583 Proposed amendments to the rules relating to domestic relations matters; recommendation 57

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CHS. 1910 AND 1930]

Proposed Amendments to the Rules Relating to Domestic Relations Matters; Recommendation 57

[31 Pa.B. 1843]

   The Domestic Relations Procedural Rules Committee proposes the following amendments to Rules of Civil Procedure 1910.13-1, 1910.13-2, 1910.16-2, 1910.19 and 1930.4. 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 rules must be received no later than Friday, June 15, 2001 and must be directed to:

   Patricia A. Miles, Esquire
Counsel, Domestic Relations Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
FAX [phone]
E-mail [e-mail]

   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.

PATRICIA A. MILES,   
Counsel

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1910.  ACTIONS FOR SUPPORT

Rule 1910.13-1.  Failure or Refusal to Appear Pursuant to Order of Court. Bench Warrant.

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   (d)  The bench warrant shall direct that if the court is unavailable at the time of the party's arrest, the party shall be lodged in the county jail until such time as court is opened for business. The authority in charge of the county jail must promptly notify the sheriff's office and the director of the domestic relations section that defendant is being held pursuant to the bench warrant. The party shall be brought before the court for a hearing when the court is next open for business. However, [Under] under no circumstances shall the party remain in the county jail longer than [seventy-two hours prior to hearing] five days from the time of arrest before being brought before the court.

Explanatory Comment--1994

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   An individual arrested pursuant to a bench warrant can be incarcerated for a period not to exceed [seventy-two hours] five days prior to hearing as set forth in [new] Rule 1910.13-1(d). Under the old rules, if the court [is] was unavailable at the time of arrest, the individual could not be held. Therefore, law enforcement officials were unable to execute bench warrants in the evenings or on weekends, when their efforts were most likely to be successful. By limiting the possible period of incarceration to [seventy-two hours] five days, [new] Rule 1910.13-1(d) balances the need to bring parties before the court with the desire to avoid lengthy pre-trial detention. Bail can be set by the court where appropriate, providing additional protection for the respondent.

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Explanatory Comment--2001

   Subdivision (d) of Rule 1910.13-1 and the related comment have been amended to extend the time period for holding an individual arrested on a bench warrant prior to hearing. While continuing to provide a time limit on a party's pre-hearing detention, the amendment will permit law enforcement officials to execute bench warrants on holidays and long weekends when their efforts have traditionally been most successful.

Rule 1910.13-2.  Form of Request for Bench Warrant and Supporting Affidavit. Form of Bench Warrant.

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   (b)  The Bench Warrant entered by a court pursuant to Rule 1910.13-1 shall be in substantially the following form, and shall be attached to the Request for Bench Warrant form set forth in subdivision (a) of this rule:

[CAPTION]

BENCH WARRANT

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   You are further commanded that if the court is unavailable, the party may be held in the County Jail until the court is opened for business, at which time the party shall be promptly conveyed and delivered into the custody of the court at

___________________________

                                 (address)

___________________________

                                    (city)

Pennsylvania, for hearing.

   The authority in charge of the county jail shall notify the sheriff's office and the director of the domestic relations section forthwith that the party is being held pursuant to the bench warrant.

   Under no circumstances may the party be held in the county jail for more than [seventy-two hours] five days prior to hearing.

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

   The amount of support to be awarded is based in large part upon the parties' monthly net income. A support order must be fair and non-confiscatory.

   (a)  Monthly Gross Income. Monthly gross income is ordinarily based upon at least a six-month average of all of a party's income. The term ''income'' is defined by the support law, 23 Pa.C.S. § 4302, and includes income from any source. For purposes of these guidelines, gross income shall include all earned and unearned income that is recurring or will increase the income available to a party over an extended period of time. When determining whether or not an income source should be included in the support guidelines calculation, the court must consider if the funds would have been available to pay expenses related to the subject of the support action if the family was intact and how long that source would have been available to pay those expenses. [The statute lists many types of income including, but not limited to] Gross income includes, but is not limited to, the following:

   (1)  compensation for services, including wages, salaries, bonuses, fees, [and] commissions and compensation in kind (the fair market value of goods, services or benefits received in lieu of wages if they reduce the living expenses of the recipient);

   (2)  military pay and allowances, including Basic Allowance for Quarters (BAQ), Basic Allowance for Subsistence (BAS) and Variable Housing Allowance (VHS) or the fair market value of in-kind benefits;

   [(2)](3) [net] income from the operation of a business or from dealings in property, minus ordinary and necessary operating expenses;

   [(3)](4) interest, rents, royalties, and dividends;

   [(4) pensions and all forms of retirement](5) distributions from government and private retirement and pension plans, social security retirement benefits, military retirement benefits, Railroad Retirement Board benefits, deferred compensation plans, profit sharing plans, 401(k) plans, individual retirement accounts and Keogh plans;

   [(5)](6) income from annuities, inheritances or an interest in an estate or trust;

   (7) income from life insurance and endowment contracts;

   [(6)](8) social security disability benefits, [social security retirement benefits,] temporary and permanent disability benefits, workers' compensation and unemployment compensation;

   [(7)](9) alimony if, in the discretion of the trier of fact, inclusion of part or all of it is appropriate; [and]

Official Note:

   Since the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipient's gross income must also vary. For example, if obligor is paying $1,000 per month in rehabilitative alimony for the express purpose of financing obligee's college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance obligee's general living expenses, inclusion of the alimony as income is appropriate.

   (10)  overtime, part-time and severance pay;

   (11)  discharge of indebtedness;

   (12)  distributive share of partnership gross income;

   (13)  income from the sale of investments or earnings on investments;

   (14)  lottery and gambling winnings;

   (15)  personal injury awards or other lawsuit awards and settlements, insurance compensation or settlements;

   (16)  income tax refunds, credits or rebates;

   (17)  imputed income based upon earning potential; and

   [(8) other entitlements to money or lump sum awards, without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements; awards and verdicts; and](18) any form of payment due to and collectible by an individual regardless of source.

Official Note:

   The trial court has discretion to determine the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the party's support obligation. These awards may be annualized or they may be averaged over a shorter or longer period of time depending on the circumstances of the case. They may also be escrowed in an amount sufficient to secure the support obligation during that period of time.

   Income tax refunds, credits or rebates should not be included as income to the extent they were already factored into the party's actual tax obligation for purposes of arriving at his or her net income.

   Gross income does not include the following:

   (1)  means-tested income (i.e. based upon the fact that the recipient has minimal income and requires government assistance to subsist) including, but not limited to, Temporary Assistance to Needy Families (TANF), General Assistance, Refugee Assistance, rent subsidies, food stamps and Supplemental Security Income for the Aged, Blind or Disabled (SSI);

   (2)  child support received for children of another relationship;

   (3)  non-income producing assets (e.g. undeveloped real estate, automobiles, jewelry, art, stocks and bonds) unless the court finds that the intent of the investment was to avoid the payment of support;

   (4)  income of a child, unless the court determines that such income should be included because the child is a professional or has substantial income that reduces the family's living expenses;

   (5)  income from other household members (e.g. step-parents, current spouse or grandparents) who are not legally responsible for support; and

   (6)  financial assistance for education including loans, grants, scholarships and veterans' education benefits.

Explanatory Comment--2001

   The prior version of this rule simply recited the definition of income in the support statute at 23 Pa.C.S. § 4302. As a result of perceived ambiguity, the rule has been amended to clarify application of the statutory categories of income in support proceedings.

   (b)  Treatment of [Public Assistance, 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 combined monthly net incomes of the obligor and obligee to calculate the 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; 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 monthly 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.

[Official Note:

   Care must be taken to distinguish Social Security from Supplemental Security Income (SSI) benefits. Social Security benefits are income pursuant to subdivision (a) of this Rule.]

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Rule 1910.19.  Support Modification. Termination. Guidelines as Substantial Change in Circumstances.

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   (d)  When a child who is the subject of a child support order reaches eighteen (18) years of age, the domestic relations section shall issue an emancipation inquiry and notice to the obligee, with a copy to the obligor, seeking the following information:

   (1)  confirmation of the child's date of birth, date of graduation or withdrawal from high school;

   (2)  whether the child has left the obligee's household and, if so, the date of departure; and

   (3)  any special needs of the child which may be a basis for continuing support for that child beyond the child's eighteenth birthday or graduation from high school, whichever is last to occur.

   The notice shall advise the obligee that if the inquiry is not returned within twenty (20) days of mailing or if the child does not have any special needs, the charging order may be modified or terminated by the court. When no other children are subjects of the child support order and the obligee either does not return the emancipation inquiry within twenty (20) days of its mailing or does not assert grounds for continuing support for the child, then the court shall have the authority to administratively terminate the child support charging order without further proceedings at any time on or after the last to occur of the date the last child reaches age eighteen (18) or graduates from high school. Termination of the charging order shall not affect any arrears accrued through the date of termination.

   If the order applies to another child or children and/or the obligee asserts that a child has special needs requiring continued support after emancipation, then the domestic relations section may schedule a conference to determine if the charging order should be modified.

Explanatory Comment--2001

   Although support orders do not terminate automatically, many obligors are unaware of the necessity of filing a petition to terminate a child support order when the child becomes emancipated. As a result, old orders have continued to charge long after the subject child has become an adult. New subdivision (d) is intended to address this problem by giving the obligee notice of a proposed modification or termination of the order and the opportunity to object. If no objection is made, or if the obligee fails to respond with a reason to continue the order, the rule gives the court the authority to terminate or modify the charging order, depending upon whether or not other children are covered under the order.

CHAPTER 1930.  RULES RELATING TO DOMESTIC RELATIONS MATTERS GENERALLY

Rule 1930.4.  Service of Original Process in Domestic Relations Matters.

   (a)  Persons Who May Serve. Original process in all domestic relations matters may be served by the sheriff or a competent adult:

   (1)  by handing a copy to the defendant; or

   (2)  by handing a copy

   (i)  at the residence of the defendant to an adult member of the family with whom [he] the defendant resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or

   (ii)  at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which [he] the defendant resides; or

   (iii)  at any office or usual place of business of the defendant to [his] the defendant's agent or to the person for the time being in charge thereof.

   (3)  or pursuant to special order of court.

Official Note:

   See Rule 76 for the definition of ''competent adult.''

   (b)  Service in Protection From Abuse Matters. In Protection From Abuse matters only, original process may also be served by an adult using any means set forth in subdivision (a) above. If personal service cannot be completed within forty-eight (48) hours after the entry of the protection order, the court may, by special order, authorize service by mail pursuant to subdivision (c) of this rule.

   (c)  Service by Mail. Except in Protection from Abuse matters unless authorized by special order of court pursuant to subdivision (b) above, original process may also be served by mailing the complaint and order to appear, if required, to the defendant's last known address by both regular and certified mail. Delivery of the certified mail must be restricted to addressee only, and a return receipt must be requested.

   (1)  If the certified mail is refused by defendant, but the regular mail is not returned within fifteen days, service may be deemed complete.

   (2)  If the mail is returned with notation by the postal authorities that it was unclaimed, service shall be made by another means pursuant to these rules.

   (d)  Acceptance of Service. In lieu of service pursuant to this rule, the defendant or [his] the defendant's authorized agent may accept service of original process by filing with the prothonotary a separate document which shall be substantially in the following form:

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[Pa.B. Doc. No. 01-583. Filed for public inspection April 6, 2001, 9:00 a.m.]