served as her counsel throughout
these proceedings.
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for support and its reasons and factual justification for the amount of the
deviation.” E.R.L. v. C.K.L., 126 A.3d 1004, 1009 (Pa. Super. 2015). See
also Silver v. Pinskey, 981 A.2d 284, 296 (Pa. Super. 2009) (in child-
support, once court has properly consulted guidelines, it may deviate from
guideline figure, as long as court provides adequate reasons for deviation).
After the second remand, the hearing officer explained her factual
justification for her 20 percent deviation in Mother’s favor. While focusing on
the relative assets of the parties, the hearing officer complied with Rule
1910.16–5(a) by explaining, as directed by the trial court, her factual
justification for the 20 percent deviation. See Hearing Officer Order, 2/4/20,
a 2-3 (quoted below). We will not find that the trial court abused its discretion
by failing to discuss deviation factors for which, as noted, Mother failed to
develop evidence. See E.R.L., supra (holding no abuse of discretion in trial
court’s consideration of deviation factors where it stated it considered all
relevant factors and discussed its reasons for deviation).
B.
Mother next contends that the hearing officer misapplied the deviation
factor under subsection (b)(5) by failing to give a larger deviation in her favor
based on Father’s net worth exceeding hers by over two million dollars. She
believes that this vast disparity alone compels a 100 percent deviation. In
support of her argument, she cites four cases: J.P.D. v. W.E.D., 114 A.3d
887 (Pa. Super. 2015); E.R.L., supra; Colonna v. Colonna, 855 A.2d 648- 22 -
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(Pa. 2004); and Suzanne D. v. Suzanne W., 65 A.3d 965 (Pa. Super. 2013).
In Mother’s view, these cases involve similar factual scenarios where the
parents’ disparity in assets warranted a higher deviation than that given in
this case.
Before reviewing those cases, however, we first look at the hearing
officer’s analysis. As noted, she agreed that a deviation was warranted based
on Father having more assets than Mother. Based on this disparity, she
applied a 20 percent deviation in Mother’s favor. In so doing, though, the
hearing officer clarified that she would not consider any of Father’s assets part
of the parties’ divorce and equitable distribution. As she explained:
There is no dispute that father has a much higher net worth than
mother. As a result of this disparity there will be a 20% deviation
in the support calculations in these matters.
Father continued to work for an additional 8.5 years after Divorce.
Any of the assets that originated as a result of his employment at
Merck have values that include assets he received in Equitable
Distribution. The current value of his stock options and 401k
include: funds left after Divorce; increase in value of funds left
intact after Divorce, and contributions made to these funds after
Divorce.
No deviation due to these funds will be considered. To do so would
result in “double dipping” by mother. Mother received 60% of the
value of these assets in Divorce. Husband’s retained portion
constitutes an asset that was considered in Equitable Distribution.
Additionally, when support was calculated after separation,
father’s income took into consideration his gross income less taxes
only. The funds he contributed to these assets were factored in
as income available for support. The fact that he saved this
money and did not squander it is of no consequence. It would be
improper to have used that income as income available for support
in the past, and now claim that those same funds should alleviate
a portion of mother’s support obligation by deviating in her favor.
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Father inherited a substantial amount of money from his father,
Joseph Borichewski. A review of the Estate documents show that
he was to receive $856,864.94. The Estate has net assets of
$2,570,594.82 and father was a one-third beneficiary. Father
owed $31,794 in taxes as a result of the receipt of some of these
funds, and paid off the mortgage on his home.
Father has reduced living expenses because he was able to pay
off his mortgage from his inheritance. He has $70,476.12 in his
Bank of America Checking account and $158,890.52 in his Bank
of America Savings account. However, he is currently
unemployed despite an exhaustive, diligent job search and has
been held to an earning capacity of $85,000 per year. The liquid
assets he has are sustaining him during what has turned out to be
long-term unemployment, as well as assisting in the payment of
his significant legal fees which totaled $105,000 for 2017 and
2018. This liability is one which mother has not incurred.
Father’s separate non-marital assets as outlined above are
significantly greater than mother’s; therefore the 20% deviation
is appropriate in the calculation of support. The existence of
separate significant assets by a parent does not alleviate the
obligation of the other parent to support their child. Mother’s
position is that she should receive a 100% deviation due to
father’s assets. The support of a child is a parent’s paramount
responsibility; and in this particular case one cannot overlook that
father has 100% custody of the child Tyler and 50% custody of
the child Michael. Mother has an obligation to provide for the
support of these children according to her net income available for
support despite father’s separate assets. …
Hearing Officer’s Order, 2/4/20, at 2-3 (record citations omitted).
With this analysis in mind, we find that none of the cases cited compel
disturbing the hearing officer’s determination. First, in J.P.D., a trial court
applied a 100 percent deviation against a father and increased his support
payments because all his expenses were paid by his new wife, who earned
nearly one million dollars in annual net income. J.P.D., 114 A.3d at 890-91.
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On appeal, this Court affirmed the trial court’s deviation determination
because it was supported by record evidence that all of father’s income was
available for child support. Id. at 891. Unlike J.P.D., Father here does not
have another source of income to rely on for paying his expenses; instead, as
the hearing officer highlighted, he has had to rely on his liquid assets while he
unsuccessfully sought comparable employment after his involuntary
termination.
Second, in E.R.L., the trial court deviated from the guidelines because
the father not only had an earning capacity of $76,000, but also had access
to around $600,000 from an inheritance that he received while litigation was
pending. See E.R.L., 126 A.3d at 1006. The father challenged the extent of
the deviation on appeal but this Court affirmed, finding that the trial court was
within its discretion in applying the deviation to ensure that the children had
an appropriate level of financial support. Id. at 1009-10. We fail to see how
E.R.L. supports disturbing the hearing officer’s determination here, not to
mention that the upward deviation in E.R.L. was just over 40 percent, which
is not exponentially higher than what was applied here.
Third, in Colonna, our Supreme Court held that a trial court abused its
discretion by failing to determine whether a deviation from the support
guidelines is appropriate where the father’s monthly income was about
$193,000.00 and the mother’s was $55,000.00, even if deviation resulted in
the father, who had primary custody of the children, being ordered to pay the
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mother with partial custody. See Colonna, 855 A.2d at 652. Again, we do
not find that Colonna helps Mother’s argument because (1) the hearing officer
here applied a deviation because of Father’s net assets, and (2) the Colonna
Court’s holding was limited to finding that “it is an abuse of discretion for the
trial court to fail to consider whether deviating from the support guidelines,
even in cases where the result would be to order child support for a parent
who is not the primary custodial parent.” Id. Indeed, the Court stated
nothing about what percent of deviation should be applied when the parents’
incomes differ significantly.
Finally, in Suzanne D., the trial court applied an upward deviation to
the father’s support obligation because of regular gifts from the grandfather.
See Suzanne D., 65 A.3d at 968. This Court found that the trial court did
not abuse its discretion in deviating upward because, “[t]he record reflects
that Father's monthly income is almost doubled by Grandfather's gifts,” which
was “in addition to the expenses for the Children that Grandfather pays or
reimburses.” Id. at 973. Because there was no indication in the record that
grandfather’s gifts would cease and because gifts are an appropriate factor to
consider whether to deviate, this Court held that the trial court did not abuse
its abuse of discretion in the trial court’s determination that a deviation was
warranted. Id. Again, like the above cases, Suzanne D. does not compel a
different result here, as this Court merely held that the trial court did not
abuse its discretion where there was evidence supporting deviation, which
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Mother observes was only 32 percent from the guidelines based on one party’s
assets.
Like we did with the hearing officer’s earning capacity assessment, we
find no error in her determination of a 20 percent deviation in Mother’s favor
based on Father having a higher net worth than Mother. Indeed, “a 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, 82 (Pa. Super. 2005). As the above discussion shows, the hearing
officer considered the disparity in assets and found that a deviation based on
the disparity was appropriate. In so doing, however, the hearing officer
explained why that disparity did not warrant the higher deviation sought by
Mother, noting Father’s assets that were part of the equitable distribution in
2009 as well as Father relying on his liquid assets as he could not find new
employment while also retaining 50 percent custody of the older son and 100
percent custody of the younger son.
Mother fails not to address these points in her argument but, as
reviewed above, also cites no case law that the hearing officer committed an
abuse of discretion here by applying a 20 percent deviation in her favor. Like
the earning capacity, determination of the proper percentage for deviation
because of a disparity in the parents’ assets cannot be reduced to a simple
mathematical formula, and we decline to establish one here as Mother seems
to be requesting. For these reasons, we find no merit with her second
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deviation complaint about the hearing officer’s application of
Pa.R.C.P.1910.16–5(b)(5).
C.
In her final deviation subissue, Mother assails the trial court’s 30 percent
deviation in Father’s favor for the support of the younger son after Father took
over full custody of him. By way of background, the trial court increased the
hearing officer’s upward deviation in Father’s favor from ten to 30 percent
based on an explanatory comment to Pa.R.C.P. 1910.6-4, which provides:
The basic support schedule incorporates an assumption that the
children spend 30% of the time with the obligor and that the
obligor makes direct expenditures on their behalf during that time.
Variable expenditures, such as food and entertainment, that
fluctuate based upon parenting time were adjusted in the schedule
to build in the assumption of 30% parenting time. Upward
deviation should be considered in cases in which the obligor has
little or no contact with the children. However, an upward
deviation may not be appropriate if an obligor has infrequent
overnight contact with the child, but provides meals and
entertainment during daytime contact. Fluctuating expenditures
should be considered rather than the extent of overnight time. A
downward deviation may be appropriate when the obligor incurs
substantial fluctuating expenditures during parenting time but has
infrequent overnights with the children.
Pa.R.C.P. 1910.6-4, (Explanatory Comment 2010).
Mother asserts that the trial court misconstrued the 2010 comment by
ignoring that the comment states that the deviation can either be upward or
downward for the non-custodial parent. Mother contends that the focus
should be on the non-custodial parent’s expenditures for the child, not
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custodial time. This, she believes, is made clear by the explanatory comment
to Pa.R.C.P. 1910.16-1, which provides, in pertinent part:
… the amounts of basic child support were adjusted to incorporate
into the schedule the assumption that the children spend 30% of
the time with the obligor and that the obligor makes direct
expenditures on their behalf during that time. That does not mean
that the entire schedule was reduced by 30%. Only those variable
expenditures, such as food and entertainment, that fluctuate
based upon parenting time were adjusted.
Pa.R.C.P. 1910.16-1 (Explanatory Comment 2010, E. Shared Custody). In
Mother’s view, this comment recognizes that when Father took over 100
percent custody of the younger son, only Mother’s variable expenses such as
food and entertainment for the younger son were affected, yet the trial court
still felt it necessary to increase the upward deviation to 30 percent in Father’s
favor.8
We disagree with Mother’s reading of the explanatory comments to
Rules 1910.6-1 and 1910.6-4 as establishing that the trial court erred in its
deviation determination. As both above explanatory comments recognize, the
____________________________________________
8 Father does not address the merits of Mother’s claim, arguing that she has
waived this issue for raising it for the first time on appeal. Mother, however,
challenged the hearing officer’s initial ten percent upward deviation in her
exceptions to the hearing officer’s February 4, 2020 recommendation. See
Mother’s Exceptions, 2/21/20, at ¶ 13c. Additionally, contrary to Father’s
contentions, Mother included this issue in her Pa.R.A.P. 1925(b) statement,
and the trial court addressed the issue’s merits in its Pa.R.A.P. 1925(a)
opinion. See TCO at 19-22. As Father has failed to cite any analogous case
law showing that Mother needed to do more to preserve this issue, we
conclude we may address its merits.
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amount of basic child support due under the support guidelines assumes that
children spend 30 percent of their time with the obligor and that the obligor
makes direct expenditures on their behalf during that time. Even so, the
explanatory comment to Rule 1910.16-4 notes that a court may make an
upward deviation to basic child support in such cases, stating, “in cases in
which the obligor has little or no contact with the children.” The trial court
has complete discretion to decide whether to grant an upward deviation. See
Morgan v. Morgan, 99 A.3d 554, 560 (Pa. Super. 2014). Indeed, the upward
deviation may not be appropriate where the evidence shows that the non-
custodial parent still makes direct expenditures on the child’s behalf even
though the parent has infrequent overnight custody.
Here, Mother essentially argues that the trial court abused its discretion
in deviating upward in Father’s favor even though she had no parenting time
with the younger son. However, at the remand hearing, Mother stipulated
that Father had 100 percent overnight custody of the younger son (who was
13 at the time of the hearing) beginning on March 25, 2018. See N.T.,
12/6/18, at 4. At that hearing, she presented no evidence that she still had
infrequent overnight contact with the younger son or provided any meals and
entertainment during daytime contact, let alone whether she had any daytime
contact. Likewise, she presented no evidence of any fluctuating expenditures
on the younger son’s behalf that would warrant a downward deviation.
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As there was no evidence that Mother had any expenditures on the
younger son’s behalf, the trial court withdrew the assumption built into the
guidelines that Mother, as the non-custodial parent, was still providing for the
younger son’s living expenses up to 30 percent of the time. Put differently,
the trial court merely deprived Mother of the built-in assumption into the
guidelines that she spent 30 percent of the time with the younger son because,
as she herself stipulated, Father had 100 percent custody of the younger son.
As Mother has cited no case law or evidence to contradict the trial court’s
determination, we will not disturb its deviation determination.
IV. Proof of Health Insurance
Next, Mother challenges the trial court’s procedure for upwardly
adjusting the monthly health insurance premiums from $228.00 to $990.00.
As noted, the trial court’s fourth and final remand directed the hearing officer
to enter her new order “administratively, without the necessity of further
hearings,” and allowed for Father to submit verification of the increased cost
of the children’s health insurance. Based on this verification and over Mother’s
objection, the hearing officer increased the monthly health insurance
premiums. Then, when Mother challenged this procedure in her exceptions,
the trial court requested that Father submit additional documentation verifying
that the health insurance for the children had increased to $990.00. Upon
Father doing so, the trial court was “satisfied that Father is in substantial
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compliance with providing verification of the monthly premiums such that the
Order can be finalized.” Memorandum and Order, 10/11/21, at 4.
On appeal, Mother asserts that this procedure deprived her of the
opportunity to challenge Father’s unauthenticated proof for the increased
health insurance. Father counters that the trial court’s procedure follows the
expedited procedures for the admission of hearsay evidence at support
proceedings under 23 Pa.C.S. § 4342, which provides, in pertinent part:
(a) General rule.--The Supreme Court shall by general rule
provide for expedited procedures for the determination of
paternity and the determination and enforcement of support. The
procedures shall include an office conference; a conference
summary to the court by the hearing officer; an opportunity for
the court to enter an order without hearing the parties; and an
opportunity for the parties to demand a full hearing by the court.
(b) Alternate procedure.--The Supreme Court shall also
provide an alternate expedited procedure which may be adopted
by local rule of the courts of common pleas. The procedure shall
include an office conference; an evidentiary hearing before a
hearing officer who shall be an attorney; a transcript of the
testimony; a report and recommendation to the court by the
hearing officer; and an opportunity for the filing of exceptions with
and argument before the court.
***
(f) Hearsay exception.--For proceedings pursuant to this
section, a verified petition, affidavit or document and a document
incorporated by reference in any of them which would not be
excluded under the hearsay rule if given in person is admissible in
evidence if given under oath by a party or witness.
23 Pa.C.S. § 4342.
Father also cites Pa.R.C.P. 1910.29, which governs evidence in support
matters. Rule 1910.29 provides, in pertinent part:
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(a) Record Hearing. Except as provided in this rule, the
Pennsylvania Rules of Evidence shall be followed in all record
hearings conducted in an action for support. A verified petition,
affidavit or document, and any document incorporated by
reference therein which would not be excluded under the hearsay
rule if given in person shall be admitted into evidence if (1) at
least 20 days’ written notice of the intention to offer them into
evidence was given to the adverse party accompanied by a copy
of each document to be offered; (2) the other party does not
object to their admission into evidence; and (3) the evidence is
offered under oath by the party or witness. An objection must be
in writing and served on the proponent of the document within 10
days of the date of service of the notice of intention to offer the
evidence. When an objection is properly made, the Pennsylvania
Rules of Evidence shall apply to determine the admissibility of the
document into evidence.
Pa.R.C.P. 1910.29(a).
Given that this matter extended over five years with many hearing and
is memorialized in 5800 pages of testimony, we understand the trial court’s
exasperation that led to it resolving the amount of the children’s healthcare
just by Father providing proof without the necessity of a hearing. However,
Mother has a right to challenge the procedure.
Having said all that, we reluctantly vacate and remand because neither
Father’s verification to the hearing officer nor his submittal of new documents
to the trial court met the requirements under Rule 1910.29 for evidence in
support matters. Under Rule 1910.29, which Father tries to rely on, such
verification cannot be admitted unless the other party does not object. The
certified record shows, however, that Mother promptly objected to Father’s
verification by correspondence to the hearing officer dated May 28, 2021. See
Mother’s Exceptions 7/6/21, Exhibit M-3. As a result, the hearing officer could
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not rely on Father’s verification without first having an evidentiary hearing in
which his proof of the increased health insurance premium was properly
authenticated.
The same holds true for the trial court’s procedure after argument on
Mother’s exceptions, as it directed Father’s counsel to provide it with additional
documentation showing that the monthly cost of the health insurance had
increased to $990.00. Again, this procedure failed to satisfy Rule 1910.29
concerning evidence in a support matter, dispensing with the need to give the
adverse party at least 20 days’ notice of the hearsay evidence, thus giving the
adverse party an adequate opportunity to object to the admission of the
evidence.
We find that the trial court erred in allowing the monthly cost of the
health insurance premiums to be adjusted based on hearsay evidence that
was not properly admitted under Rule 1910.29.9
____________________________________________
9 Because the additional documentation submitted to the trial court was not
made part of the certified record, Father filed a supplemental reproduced
record containing the documentation. In response, Mother filed an application
to strike the supplemental record and a portion of Father’s brief, as well asking
this Court to sanction Father for violating the Rules of Appellate Procedure.
Since we grant Mother the relief she seeks on this issue, we deny her motion
to strike as moot, as well as deny her request for sanctions.
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V. Overpayment of Support
In her final issue, Mother asserts that the trial court erred in declining
to address the sizable credit that Father must pay her. As noted, the trial
court ordered that the matter should be addressed in a remand to the hearing
officer in accordance with Pa.R.C.P. 1910.19(g), which provides as follows:
If there is an overpayment in an amount in excess of two months
of the monthly support obligation and a charging order remains in
effect, after notice to the parties as set forth below, the domestic
relations section shall reduce the charging order by 20% or an
amount sufficient to retire the overpayment by the time the
charging order is terminated. The notice shall advise the parties
to contact the domestic relations section within 30 days of the
date of the mailing of the notice if either or both of them wishes
to contest the proposed reduction of the charging order. If either
party objects, the domestic relations section shall schedule
a conference to provide the objecting party the opportunity
to contest the proposed action. If neither party responds to
the notice or objects to the proposed action, the domestic
relations section shall have the authority to reduce the charging
order.
Pa.R.C.P. 1910.19(g)(1) (emphasis added).
Consistent with this rule, a separate proceeding to address this issue of
Father’s payment of the credit was scheduled before Mother filed this appeal.
After quoting Rule 1910.19(g), the trial court explained in its Pa.R.A.P.
1925(a) opinion:
[T]he issue of Mother’s overpayment/credit was to be
addressed in a separate proceeding before Domestic Relations to
determine the appropriate reduction in the charging order (such
that the overpayment ostensibly could be exhausted by the time
the order is terminated).
Seeing that this case had dragged on long enough, the [trial
court] took the initiative to appropriately secure a specific date
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before the Officer, whereby the overpayment could be addressed
pursuant to the Rule, without delay. However, this proceeding
has since been delayed due to Mother’s instant appeal.
As noted in the October 11, 2021 Order, the [trial court]
secured November 17, 2021 for the parties to appear before the
Officer and be afforded the opportunity to present their respective
positions on the issue. This action would not have been
appropriate within the last administrative remand directed by the
undersigned which was focused on very limited and corrective
action items. The overpayment issue requires separate
considerations and findings and should follow the process
set forth in the Rule.
Lastly, given that the amount of credit is so significant in
this matter (over $12,000) and that Mother’s monthly support
obligation for two (2) children is so minimal ($201.01 a month),
the Court believed it was prudent for the Officer to receive
testimony from the parties on Father’s ability to pay a lump sum
at present and the fairness to the minor children with respect to a
potential substantial reduction of the child support Order during
their minority.
TCO at 27 (emphasis added).
After review, we find no error in the trial court’s analysis for its chosen
course of action. While Mother seeks to avoid another remand and have this
Court mold the child support order to have Father reimburse her, we cannot
conclude that the trial court abused its discretion in merely following the
proper procedure as laid out in Rule 1910.19, which calls for further
proceedings where either party objects to the proposed action for addressing
overpayments. That is particularly needed here where, as the trial court aptly
recognizes, there is such a sizable credit that the hearing officer should receive
evidence of Father’s ability to pay such a large amount.
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We, thus, find that the trial court did not err in declining to address the
overpayment issue. Accordingly, on remand, both the health insurance and
the overpayments should be addressed.
Order reversed in part and affirmed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2022
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