J-S14018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.W.                                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

S.M.S.

                                                      No. 1126 MDA 2015


                 Appeal from the Order Entered March 16, 2015
                  In the Court of Common Pleas of York County
                  Domestic Relations at No(s): 02052 SA 2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 07, 2016

        Appellant, P.W. (“Mother”), appeals from the order setting child

support liability for S.M.S. (“Father”).1 Mother contends that the trial court

erred in applying the support guidelines. After careful review, we agree with

Mother and therefore vacate the order and remand for further proceedings.

        Mother initially filed a petition seeking child support in Bucks County

on July 8, 2015. The case was transferred to Father’s jurisdiction, York

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  The trial court’s order is dated February 20, 2015, but was not entered on
the docket until March 16, 2015, and the order indicates that it was mailed
to the parties on that same date. Mother’s notice of appeal, filed April 6,
2015, is therefore timely. See Pa.R.A.P. 108(b); In re L.M., 923 A.2d 505
(Pa. Super. 2007) (appeal was not untimely where there was no indication
on the docket that Rule 236 notice had been given).
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County, on October 14, 2014. After a support conference, the conference

officer entered an order imputing an earning capacity to Mother and directed

Father to pay $560.13 in basic support and $60 in arrears per month.

      Mother filed a pro se request for a de novo hearing in the trial court. A

hearing was held on February 12, 2015. It is undisputed that Father has a

pre-existing support order for prior children from another family. At the

conclusion of the hearing, the trial court entered an order that, among other

things, found that it was unnecessary to determine Mother’s earning

capacity, as Father’s liability for support of all his children was capped at

50% of his income, and the pre-existing support order consumed over two-

thirds of Father’s income. The trial court declined to address Mother’s claim

for unreimbursed birth expenses, as it concluded that the issue was not

before it. Finally, the trial court ordered the conference officer to recalculate

the order pursuant to these findings. On February 20, 2015, the trial court

signed the recalculated order.

      On appeal, Mother raises four issues with the trial court’s order. The

first two issues challenge the trial court’s application of Pa.R.C.P. 1910.16-

7(b) to this case. Rule 1910-16-7(b) provides, in relevant part, that

      [w]hen the total of the obligor’s basic support obligations
      exceeds fifty percent of his or her monthly net income, the court
      may consider a proportional reduction of these obligations.
      Since, however, the goal of the guidelines is to treat each child
      equitably, in no event should either a first or later family receive
      preference.




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The Rule proceeds to provide examples of its application, all of which

indicate that a court must calculate the guideline support obligation to all

families separately before applying a proportional reduction to the obligation

to all families.

       Furthermore, this Court has held under other circumstances that

deviations from the guideline amounts “must be made after the guideline

amount is determined.” McCarty v. Smith, 655 A.2d 563, 566 (Pa. Super.

1995) (emphasis in original). Thus, the trial court was required to determine

Mother’s income under the guidelines, and then determine Father’s

presumptive guideline obligation to the parties’ child. The trial court failed to

do so. Similarly, the trial court failed to rule on Mother’s claim that she

should not be assessed an earning capacity due to the nurturing parent

doctrine. Application of the nurturing parent doctrine requires factual

findings and credibility assessments, which are within the bailiwick of the

trial court. We therefore vacate and remand for the trial court to address

Mother’s nurturing parent claim, determine what Mother’s income is under

the guidelines, and then calculate Father’s presumptive guideline support

liability.

       Once that is done, and assuming, as appears clear from the record,

that Father’s total obligations to both families would exceed 50% of his

income,      the   trial   court   must   reduce   his   obligation   to   each   family

proportionally, showing no preference for either family. See Pa.R.C.P., Rule


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1910.16-7(b). This procedure will also address Mother’s third issue on

appeal, where she challenges the trial court’s 55/45 split, between Father

and Mother respectively, of the child’s unreimbursed medical expenses in

light of her contention that she should not be assessed any income pursuant

to the nurturing parent doctrine. If the trial court concludes that Mother has

established the application of the doctrine, it should recalculate this liability

as well.

      In her fourth and final issue on appeal, Mother asserts that the trial

court erred in failing to address her claim for unreimbursed birth-related

expenses for the child. The trial court ruled that the issue was not before it.

However, Mother’s petition includes a claim for these expenses. We

therefore agree with Mother that it was error for the trial court to fail to

address this claim. On remand, the trial court must address this issue.

      As we have vacated the order and concluded that factual findings and

re-calculations are required, we leave it to the discretion of the trial court as

to what proceedings, if any, it requires to address the issues on remand.




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     Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2016




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