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Shared Custody May Mean Shared Confusion in Calculating Child Support
Increasingly, the family courts are granting shared custody to separated or divorced parents who demonstrate their willingness to cooperate in their children's best interests and share child-raising responsibilities. Authorized by statute "when it is in the best interests of the child," shared custody is defined as "shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with and physical access to both parents." Shared legal custody, or the right to make major medical, educational and religious decisions affecting the child, is frequently provided in a custody order awarding primary physical custody to one parent and partial custody to the other parent. Less commonly, in what we will refer to as a shared custody order, the parents share primary physical custody, and the children spend nearly equal time with each parent. Over the past sixteen years, the frequency of shared physical custody orders has tripled to 14.4% of all Pennsylvania cases in 1991, up from just 3.6% in 1975.
Shared physical custody creates a dilemma for the domestic relations practitioner in calculating child support. Because the Pennsylvania Supreme Court Support Guidelines do not specifically address how to calculate child support in shared custody situations and decisional law is sparse, even the hearing officers and trial judges have expressed uncertainty. The judges of the Court of Common Pleas of Allegheny County, Family Division, who have been visionary in the development of family law in Pennsylvania, have cultivated an aversion to any formulistic approach that reduces custodial time to a pocketbook issue. Nevertheless, none of the three alternative approaches for calculating shared custody child support orders -- the "offset formula" approach, the "downward deviation" approach and the "Melzer needs analysis" approach -- has emerged as the predominant method. Shared custody, therefore, may mean shared confusion in calculating child support.
"Offset Formula" Approach
The Pennsylvania Rules of Civil Procedure provide an offset formula approach in two situations similar to shared custody. Where custody of two or more children is divided or split between the parents, Rule 1910.16-5(h) requires the trial court to first calculate each parent's child support obligation to the children not living with him or her. The mutual obligations are then offset, with the obligor paying the difference to the dependent parent. Similarly, Rule 1910.16-5(j) provides a formula, developed by the Honorable Eugene B. Strassburger, III, for offsetting child support against spousal support/alimony pendente lite where the custodial parent owes spousal support/alimony pendente lite to the non-custodial parent. Spousal support/alimony pendente lite is added to the dependent spouse's income and subtracted from the obligor's income, and child support is calculated from the parents' recomputed incomes. The custodial's spousal support/alimony pendente lite obligation is then reduced by the child support amount. This same approach is dictated by Rule 1910.16-5(h) where custody of two or more children is divided or split during the pendency of divorce litigation.
Consistent with Rules 1910.16-5(h) and (j), an offset formula method might be developed for shared custody situations. Where the parents are still married, spousal support/alimony pendente lite would be added to the dependent spouse's income and subtracted from the obligor's income. Based upon the recomputed incomes, the non-primary custodial parent would owe a percentage of the Guideline child support amount to the primary custodial parent.
Example - The parents have one child. Mother has 55% shared custody and $4000 net monthly earning capacity. Father has 45% shared custody and $1000 net monthly earning capacity.
Calculate spousal support/alimony pendente lite.
Under the Support Guidelines grid for spouse only, Mother owes Father spousal support = $1200
Recompute the parents' incomes.
Mother's income: $4000 - $1200 = $2800
Father's income: $1000 + $1200 = $2200
Calculate Father's child support obligation.
Under the Support Guidelines formula for one child:
(i.e. if Wife had primary custody, Husband would owe $297 per month.)
Multiply Husband's child support amount by the percentage of non-custodial time.
Father owes child support = $297 x .55 = $163
Offset child support against spousal support.
Mother owes $1200 - $163 = $1036
In Depp v. Holland, the Superior Court recently affirmed a shared custody support order entered by the Honorable Cynthia A. Baldwin,in which Judge Baldwin calculated child support using a variation of this offset formula method. Without explicitly endorsing the method, the Superior Court carefully examined the offset formula and held that its application was not an abuse of discretion.
"Downward Deviation from Support Guidelines" Approach
Alternatively, as a less formulistic approach, the trial court might grant a downward deviation from the Guideline to the non-primary custodial parent. Rule 1910.16-5(m) provides for a downward deviation where the non-custodial parent spends "an unusual amount of time" with the child. In Allegheny County, the Honorable Max Baer, A.J., granted a 20% downward deviation from the Guideline child support amount where a non-custodial parent spent 132 days per year with the child in Coulter v. Coulter. In Hitt v. Keller, Judge Baer found that 84 days per year with the non-custodial parent was not an "unusual amount of time" and refused to deviate from the Guidelines or suspend child support during an obligor's ten week summer vacation. Interestingly, Judge Baer noted that in a frequently-ordered arrangement in which the non-custodial parent exercised partial custody every weekend and four weeks during summer vacation, the non-custodial parent would spend 132 days with the children. Although he declined to label this arrangement as a "typical" partial custody order, Judge Baer used this standard of comparison to determine whether 84 days was an "unusual amount of time." Elsewhere, in Moist v. Moist, the Dauphin County trial court held that a shared custody order in which Father exercised custody 45% of the children's time constituted an "unusual amount of time" under Rule 1910.16-5(m).Instead of granting a deviation from the Guidelines, however, the court followed the local practice of offsetting the parent's respective child support obligations.
Two panels of the Superior Court have refused to grant downward deviations in shared custody cases in light of the non-primary custodial parent's direct expenditures for the benefit of their children. In Seawalt v. Muldoon, the children spent four nights per week in their primary residence with Father and three nights per week with Mother. In calculating Father's child support obligation, the trial court doubled Mother's earning capacity and gave Father credit for direct expenditures on behalf of the children, arriving at a child support award less than half of the Guideline amount. Finding that the Support Guidelines were properly applied, the Superior Court affirmed the trial court's failure to deviate downward because the court had already taken into account Father's direct expenditures on behalf of the children.
In Dalton v. Dalton, the Superior Court affirmed the trial court's refusal to deviate downward to compensate for direct expenditures made by the non-primary custodial parent during his custodial periods. However, rather than deciding whether Father's 156 custodial days per year was an "unusual amount of time," the Court found that Father's direct expenditures subsidized non-essentials, such as video games, cable TV and toys, and therefore did not justify downward deviation under Rule 1910.16-5(m).
The foregoing demonstrates that the application of Rule 1910.16-5(m) has been fact-specific and inconsistent in shared custody cases, partly because the "abuse of discretion" standard of appellate review necessitates subjective analysis of a myriad and disparate variety of family circumstances. The domestic relations practitioner must therefore exercise caution in citing these cases. It seems that the likelihood of finding these cases to be "on all fours" is slight.
"Melzer Need Analysis" Approach
A Melzer needs analysis is an assessment of the children's reasonable needs and the parent's respective abilities to pay. In two Superior Court decisions prior to the adoption of statewide Support Guidelines, the Court held that a Melzer needs analysis was necessary in shared custody cases where the county guidelines, like the subsequent statewide Support Guidelines, provided a method for calculating support in divided custody situations but did not contemplate shared custody. In Funk v. Funk, the Superior Court stated, "We recognize that the child rearing expenses in a shared custody setting vary from those in the sole custody setting, and, consequently, the formula for shared custody support determinations will not be identical to that envisioned in Melzer, supra. ...[W]e firmly believe that the lower court must make flexible application of a Melzer type formula allowing for those anomalies inherent in shared custody arrangements. . ." Thus, as an alternative to the offset formula method or the downward deviation method, a Melzer needs analysis might be another method for determining child support in shared custody situations. However, since the adoption of statewide Support Guidelines and the 1993 Amendments to Rule 1910.16-5, which replaced former language providing that the grids were "merely a starting point" with language that the grids establish "a rebuttable presumption" for the proper amount of support, the Pennsylvania appellate courts have demonstrated an increasing reluctance to mandate a Melzer formula except in extraordinary circumstances or where the parties' combined net monthly incomes exceed $10,000. Also, it is not insignificant that the statewide Support Guidelines were promulgated to promote consistency and expediency in the calculation of support orders.
Nevertheless, an informal application of the Melzer needs analysis may be the most appropriate way to resolve the confusion over how to calculate shared custody child support orders. Domestic relations practitioners have become "income driven" as a result of the promulgation of the Support Guidelines. In support litigation, the practitioner must emphasize the economic impact of the shared custody order on the obligor's budget. Conversely, if there is little economic impact because fixed expenses dominate the parents' budgets, then the seeming trend toward refusing any deviation from the Support Guidelines is appropriate. Certainly, dividing the Guideline child support amount by the percentage of custodial time would rarely effectuate economic justice. Each case must stand on its own merits.
Although a formulistic approach produces consistent, predictable results, it also may encourage litigants to improperly associate custodial time with child support. Because the percentage of custodial time would be a factor in calculating child support, parents might become more vigorous in custody litigation because of the potential economic impact. Moreover, the expenses attendant to raising children are largely fixed whether a parent exercises custody 50% or 80% of the time. Housing costs, utilities and transportation expenses probably do not fluctuate greatly with the percentage of custodial time.
In the authors' viewpoint, the starting point for calculating a shared custody support order must be the Support Guidelines grids and Rule 1910.16-3 formula. Thereafter, like Judge Baer in Coulter, the trial court must determine whether an adjustment is warranted, applying a flexible Melzer needs analysis to focus upon the parents' respective incomes and proportionate childraising expenses and the children's needs. Obviously, cases involving combined net monthly incomes in excess of $10,000 per month will produce different results from cases in which the parents earn more modest incomes. Likewise, cases involving fixed and longstanding expenses will produce different results. This subjective approach produces less consistent and predictable resolutions, but perhaps a more facile or expedient approach is inappropriate in this unique intersection of support and custody concerns.
A couple can come to their own agreement about property settlement, which the court will generally accept. The Pennsylvania court will decide if either spouse is entitled to alimony, based on age, physical and mental condition, earning potential, duration of the marriage and standard of living. The court decides the duration of alimony, but support ends automatically if the one receiving it remarries or cohabits.
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