Description of the need for and general characteristics of

a child support guideline,

as described by

The Supreme Court of the State of Pennsylvania

Excerpts from MELZER v. WITSBERGER, Supreme Court of Pennsylvania,

505 Pa. 462; 480 A.2d 991

July 13, 1984

Opinion written by Justice Rolf Larsen

Mr. Justice Zappala and Mr. Justice Papadakos join this Opinion.

Mr. Justice Flaherty and Mr. Justice McDermott join this Opinion and Mr. Justice Flaherty files a separate Concurring Opinion which Mr. Justice McDermott joins.

Mr. Justice Hutchinson files a Concurring Opinion.

Mr. Chief Justice Nix files a Dissenting Opinion.

(begin excerpts)

The fundamental requirements of child support are clear.

In the matter of child support we have always expressed as the primary purpose the best interest and welfare of the child... . Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability. Conway v Dana, 456 Pa 536, 540, 318 A2d 324, 326(1974). See also Costello v LeNoir, 462 Pa 36, 40, 337 A2d 866, 868 (1975) ("[E]very parent has a duty to support his or her minor children ... in accordance with the parents' respective abilities to pay....").

Nevertheless, we have never established an orderly method for the calculation of support awards. Rather, our courts have been guided by numerous general principles created by our appellate courts. While there is no shortage of case law announcing these principles, there is a total lack of organization with respect to how these principles interact and how they should be applied in order to arrive at an appropriate award of support.

We have concluded that in order to clarify the application of the case law in this area, it is necessary to set forth a guideline -- a kind of checklist -- to assist hearing courts in child support cases. The purpose of such a guideline is not to divest a hearing court of its authority or discretion to consider all the relevant facts and circumstances in each case, since the resolution of each case must still be based upon those facts and circumstances; rather, its purpose is simply to pro-vide the hearing court with a method for organizing and considering those facts and circumstances in an orderly fashion. We therefore direct that in the future, child support awards should be calculated based upon the following guidelines.

In order to define the support obligation of each parent, a court must first determine the needs of the children: (This determination, as well as the determination of the parents' respective abilities to pay support, must be made as of the time at which support payments are sought. Costello, supra at 40, 337 A2d at 868.) a court has no way of arriving at a reasonable order of support unless it knows how much money is actually required to care for the children involved. Thus, the Superior Court has held that "for purposes of determining whether the rule of Conway v Dana was satisfied it is necessary to know the expenses entailed in child support." Downie v Downie, _ Pa Super _, 461 A2d 293, 294(1983). See also Com ex rel Lyle v Lyle, 248 Pa Super 458, 375 A2d 187, 189 (1977).

We agree with the Superior Court, with the proviso that parents are legally obligated to provide only for the reasonable expenses of raising their children. See Tubb v Middlebrooks, 379 So2d 1272, 1274 (Ala Civ App 1979) (emphasis added) ("It is the rule that the amount of support a parent may be required to pay is to be determined by the reasonable needs of the children and the reasonable ability of the parent to pay.").

This is not to say that children are entitled only to the bare necessities; parents do have an obligation to share with their children the benefit of their financial achievement. See Conway, supra at 538, 318 A2d at 325 ("station in life of the parties" is relevant in determining parents' capacity to support their children). Thus, where the parents' incomes permit, it may be perfectly proper for a court to recognize that certain expenditures for recreation, entertainment, and other nonessential items are reasonable and in the best interest of the children. See Spignola v Spignola, 91 NM 737, 580 P2d 958, 964(1978) ("Where the income, surrounding financial circumstances and station in life of the father demonstrates an ability on his part to furnish additional advantages to his children above their actual needs, the trial court should provide such advantages within reason.").

Nevertheless, neither parent should be obligated to pay for "extras"--those items which go beyond what is reasonably necessary for the children's welfare--in which that parent does not concur. Neither parent should be permitted to increase the parties' support obligations by unilaterally indulging the children in things which are not reasonably necessary for their well-being. o6=I1 that in each case the hearing court must first calculate the reasonable expense of raising the children involved, based upon the particular circumstances--the needs, the custom, and the financial status--of the parties. See Bethea v Bethea, 43 NC App 372, 258 SE2d 796, 799(1979) ("What constitutes necessities depends upon the facts and circumstances of the particular case. They include food, clothing, lodging, medical care and proper education. They are not limited to those things which are absolutely necessary to sustain life, but extend to articles that are reasonably necessary for the proper and suitable maintenance of the child in view of his social station in life, the customs of the social circle in which he lives or is likely to live and the fortune possessed by him and his parents.").

The court must next determine, as a matter of fact, the respective abilities of the parents to support their children. This Court has held that "[e]ach parent's ability to pay is dependant upon his or her property, income and earning capacity. . . ." Costello, supra at 40, 337 A2d at 868. In arriving at the amount which a parent can contribute to the support of his or her children, the court must "make due allowance for the reasonable living expenses of the parent." Id (emphasis added).

Thus, a parent may not voluntarily decrease his or her ability to provide child support by making unreasonable or unnecessarily large expenditures for his or her own benefit. Cf. Weiser v Weiser, 238 Pa Super 488, 362 A2d 287, 288(1976) ("It is undisputed that a father or husband cannot intentionally reduce his actual earnings and then use the reduction in earnings to obtain a reduction in the amount of support he must provide for his family."). See also Henderson v Lekvold, 95 NM 288, 621 P2d 505, 509(1980) (Duty of support is not decreased "when a parent voluntarily assumes an excessive financial burden only for ... his convenience and investment."); County of Stanislaus v Ross, 41 NC App 518, 255 SE2d 229, 232(1979) ("[Father]) may not avoid his duty to support his minor children simply by spending all of the money he earns.").

Once the court has determined the reasonable needs of the children and the amount of each parent's income which remains after the deduction of the parent's reasonable living expenses, it must calculate each parent's total support obligation in accordance with the following formula:

Assume that parent A has $15,000/year available for support, that parent B has $5,000/year available for support, and that it costs $6,000 to support that couple's child for one year. The parents' total annual support obligations would be calculated as follows:

Parent A's total support obligation = 15,000 / 15,000 + 5,000 X 6,000 = $4,500

Parent B's total support obligation = 5,000 / 15,000 + 5,000 X 6,000 = $1,500 With a total of $20,000 available for child support, parent A is obligated to provide 75% of the support required ($4,500) and parent B must provide the remaining 25% ($1,500).

Mother's total support obligation = Mother's income available for support / Mother's income available for support + Father's income available for support X Child(ren)'s needs

Father's total support obligation = Father's income available for support / Mother's income available for support + Father's income available for support X Child(ren)'s needs

We note at this point that the amount of time a parent spends with his or her children has no bearing on the parent's obligation of support. Even a parent who never sees his or her children has a duty to support those children to the best of his or her ability.

We also note that a parent's total support obligation is not the equivalent of an award of support entered against that parent. Each parent's total support obligation includes support provided directly to the child, as well as support which is paid to the other parent for the child's benefit.

Once each parent's total support obligation has been defined, the court must determine what portion of that obligation may be offset by support provided directly to the children, and what portion of the support obligation must be satisfied by way of support payments to the other parent. It is clear that at least some portion of both parents' total support obligations may be fulfilled by the provision of support directly to the children. As the Supreme Court of Oregon has noted: child support itself may take forms other than direct monetary contribution [to the custodial parent]. It may take the form of payments for medical care . . ., life insurance in the child's name on a parent's life ..., a trust for the child's education ..., or hospital, medical or dental insurance. All such forms of indirect support must be included in determining the just and proper contribution of a parent toward the support and welfare of the child. Smith v Smith, 290 Or 675, 626 P2d 342, 344 (1981).

As with the other elements of child support, a parent may receive credit against his or her support obligation only for those expenditures which actually satisfy the obligation of reasonable and necessary support; a parent should receive no credit for making voluntary payments for those "extras" which do not constitute support in the first place. (We emphasize that any credit for support provided directly to the child must be based upon the figures submitted to the court at the time of hearing, and may be calculated only by the hearing court in arriving at an award of support. A parent is never permitted to unilaterally reduce a court-ordered support payment in order to compensate him or herself for expenditures on behalf of a child.) See Prescott v Prescott, 284 Pa Super 430, 426 A2d 123, 125(1981) ("[The father] should not have been given credit for these expenditures for nonessential items .... The fact that [the father] chose to purchase luxury items for his sons does not change the fact that he had a court-ordered obligation to contribute to their basic support and welfare first, which he failed to do."); Shapera v Levitt, 260 Pa Super 447, 394 A2d 1011, 1014(1978) ("Gifts to the son . . . are, of course, welcomed by the son and may contribute to his happiness and well-being; but they cannot be made a substitute for a fair contribution to the custodial parent for basis support.").

For example, if a parent does not normally spend money on his or her child, the parent will receive no credit for support provided directly to the child. If the parent is then ordered to pay $150 per month as child support, the parent must continue to pay $150 every month, regardless of any subsequent expenditures on behalf of the child; if the parent has spent $25 on clothes for the child, the parent may not reduce that month's support payment to $125. If another parent regularly spends $25 per month on clothes for his or her child, the parent may bring that fact to the attention of the hearing court and the court may consider that fact in determining the parent's credit for support provided directly to the child. If the court then orders that parent to pay $150 per month as child support, that parent must also pay $150 per month, regardless of any expenditures for the child. If that parent subsequently spends $50 in one month for the child's clothing, that parent also may not reduce his or her support payment to offset the amount spent on clothes.

Of course, if the overall circumstances of any of the parties change--i.e., a decrease in income, an increase in regular monthly expenses--either parent may apply to the court for a modification of a support order.

Finally, any amount of his or her total support obligation for which a parent does not receive credit must be paid to the other parent as child support for the benefit of the children, in accordance with the following formula:

Support to be paid to father = Mother's total support obligation - Support provided by mother directly to children

Support to be paid to mother = Father's total support obligation - Support provided by father directly to children

[T]here is nothing in our law which requires the new spouse to support minor children of the first marriage, . . . if the second wife was gainfully employed and if her earnings or a portion thereof was contributed to the family budget, such facts would be relevant in determining the father's ability to pay for his minor children. Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa. Super. 435, 326 A.2d 883, 885 (1974). Accordingly, any portion of [the] wife's income which was used to defray family expenses would be relevant to a determination of appellant's ability to contribute to the support of his children. [Presumably, this rule would apply to the income of a second spouse of a custodial parent as well.]

HUTCHINSON, J.: …. "I believe that all the factors set forth in the majority opinion are relevant in this and most such cases. As such, I commend them to our trial courts for consideration. However, I believe the majority opinion unduly emphasizes their use in a mechanistic way which cannot replace the individualized judgment of an experienced trial judge." …

DISSENT: NIX, C.J.

I must express my strong disagreement with the majority's unwise and unwarranted attempt to transform the highly sensitive process of determining the equitable allocation of responsibility for child support into a rigid and sterile mathematical exercise. Moreover, the soundness of the proposed mechanistic formula has yet to be satisfactorily demonstrated. n(1) The formula approach urged by appellant and embraced by the majority represents the views of a single practitioner in the field. n(2)

The majority's hastily concocted guidelines are thus being promulgated without the benefit of adequate guidance from those with expertise in this highly complex and controversial area. Nor can this Court realistically lay claim to the expertise which would assure the reliability of its equation.

Moreover, a determination as to the wisdom and necessity of adopting such mandatory guidelines would normally rest with the legislature. Even if the Court could properly make that judgment, it should do so through the rule-making process and only after thorough study and input from bench and bar n(3).

I can discern no basis for the majority's conclusion that mathematical certainty is an adequate surrogate for judicial sensitivity. It is essential to our system of justice that such determinations be made on an individualized basis, according proper weight to all relevant factors and recognizing the unique characteristics of each family situation. The uniform guidelines imposed upon the process relieve the court of its responsibility to balance the equities in each case, allowing the court to hide behind a mathematical formula and detracting from actual consideration of the parties' situation. Thus I am constrained to conclude that reliance on such a formula is jurisprudentially unsound and constitutes an imprudent exercise of this Court's supervisory power.

n(1) Although the factors identified are legitimate, the majority has failed to establish the appropriateness of assigning each factor a fixed value in an equation to be uniformly applied in all cases. The proper weight to be given such factors depends on the facts of the individual case.

n(2) The majority relies on three articles by Maurice R. Franks, Esquire, a Colorado attorney, for its formula. See Franks, Summing Up Child Support: A New Formula, District Lawyer (July-August, 1983); Franks, How to Calculate Child Support, 86 Case & Comment 3 (1981); Franks, The Mathematical Calculation of Child Support, 2 Family L. Rev. 260 (1979).

[We note that we have seen no evidence that Franks went to any great political effort to reform the system to force conformance with the mathematics he proposed. The first court to make note of Franks' work appears to have been the Oregon Supreme Court in the Smith case cited in the majority opinion. In Smith however, the Oregon Supreme Court did not go so far as the Pa Court in recommending rigid application of a formula. Corresponding to the view of one man described in this dissent would seem more appropriate today to a non-practitioner by the name of Robert G. Williams.]

n(3) Although it can be argued that the majority has offered this formula only as an aid to the trial court in reaching its decision, experience demonstrates that undue reliance will be placed upon the results of the mathematical computations, particularly in close cases, rather than upon the wisdom and the experience of the jurists entering the order.

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