417 Amendments to the rules of civil procedure relating to protection from abuse actions, support and custody mediation

Title 231--RULES OF CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CHS. 1900, 1910 AND 1930]

Amendments to the Rules of Civil Procedure Relating to Protection from Abuse Actions, Support and Custody Mediation

[30 Pa.B. 1357]

Recommendation 51

   The Domestic Relations Procedural Rules Committee proposes the following amendments to Rules of CivilProcedure 1905, 1910.10, 1910.16-1, 1910.16-2, 1910.16-3, 1910.16-4 and 1910.16-6 and new Rule 1940.9. The Committee solicits comments and suggestions from all interested persons prior to submission of these proposed amendments to the Supreme Court of Pennsylvania.

   Written comments relating to the proposed amendments must be received no later than Friday May 5, 2000 and must be directed to: Patricia A. Miles, Counsel, Domestic Relations Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, PA 17055, FAX [phone], E-mail: patricia.miles@ supreme.court.state.pa.us.

   The notes and explanatory comments which appear in connection with the proposed amendments have been inserted by the Committee for the convenience of those using the rules. They will not constitute part of the rules and will not officially be adopted or promulgated by the Supreme Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1900.  ACTIONS PURSUANT TO THE PROTECTION FROM ABUSE ACT

Rule 1905.  Forms for use in PFA Actions. Notice and Hearing. Petition. Temporary Protection Order. Final Protection Order.

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   (c)  The Temporary Order of Court entered pursuant to the Act shall be substantially in the following form:

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   [  ]  2.  Defendant is evicted and excluded from the residence at (NONCONFIDENTIAL ADDRESS FROM WHICH DEFENDANT IS EXCLUDED) or any other permanent or temporary residence where Plaintiff or any other person protected under this Order may live. Plaintiff is granted exclusive possession of the residence. Defendant shall have no right or privilege to enter or be present on the premises of Plaintiff or any other person protected under this Order.

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   (e)  The Final Order of Court entered pursuant to the Act shall be substantially in the following form:

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   [  ]  2.  Defendant is completely evicted and excluded from the residence at [NONCONFIDENTIAL ADDRESS FROM WHICH DEFENDANT IS EXCLUDED] or any other residence where Plaintiff or any other person protected under this Order may live. Exclusive possession of the residence is granted to Plaintiff. Defendant shall have no right or privilege to enter or be present on the premises of Plaintiff or any other person protected under this Order.

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Rule 1910.16-1.  Amount of Support. Support Guidelines.

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   (b)  The amount of support (child support, spousal support or alimony pendente lite) to be awarded pursuant to the procedures under Rules 1910.11 and 1910.12 shall be determined in accordance with the support guidelines which consist of the guidelines expressed as the child support schedule [and the chart of proportional expenditures] set forth in Rule 1910.16-3, the formula set forth in Rule 1910.16-4 and the operation of the guidelines as set forth in these rules.

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Rule 1910.16-2.  Support Guidelines. Calculation of Net Income.

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   (b)  Treatment of Public Assistance, [and] SSI Benefits and Social Security Payments to a Child Due to a Parent's Disability or Retirement.

   (1)  Neither public assistance nor Supplemental Security Income (SSI) benefits shall be counted as income for purposes of determining support.

   (2)  If a child for whom support is sought is receiving social security retirement or disability derivative benefits as a result of a parent's age or disability, the benefits the child receives shall be added to the monthly net incomes of the obligor and obligee to calculate the combined income available for support on the vertical axis of the basic child support schedule set forth in Rule 1910.16-3. The presumptive amount of support as set forth on the schedule at the combined income of obligee, obligor and child's benefits shall then be reduced by the amount of the child's social security or disability derivative benefits before apportioning the remaining support obligation between the parties pursuant to Rule 1910.16-4.

   Example. If the obligor has net monthly income of $1200 per month; and the obligee has net monthly income of $800; and the child receives social security derivative benefits of $300 per month as a result of either the obligor's or obligee's retirement or disability, then the total combined net income is $2,300. Using the schedule at Rule 1910.16-3 for one child, the amount of support is $539 per month. From that amount, subtract the amount the child is receiving in social security derivative benefits ($539 minus $300 equals $239). Then, apply the formula at Rule 1910.16-4 to apportion the remaining child support amount of $239 between the obligor and the obligee in proportion to their respective incomes. Obligor's $1200 net income per month is 60% of the total of obligor's and obligee's combined net monthly income. Thus, obligor's support obligation would be 60% of $239, or $143.40, per month.

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   (c)  Monthly Net Income.

   (1)  Unless otherwise provided in [this Rule] these rules, the court shall deduct only the following items from monthly gross income to arrive at net income:

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   (e)  Net Income Affecting Application of the Child Support Guidelines.

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   (2)  High Income Child Support Cases.

   When the parties' combined net income exceeds $15,000 per month, child support shall be calculated pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The presumptive minimum amount of child support shall be obligor's percentage share of the highest amount of support which can be derived from the schedule [or the chart] for the appropriate number of children and using the parties' actual combined income to determine obligor's percentage share of this amount. The court may award an additional amount of child support based on the [remaining] parties' combined income and the factors set forth in Melzer. The Melzer analysis in high income child support cases shall be applied to all of the parties' income, not just to the amount of income exceeding $15,000 per month. In a Melzer analysis case, the presumptive minimum remains applicable.

   For example, where obligor and obligee have monthly net incomes of $17,000 and $4,000 respectively, the presumptive minimum amount of child support for three children is calculated as follows: using the formula in Rule 1910.16-4, determine the parties' percentage shares of income based on their actual combined income--81% and 19% respectively of $21,000. Using the schedule [or chart] in Rule 1910.16-3, find the highest possible combined child support obligation for three children -- $3,480. Obligor's percentage share of the combined obligation is 81% of $3,480, or $2,818. This is the presumptive minimum amount of child support that he or she must pay for three children. Since this amount is derived from the schedule [or chart] in Rule 1910.16-3, [both of] which [are] is limited to combined household income of $15,000, the court may award an additional amount of support based on [the parties' remaining income of $6,000 and] the factors set forth in Melzer.

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Rule 1910.16-3.  Support Guidelines. Basic Child Support Schedule. [and Chart of Proportional Expenditures]

   [(a)  Basic Child Support Schedule.] The following schedule sets forth the amounts spent on children in intact families by combined income and number of children. Combined income is on the vertical axis of the schedule and number of children is on the horizontal axis of the schedule. This schedule is used to find the basic child support obligation. Unless otherwise provided in these Rules, the obligor's share of the basic support obligation shall be computed using the formula set forth in Part I of Rule 1910.16-4.

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   [(b)  Chart of Proportional Expenditures. The following chart sets forth the proportion of combined monthly net income spent on children by income level. It is used to find the parties' basic child support obligation. Unless otherwise provided in these Rules, the obligor's share of the basic support obligation shall be computed using the formula set forth in Part I of Rule 1910.16-4.

PROPORTION OF NET INCOME SPENT
ON CHILDREN BY COMBINED INCOME LEVEL

Children	$423-$1,058	$1,059-$1,481	$1,482-$1,905	$1,906-$2,328	$2,329-$2,751	$2,752-$3,174
1	$104, plus 24.32% above $423	$258, plus 22.67% above $1,059	$354, plus 22.72% above $1,482	$451, plus 22.32% above $1,906	$545, plus 21.39% above $2,329	$636, plus 11.47% above $2,752
2	$152, plus 35.44% above $423	$377, plus 32.68% above $1,059	$515, plus 32.77% above $1,482	$654, plus 31.70% above $1,906	$788, plus 31.41% above $2,329	$921, plus 16.16% above $2,752
3	$180, plus 41.93% above $423	$446, plus 38.34% above $1,059	$609, plus 38.47% above $1,482	$772, plus 36.69% above $1,906	$927, plus 37.49% above $2,329	$1,085, plus 18.62% above $2,752
4	$199, plus 46.33% above $423	$493, plus 42.37% above $1,059	$673, plus 42.50% above $1,482	$853, plus 40.54% above $1,906	$1,024, plus 41.42% above $2,329	$1,199, plus 20.58% above $2,752
5	$216, plus 50.22% above $423	$535, plus 45.92% above $1,059	$729, plus 46.08% above $1,482	$924, plus 43.94% above $1,906	$1,110, plus 44.90% above $2,329	$1,300, plus 22.30% above $2,752
6	$231, plus 53.74% above $423	$572, plus 49.14% above $1,059	$780, plus 49.30% above $1,482	$989, plus 47.02% above $1,906	$1,188, plus 48.04% above $2,329	$1,391, plus 23.87% above $2,752

Children	$3,175-$3,598	$3,599-$4,021	$4,022-$4,656	$4,657-$5,502	$5,503-$6,349
1	$684, plus 7.20% above $3,175	$715, plus 17.74% above $3,599	$790, plus 14.14% above $4,022	$879, plus 13.79% above $4,657	$996, plus 13.75% above $5,503
2	$989, plus 11.89% above $3,175	$1,040, plus 22.97% above $3,599	$1,137, plus 20.44% above $4,022	$1,267, plus 19.70% above $4,657	$1,434, plus 19.74% above $5,503
3	$1,164, plus 10.21% above $3,175	$1,207, plus 29.49% above $3,599	$1,332, plus 23.99% above $4,022	$1,485, plus 22.92% above $4,657	$1,679, plus 23.11% above $5,503
4	$1,286, plus 11.28% above $3,175	$1,334, plus 32.59% above $3,599	$1,472, plus 26.51% above $4,022	$1,640, plus 25.32% above $4,657	$1,855, plus 25.54% above $5,503
5	$1,395, plus 12.22% above $3,175	$1,446, plus 35.33% above $3,599	$1,596, plus 28.74% above $4,022	$1,778, plus 27.45% above $4,657	$2,011, plus 27.68% above $5,503
6	$1,492, plus 13.08% above $3,175	$1,548, plus 37.80% above $3,599	$1,708, plus 30.75% above $4,022	$1,903, plus 29.37% above $4,657	$2,151, plus 29.62% above $5,503

Children	$6,350-$7,195	$7,196-$8,042	$8,043-$10,581	$10,582-$12,697	$12,698-$15,000
1	$1,113, plus 13.57% above $6,350	$1,227, plus 7.05% above $7,196	$1,287, plus 15.99% above $8,043	$1,693, plus 7.51% above $10,582	$1,852, plus 7.97% above $12,698
2	$1,601, plus 20.37% above $6,350	$1,773, plus 10.65% above $7,196	$1,863, plus 22.93% above $8,043	$2,446, plus 10.95% above $10,582	$2,677, plus 11.60% above $12,698
3	$1,874, plus 24.79% above $6,350	$2,084, plus 13.13% above $7,196	$2,195, plus 26.83% above $8,043	$2,877, plus 13.01% above $10,582	$3,152, plus 14.26% above $12,698
4	$2,071, plus 27.39% above $6,350	$2,303, plus 14.51% above $7,196	$2,426, plus 29.65% above $8,043	$3,179, plus 14.37% above $10,582	$3,483, plus 15.76% above $12,698
5	$2,245, plus 29.69% above $6,350	$2,496, plus 15.73% above $7,196	$2,629, plus 32.14% above $8,043	$3,446, plus 15.58% above $10,582	$3,775, plus 17.08% above $12,698
6	$2,402, plus 31.77% above $6,350	$2,671, plus 16.83% above $7,196	$2,813, plus 34.39% above $8,043	$3,687, plus 16.67% above $10,582	$4,039, plus 18.28% above $12,698]

Rule 1910.16-4.  Support Guidelines. Calculation of Support Obligation. Formula.

   (a)  The following formula shall be used to calculate the obligor's share of the basic guideline child support, spousal support and/or alimony pendente lite obligation:

PART I.  BASIC CHILD SUPPORT.

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   6.  BASIC CHILD SUPPORT OBLIGATION (Determine [either] from Schedule based on number of children and line 5 combined monthly net income) [OR from Chart by finding proportion of combined income spent on the children)]

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   (c)  Substantial or Shared Physical Custody.

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   (3)  This subdivision shall not apply when the obligor's income falls within the shaded area of the schedule in Rule 1910.16-3[(a)] or when the obligee's income is 10% or less of the parties' combined income.

   (d)  Divided or Split Physical Custody.

   (1)  When calculating a child support obligation, and one or more children reside with each party, the court shall offset the parties' respective child support obligations and award the net difference to the obligee as child support. For example, if the parties have three children, one of whom resides with Husband and two of whom reside with Wife, and their net monthly incomes are $1,500 and $800 respectively, Husband's child support obligation is calculated as follows. Using the formula with [either] the schedule [or the chart] in Rule 1910.16-3 for two children, Husband's support obligation for the two children living with Wife is $508. Using the formula with the schedule [or chart] in Rule 1910.16-3 for one child, Wife's support obligation for the child living with Husband is $188. Subtracting $188 from $508 produces a net support amount of $320 payable to Wife as child support.

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Rule 1910.16-6.  Support Guidelines. Adjustments to the Basic Support Obligation.

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   (b)  Health Insurance Premiums.

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   (4)  In cases in which the obligor is paying the cost of health care coverage and the obligee has no income or minimal income such that the obligor will bear 90% or more of the proportional share of the cost of the health insurance premiums, the trier of fact may, as fairness requires, either deduct part or all of the cost of the premium so paid from the obligor's gross income to determine net income or, in the alternative, reduce the obligor's basic support obligation under the guidelines by part or all of the amount of the health insurance premium the obligor actually pays on behalf of the other party or the children. If either of these alternatives is used, then the allocation of premium costs as set forth in (b)(1) above shall not be applied.

   Official Note: Subdivision (b) of this Rule does not apply to Medical Assistance. See 23 Pa.C.S. § 4326(l).

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   (e)  Mortgage Payment. The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners' insurance. Similarly, the court will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise. If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee's net income (including amounts of spousal support, APL and child support), the court may direct the obligor to assume up to 50% of the excess amount as part of the total support award. For purposes of this subdivision, the term ''mortgage'' shall include[s] first [and subsequent] mortgages, real estate taxes and homeowners' insurance and may include any subsequent mortgages, home equity loans and any other obligations incurred during the marriage which are secured by the marital residence.

Rule 1940.9.

   These rules shall not affect any existing mediation program established in any judicial district pursuant to local rule prior to October 29, 1999. However, any changes or amendments to any existing program shall be consistent with these rules.

[Pa.B. Doc. No. 00-417. Filed for public inspection March 10, 2000, 9:00 a.m.]