1770 Amendments to the rules of civil procedure relating to domestic relations matters; recommendation 71

Title 231--RULES
OF CIVIL PROCEDURE

PART I. GENERAL

[231 PA. CODE CH. 1910]

Amendments to the Rules of Civil Procedure Relating to Domestic Relations Matters; Recommendation 71

[34 Pa.B. 5246]

   The Domestic Relations Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend the Rules of Civil Procedure relating to domestic relations matters as follows. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   Notes and explanatory comments which appear with proposed amendments have been inserted by the committee for the convenience of those using the rules. Reports, notes and comments will not constitute part of the rules and will not be officially adopted or promulgated by the Supreme Court.

   The Committee solicits comments and suggestions from all interested persons prior to submission of this proposal to the Supreme Court of Pennsylvania. Please submit written comments no later than Friday, November 5, 2004 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]

By the Domestic Relations
Procedural Rules Committee

ROBERT C. CAPRISTO,   
Chair

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1910. ACTIONS FOR SUPPORT

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

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   (e)  Support Obligations When Custodial Parent Owes Spousal Support. Where children are residing with the spouse obligated to pay spousal support or alimony pendente lite (custodial parent) and the other spouse (non-custodial parent) has a legal obligation to support these children, the guideline amount of spousal support or alimony pendente lite shall be determined by offsetting the non-custodial parent's obligation for support of the children and the custodial parent's obligation of spousal support or alimony pendente lite, and awarding the net difference either to the non-custodial parent as spousal support/alimony pendente lite or to the custodial parent as child support as the circumstances warrant.

   Official Note: One of the circumstances the trier of fact should consider is the tax consequences of each type of payment.

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

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   (b)  Health Insurance Premiums.

   (1)  A party's payment of a premium to provide health insurance coverage on behalf of the other party or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it. Notwithstanding the prior sentence, there shall be no apportionment of that portion of the premium covering the party who is maintaining the insurance if that party is not owed a duty of support by the other party. If the obligor is paying the premium, then the obligee's share is deducted from the obligor's basic support obligation. If the obligee is paying the premium, then the obligor's share is added to his or her basic support obligation. Employer-paid premiums are not subject to allocation.

   (2)  When the health insurance covers a party to whom no duty of support is owed or other persons who are not parties to the support action or children who are not the subjects of the support action, the portion of the premium attributable to them must be excluded from allocation. In the event this portion is not known or cannot be verified, it shall be calculated as follows. First, determine the cost per person by dividing the total cost of the premium by the number of persons covered under the policy. Second, multiply the cost per person by the number of persons who are not parties to, or the subject of the support action. The resulting amount is excluded from allocation.

   [For example, if] Example 1, If the parties are separated, but not divorced, and Husband pays $200 per month [for] toward the cost of a health insurance policy provided through his employer which covers himself, Wife, the parties' child, and two additional children from a previous marriage, the portion of the premium attributable to the additional two children, if not otherwise verifiable or known with reasonable ease and certainty, is calculated by dividing $200 by five persons and then multiplying the resulting amount of $40 per person by the two additional children, for a total $80 to be excluded from allocation. Deduct this amount from the total cost of the premium to arrive at the portion of the premium to be allocated between the parties--$120. Since Husband is paying the premium, Wife's percentage share of $120 is deducted from Husband's support obligation. If Wife had been providing the coverage, then Husband's percentage share would be added to his basic support obligation.

   Example 2. If the parties are divorced and Father pays $200 per month toward the cost of a health insurance policy provided through his employer which covers himself, Mother, the parties' child and two additional children from a previous marriage, the portion of the premium attributable to Father and the two additional children will not be allocated between the parties. Thus, using the same calculations in Example 1, the amount of the premium attributable to Father and the two other children is $120 ($40 per person multiplied by three) and that amount is deducted from the total cost of the premium, leaving $80 ($200-$120=$80) to be allocated between the parties.

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   Official Note: Subdivision (b) of this Rule does not apply to Medical Assistance. See 23 Pa.C.S. § 4326(l). The 2004 amendments to Rule 1910.16-6(b)(1) and (2) clarify that the portion of the insurance premium covering the party carrying the insurance cannot be allocated between the parties if there is no duty of support owed to that party by the other party. See Maher v. Maher, 835 A.2d 1281 (Pa. 2003).

   (c)  Unreimbursed Medical Expenses. Unreimbursed medical expenses of the obligee or the children shall be allocated between the parties in proportion to their respective net incomes. Notwithstanding the prior sentence, there shall be no apportionment of unreimbursed medical expenses incurred by a party who is not owed a duty of support by the other party. The court may direct that obligor's share be added to his or her basic support obligation, or paid directly to the obligee or to the health care provider.

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[Explanatory Comment--2003

   Subdivision (b)(2) has been amended to clarify that in calculating the amount of the health care premium to be allocated between the parties, subdivision (b)(1) requires the inclusion of that portion of the health insurance premium covering the party who is paying the premium, but not the portion of the premium attributable to non-parties and children who are not the subjects of the support order.]

Rule 1910.17. Support Order. Effective Date. Change of Circumstances. Copies of Order.

   (a)  An order of support shall be effective from the date of the filing of the complaint or petition for modification unless the order specifies otherwise. However, a modification of an existing support order may be retroactive to a date preceding the date of filing if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition.

   Official Note: Subdivision (a) was amended in 2004 to include the statutory provision at 23 Pa.C.S. § 4352(e) that authorizes the court to enter a modified order that is effective to a date prior to the date on which the petition for modification was filed in certain circumstances. To the effect that the holding in Kelleher v. Bush, 832 A.2d 483 (Pa. Super. 2003), is inconsistent, it is overruled. See 23 Pa.C.S. § 4352(e) for additional provisions.

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[Pa.B. Doc. No. 04-1770. Filed for public inspection September 24, 2004, 9:00 a.m.]