J-S65014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 L.M.L.                                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 W.K.L.                                  :
                                         :
                   Appellant             :   No. 524 MDA 2018

                Appeal from the Order Entered March 5, 2018
  In the Court of Common Pleas of Lancaster County Domestic Relations at
                            No(s): 2017-02031

 W.K.L.                                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 L.M.L.                                  :   No. 526 MDA 2018

               Appeal from the Order Entered March 15, 2018
  In the Court of Common Pleas of Lancaster County Domestic Relations at
                            No(s): 2016-02024,
                          PACSES No. 452115151


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 14, 2018

      W.K.L. (“Father”) appeals from orders entered in these consolidated

child support actions in the Court of Common Pleas of Lancaster County. We

affirm.

      The trial court set forth a detailed account of the facts and procedural

history of these cases in its Pa.R.A.P. 1925(a) opinion. Trial Court Opinion,
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5/24/18, at 1–4. In summary, Father and L.M.L. (“Mother”) have two minor

children, A.L. and M.L. (“the Children”). As of December of 2017, A.L. spent

eight days with Mother and six days with Father on a rotating basis, and the

parties shared equal physical custody of M.L.       The parties’ incomes and

earning capacities are not in dispute. Father and Mother both filed support

actions.

                                Father’s action

      Father filed a support action against Mother on July 27, 2016 (“Father’s

action”). Following a support conference on August 30, 2016, the trial court

entered a recommended order directing Mother to pay $414.73 per month to

Father in current support and arrears (“Recommended Order”).             Order,

9/16/16. As of the Recommended Order, the parties shared custody of the

Children through a 50/50 arrangement.             Neither party appealed the

Recommended Order.

      On August 3, 2017, Mother filed a petition to modify the Recommended

Order, averring that she had primary custody of the Children. Following a

support modification conference on October 20, 2017, the trial court entered

an order terminating the Recommended Order because Mother proved that

she had primary physical custody of the Children.         In response, Father

requested a de novo hearing, asserting that the Recommended Order “should

not have been terminated for what is essentially the parties being flexible with

the custodial scheduled.”    Demand for Hearing De Novo, 11/14/17, at 1.


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Following a February 20, 2018 de novo hearing, the trial court entered an

order modifying the Recommended Order, terminating Mother’s support

obligation, and directing that an overpayment in the amount of $1,578.99 be

applied to the companion case filed by Mother. Order, 2/20/18. Father filed

a timely notice of appeal from the February 20, 2018 order.

                                Mother’s action

      Mother filed a support action against Father on August 3, 2017

(“Mother’s action”).   Following a support conference on January 9, 2018,

Mother’s action was scheduled for a de novo hearing on February 20, 2018.

Following that hearing, the trial court entered an order directing Father to pay

$630.10 per month to Mother in current support and arrears. Order, 2/28/18.

This amount reflected a downward deviation from the guidelines because

Mother’s income was higher than Father’s income. The trial court also added

as arrearage Mother’s $1,578.99 overpayment from Father’s action.

      Two weeks later, Father filed a petition to modify the February 28, 2018

order, averring that he was unemployed. Although the trial court scheduled

a support modification conference for April 5, 2018, Father filed a notice of

appeal from the February 28, 2018 order on March 26, 2018.

      In each appeal, Father and the trial court complied with Pa.R.A.P. 1925.

Upon consideration of Father’s request, we consolidated the two appeals.

Order, 4/24/18.




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       On appeal from the February 20, 2018 and February 28, 2018 orders,

Father raises a single issue for our consideration:

       A. Did the trial court commit an error of law or abuse of discretion
          in applying the formula in Pa.R.C.P. No. 1910.16–4(d)(2)
          instead of the formula in Pa.R.C.P. No. 1910.16–4(d)(1) where
          [Mother] is the parent with greater earnings, has primary
          physical custody of one child, and the parties equally share
          custody of the other child?

Father’s Brief at 6.1

       Our standard of review is well settled:

       When evaluating a support order, this Court may only reverse the
       trial court’s determination where the order cannot be sustained on
       any valid ground. We will not interfere with the broad discretion
       afforded the trial court absent an abuse of the discretion or
       insufficient evidence to sustain the support order. An abuse of
       discretion is not merely an error of judgment; if, in reaching a
       conclusion, the court overrides or misapplies the law, or the
       judgment exercised is shown by the record to be either manifestly
       unreasonable or the product of partiality, prejudice, bias or ill will,
       discretion has been abused.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014) (citation omitted).

       Relevant to these appeals, Pennsylvania Rule of Civil Procedure

1910.16–4(d) provides as follows:

       (1) Divided or Split Physical Custody. When Each Party Owes Child
       Support to the Other Party. When calculating a child support
       obligation and each party owes child support to the other party as
       a result of the custodial arrangement, the court shall offset the
       parties’ respective child support obligations and award the net
       difference to the obligee as child support.


____________________________________________


1 Father’s Pa.R.A.P. 1925(b) Statements of Errors Complained of on Appeal
contained the same five issues, including the one raised herein. He has
abandoned the other four issues.

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                                          * * *

       (2) Varied Partial or Shared Custodial Schedules. When the parties
       have more than one child and each child spends either (a)
       different amounts of partial or shared custodial time with the party
       with the higher income or (b) different amounts of partial custodial
       time with the party with the lower income, the trier of fact shall
       add the percentage of time each child spends with that party and
       divide by the number of children to determine the party’s
       percentage of custodial time. If the average percentage of
       custodial time the children spend with the party is 40% or more,
       the provisions of subdivision (c) apply.

Pa.R.C.P. 1910.16–4(d)(1), (d)(2).2

       Practically speaking, where each party has custody of one or more

children, subsection (d)(1) requires that each household be considered

separately, and the support obligations offset. Conversely, subsection (d)(2)

governs situations where each party has varied partial custody of one or more

children and requires the trial court to add the percentage of time each child

spends with a party and divide by the number of children to determine that

party’s percentage of custodial time. If the average percentage of time the



____________________________________________


2   Pa.R.C.P. 1910.16-4(c) provides, in relevant part, as follows:

       (1) When the children spend 40% or more of their time during the
       year with the obligor, a rebuttable presumption arises that the
       obligor is entitled to a reduction in the basic support obligation to
       reflect this time. This rebuttable presumption also applies in high
       income cases decided pursuant to Rule 1910.16-3.1. Except as
       provided in subsection (2) below, the reduction shall be calculated
       pursuant to the formula set forth in Part II of subdivision (a) of
       this rule. For purposes of this provision, the time spent with the
       children shall be determined by the number of overnights they
       spend during the year with the obligor.

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children spend with a party is 40% or more, the provisions for substantial or

shared physical custody apply. Pa.R.C.P. 1910.16-4(c)(1).

      Father argues that the trial court applied the wrong standard in

calculating support. According to Father, the trial court should have calculated

support pursuant to Pa.R.C.P. 1910.16–4(d)(1). Father’s Brief at 9. At the

de novo hearing, Father’s counsel argued why Rule 1910.16–4(d)(1) applied:

      [COUNSEL:] And if Your Honor would direct yourself to Rule of
      Civil Procedure with regard to 1910.16–4[(d)](1) with regards to
      divided or split physical custody.      It actually states, when
      calculating a child support obligation and each party owes child
      support to the other party as a result of the custodial
      arrangement, the [c]ourt shall offset the parties’ respective child
      support obligations and award the net difference to the obligee as
      child support.

             And then if the [c]ourt looks at Example 2, Example 2 says,
      if the parties have two children, one child resides with Mother,
      [A.L.] in this example, who’s on [an] 8/6 schedule, and the parties
      share custody 50/50 percent of the other child and the monthly
      incomes are as set forth in Example 1, and in Example 1 Mother
      has the higher income and [Father] is the lesser earner in the
      scenario, then they actually offset. They calculate what support
      would [Father] owe for the child that’s primarily with [Mother],
      and what would Mom owe for the child that’s 50/50 with the
      parties and then offset the two.

N.T., 2/20/18, at 21, Plaintiff’s Exhibit 1. In response, Mother argued and

provided documentary evidence that she, in fact, was the primary custodian

of both children and, therefore, was entitled to support. Id. at 22, Mother’s

Exhibit 1.

      The trial court addressed Father’s issue as follows:

      Father’s reliance on Rule 1910.16–4(d)(1) of the Pennsylvania
      Rules of Civil Procedure is misplaced. Rather, the trial court

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     properly calculated the amount of any support obligation in
     accordance with Rule 1910.16–4(d)(2) of the Pennsylvania Rules
     of Civil Procedure which is controlling with respect to varied partial
     or shared custodial schedules. As such, [this] issue . . . lacks any
     sound basis in fact, inasmuch as Father is relying upon a specific
     provision of the Pennsylvania Rules of Civil Procedure which is not
     controlling as to the factual situation as presented by the matters
     at bar.

                                    * * *

           The trial court correctly applied Rule 1910.16–4(d) of the
     Pennsylvania Rules of Civil Procedure to the facts presented by
     these matters. Rule 1910.16–4(d)(2) of the Pennsylvania Rules
     of Civil Procedure states that where, as herein, the custody
     schedule varies, support obligations should be calculated as
     follows:

           (2) Varied Partial or Shared Custodial Schedules.
           When the parties have more than one child and each
           child spends either (a) different amounts of partial or
           shared custodial time with the party with the higher
           income or (b) different amounts of partial custodial
           time with the party with the lower income, the trier of
           fact shall add the percentage of time each child
           spends with that party and divide by the number of
           children to determine the party’s percentage of
           custodial time. If the average percentage of custodial
           time the children spend with the party is 40% or more,
           the provision of subdivision (c) apply.

     Rule 1910.16–4(d)(2) of the Pennsylvania Rules of Civil
     Procedure. The official note states, “[I]n cases with more than
     one child and varied partial or shared custodial schedules, it is not
     appropriate to perform a separate calculation for each child and
     offset support amounts as that method does not consider the
     incremental increases in support for more than one child built into
     the schedule of basis child support.” Id. The explanatory
     comment from 2005 indicates that subdivision (d) relates to the
     calculation of support in divided or split custody cases. It retains
     the existing method for offsetting the parties’ respective support
     obligations when one or more of the children resides with each
     party. Accordingly, application of Rule 1910.16–4(d)(1) of the
     Pennsylvania Rules of Civil Procedure, as Father contends, would

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     have the court do an offset [of] the parties’ respective child
     support obligations and award the net difference to the obligee as
     child support (N.T., Support Appeal Hearing, February 20, 2018
     at p. 21). Said application would result in an error of law as the
     present factual scenario is not a custodial situation where one
     child resides with Father and one child resides with Mother.

           In applying Rule 1910.16–4(d)(2) of the Pennsylvania Rules
     of Civil Procedure, the trial court correctly calculated Mother’s
     physical custody time with the Children. M.L. spends 50% of her
     time in the physical custody of Mother. A.L. spends 57% of her
     time in the physical custody of Mother. Therefore, this amounts
     to a 53.5% average of time spent by the Children in the physical
     custody of Mother. Accordingly, Mother has 53.5% average of
     custodial time with the Children. As such, [Father’s action] must
     be terminated and Father has a support obligation in favor of
     Mother in [Mother’s action]. Utilizing Mother’s monthly net income
     of $6,615.41 and Father’s monthly net income of $5,669.90, as
     agreed upon by the parties, the combined monthly net income is
     $12,285.31, which results in a basic child support obligation of
     $2,277.00 in [Mother’s action].        Father’s percentage of the
     combined total monthly net income is 46%. Since Father’s
     percent[age] of time spent with the Children is 46.30%, which is
     16.30% greater than the 30% of time considered to be normal,
     Father receives a 16.30% reduction to his percentage of the
     combined total monthly net income or an adjusted percent share
     of 29.85% of the parties’ income. With the adjustment for
     Father’s custodial time and health insurance premiums, the
     guideline calculation is $715.12 per month in child support owed
     by Father to Mother.         The court awarded a discretionary
     downward deviation in favor of Father from the guideline
     calculation of $715.12 per month pursuant to Rule 1910.16–
     5[(b)](9) as Mother’s income was greater than Father’s income;
     Father’s expenses for the Children increase with the custody
     schedule; and, in consideration of the best interest of the Children.
     Accordingly, the court ordered Father to pay a reduced amount of
     $630.10 ($572.10 current support and $58.00 arrears) per month
     for support of the parties’ two Children, A.L. and M.L.

Trial Court Opinion, 5/24/18, at 9–11 (footnote omitted).

     Upon review, we discern no abuse of the trial court’s discretion in

calculating support pursuant to Pa.R.C.P. 1910.16–4(d)(2). At first glance,

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Example 2 of subsection (d)(1) appears to apply:        The parties have two

children; A.L. resides with Mother; the parties share 50/50 custody of M.L.;

and Mother has the higher income. However, subsection (d)(1) does not take

into account the fact that A.L. also resides with Father. N.T., 2/20/18, at 14–

15.

      Because subsection (d)(2) accounts for the Children’s varied partial or

shared custodial schedules, it applies to the factual scenario at hand: The

parties have two children; each child spends different amounts of partial or

shared custodial time with Mother, the party having the higher income.

Specifically, M.L. spends 50% of the time with Mother and 50% of the time

with Father; A.L. spends 57% of the time with Mother and 43% of the time

with Father. Accordingly, the trial court properly added the percentage of time

each child spends with Mother and divided by the number of children to

determine Mother’s percentage of custodial time: (50% + 57%)/2 = 53.5%.

Because the average percentage of Mother’s custodial time with the Children

is more than 40%, the trial court was required to apply the provisions for

substantial or shared physical custody.        Father’s contrary position is

untenable.




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     Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2018




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