1788 Amendments to the rules of civil procedure relating to domestic relations matters; recommendation 90

PART I. GENERAL

[ 231 PA. CODE CH. 1910 ]

Amendments to the Rules of Civil Procedure Relating to Domestic Relations Matters; Recommendation 90

[37 Pa.B. 5251]
[Saturday, September 29, 2007]

   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 set forth 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 and welcomes 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, January 25, 2008 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

NANCY P. WALLITSCH, Esq.   
Chair

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1910. ACTIONS FOR SUPPORT

Rule 1910.16-6. Support Guidelines. Adjustments to the Basic Support Obligation. Allocation of Additional Expenses.

   Additional expenses permitted pursuant to this Rule 1910.16-6 may be allocated between the parties even if the parties' incomes do not justify an order of basic support.

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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 and/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, as long as a statutory duty of support is owed to the party who is paying the premium. 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. If health insurance coverage for a child who is the subject of the support proceeding is being provided and paid for by the child's stepparent, the trier of fact may, as justice and fairness require, deduct all or a portion of the cost of the child's coverage from the net income of the party whose spouse is providing the coverage. Employer-paid premiums are not subject to allocation.

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   (3)  Pursuant to 23 Pa.C.S.A. § 4326(a), [the non-custodial parent bears the initial responsibility of providing health care coverage for the children if it is available at a reasonable cost on an employment-related or other group basis.] in every support proceeding, the court must ascertain each parent's ability to provide health care coverage for the parties' children and the support order must ''provide health care coverage for each child as appropriate.''

   (i)  The non-custodial parent bears the initial responsibility of providing health care coverage for the children if it is available at a reasonable cost on an employment-related or other group basis. ''Reasonable cost'' to an obligor shall be defined as an amount that does not exceed 5% of the obligor's net monthly income and, when added to the amount of cash support the obligor is ordered pay, does not exceed 50% of the obligor's net monthly income.

   (ii)  Unless health care coverage for the parties' children is provided by the obligee or the obligee's spouse, the court shall issue the National Medical Support Notice required by 23 Pa.C.S.A. § 4326(d.1) to the obligor's employer in response to notification that the obligor is employed. The notice shall direct the employer to enroll the children of the obligor who are the subject of the support proceeding if the coverage is available at a reasonable cost to the obligor. Concurrently, the court shall provide notice to the obligor setting forth the process to object to the enrollment based upon unreasonable cost, mistake of fact or availability of alternative health care coverage for the children. If there is more than one employer-provided health care coverage option, the obligor shall select the plan, subject to the obligee's right to seek a court order designating a different option.

   (iii)  Absent the availability of health care coverage to the obligor for the parties' children at a reasonable cost, the court shall order the obligee to provide health care coverage for the children if it is available at a reasonable cost on an employment-related or other group basis. ''Reasonable cost'' to the obligee shall be defined as an amount not to exceed 5% of the obligee's net monthly income.

   (iv)  If health care coverage is not available to either party at a reasonable cost on an employment-related or other group basis, the court shall order either parent or both parents to obtain reasonable cost health insurance for the parties' children. The court also may order the custodial parent to apply for government-sponsored coverage, such as the Children's Health Insurance Program (''CHIP''), with any co-premium or other cost apportioned between the parties in proportion to their respective net monthly incomes.

   (v)  The court shall give preference to health care coverage that is readily accessible to the child, as defined by geographic coverage area, access to local treatment providers or other relevant factors.

   Official Note: The maximum amount of any attachment for child and medical support is set forth by the federal Consumer Credit Protection Act (Public Law 90-321, Section 303(b); 15 U.S.C. 1601 et seq.). Pursuant to Rule 1910.16-7(d), priority of payment under any order for support shall be for cash support followed by medical support, which includes health insurance and related costs, capped at the maximum amount permitted by federal withholding law.

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Explanatory Comment--2007

   Federal and state statutes require clarification to subdivision (b) to ensure that all court orders for support address the children's ongoing need for medical care. In those instances where the children's health care needs are paid by the state's medical assistance program, and eligibility for the Children's Health Insurance Program (''CHIP'') is denied due to the minimal income of the custodial parent, the obligor remains required to enroll the parties' children in health insurance that is, or may become, available on an employment-related or other group basis that is reasonable in cost.

   Government-sponsored health care plans represent a viable alternative to the often prohibitive cost of health insurance obtainable by a parent. Except for very low income children, every child is eligible for CHIP, for which the parent with primary physical custody must apply and which is based on that parent's income. A custodial parent may apply for CHIP by telephone or on the Internet. While co-premiums or co-pays increase as the custodial parent's income increases, such costs are generally modest and may be apportioned between the parties or assigned to the obligor. Moreover, health care coverage obtained by the custodial parent generally yields more practical results, as the custodial parent resides in the geographic coverage area, enrollment cards are issued directly to the custodial parent, and claims may be submitted directly by the custodial parent.

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Rule 1910.16-7 Support Guidelines. Awards of Child Support When There are Multiple Families.

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   (d)  When an obligor is subject to more than one order for child support, spousal support and/or alimony pendente lite, the priority for distribution of payments and/or collections for the obligor, without regard to the source of the funds or method of collection, are as follows unless the court specifically orders a different distribution priority:

   (1)  current child support.

   (2)  medical, child care or other court-ordered child support-related expenses.

   (3)  [current spousal support or alimony pendentelite] child support arrears.

   (4)  [child support arrears] current spousal support or alimony pendente elite.

   (5)  spousal support or alimony pendente lite arrears.

   (6)  court costs and fees.

Explanatory Comment--2007

   The order of priority of the distribution of payments is revised to reflect changes in federal law which presume that cash and medical-related child support are established and paid in that sequence, and that obligations to children take priority over spousal-only obligations. An unallocated order for child and spousal support has the same priority as a child support order.

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Rule 1910.21. Support Order. Enforcement. Withholding of Income.

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   (g)  Priority of Income Withholding. If there are multiple support obligations in effect against the income of the obligor, the court shall allocate among the obligees the amount of income available for withholding, giving priority to current child support, child support-related expenses and child support arrears to the limit provided by law and stating the priority of payment to the obligee.

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[Pa.B. Doc. No. 07-1788. Filed for public inspection September 28, 2007, 9:00 a.m.]