Alimony & Spousal Support

Father Was Required To Pay Child Support Even Though He Had Primary Physical Custody

Trial court did not abuse its discretion in holding that father was obligated to pay child support of $1,500 per month to mother even though her custody percentage had been reduced.

Parents married in 2005, separated in 2009, divorced in 2011 and had one child. Father agreed to pay $2,800 a month in child support in the MSA. He filed to modify custody in 2018 and trial court modified custody to give father custody 18 of every 28 days during the school year and every other week during the summer. Father then filed to modify child support arguing it should be terminated because he had primary physical custody. Special master recommended father pay child support of $1,500 per month. He found the guidelines amount would have been $1,900 per month and recommended a 20 percent reduction based on the additional household income from mother’s current husband. Father filed exceptions and trial court denied the exceptions and adopted special master’s order. Father appealed.

Father relied on Colonna v. Colonna, 855 A.2d 648, and Saunders v. Saunders, 908 A.2d 356, to argue child support had to be terminated because he had primary custody of child and mother was able to provide appropriate housing and amenities for child. Court found those arguments were without merit and the evidence supported trial court’s conclusion that without child support from father, mother lacked sufficient assets to provide child with appropriate housing and amenities during her periods of partial custody. Additionally, father’s agreement to pay $2,800 per month in child support showed he and mother contemplated that substantial child support was necessary for mother to appropriately provide for child when they had equal shared custody. Mother’s fixed expenses, such as her mortgage, were not reduced by the reduction in her custody time. Trial court also properly rejected father’s argument that mother’s underemployment was her fault. There was no evidence contradicting mother’s testimony of her efforts to find a new full-time job.

Father’s argument that trial court failed to consider the Pa. R.C.P 1910.16-5 (b) deviation factors was waived and also failed on the merits. The only factor father pointed to was “other income in the household” and that income was subject to a support obligation for mother and second husband’s child. Colonna did not hold that the presence of a single factor supporting a downward deviation precluded child support to a lower income parent with partial custody.

Trial court also properly allocated child’s private school tuition to father because father was the one who wanted child to attend the private school and the expense was de minimis in comparison to father’s income. Additionally trial court did not err in using father’s 2018 earnings because it was not an abuse of discretion to base child support calculations on the most recent actual income for that year was non-recurring items and future income would be lower.

Ref: Digests of Recent Opinions, Pennsylvania Law Weekly, 423 PLW 157, Tuesday, February 18, 2020, T.M.W V. N.J. W., PICS Case NO. 20-0166 (Pa. Super. Jan. 31,2020)

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