The child support guidelines were amended in December 2011, when the Supreme Court Domestic Relations Rules Committee enacted Rule 1910.11(d)(3). The new rule, which is targeted at cases where one or both parties are unrepresented, requires the court to perform a calculation of the child support guidelines even if the parents have an agreement. The Rule was not intended to thwart settlements between parents, but “so that they can enter an agreement knowingly.” By requiring the court to calculate the child support guideline, it is hoped that unrepresented parents will understand better what they are getting or giving up in their settlements.
Submit 2011 Medical Expenses for Reimbursement Now
Under the Pennsylvania support guidelines, parents (and spouses who are receiving support) may be entitled to receive reimbursement of their medical expenses that were not paid by insurance, including copayments, deductibles, prescription and over-the-counter medications, and other out-of-pocket medical, dental and optical expenses. Generally the parent or spouse receiving support is required to pay the first $250 per year per person, but any expenses in excess of that threshold are allocated between the parents or spouses in proportion to their net incomes.
Additionally, the support guidelines provide for reimbursement of child care expenses, private school tuition and summer camps, and extracurricular activities for children.
In order to receive any reimbursement for medical expenses for 2011, the parent or spouse who paid the expense must submit a detailed request to the other parent, including the date, amount and nature of the expense; and proof of payment. If a request is not made by March 31, 2012, the right to receive reimbursement may be forfeited for 2011.
The lawyers and paralegals of my law firm frequently assist our clients in preserving or defending these types of claims. Contact Brian Vertz (or my assistant Ms. Kelly) for further information.
Trial by Ambush in Child Support Cases?
For the third time in several months, a panel of the Superior Court has considered whether to require litigants to plead specific grounds for modification of child support. Each time the Court has favored a less-restrictive policy, but dissenting opinions in these cases indicate a difference of opinion among the Superior Court jurists.
In Summers v. Summers, 2012 PA Super 3 (1/5/2012), Judge Strassberger refused to overturn the trial court’s decision to modify child support, in a case where the father did not give any notice in his petition as to why the trial court should modify his obligation. Using the standard court-issued form, the petitioner checked a box but did not fill in the blank to describe his grounds for modification. His obligation was initially modified at the conference level, and then further modified at a de novo hearing subsequently requested by the mother. On appeal, the defendant argued that her due process rights were violated when the trial court proceeded without advance notice of the nature of father’s claims. The mother also challenged the trial court’s reliance on a physician’s information request form issued by the court, which the father offered into evidence to prove his disability.
The Superior Court’s decision is intriguing, not only for what Judge Strassburger said, but also what he did not say in his opinion. First, in dismissing the mother’s due process argument, the Superior Court placed great weight on the fact that mother had an opportunity to prepare for the de novo hearing after the support conference where father’s claims were first revealed. The Court observed that a conference summary mailed to the parties contained a reference to the physician’s information request form describing the father’s disability. Still, the Court did not even distinguish between the bifurcated support procedure under Rule 1910.16-11 and the expedited procedure under Rule 1910.16-12. In affirming the trial court’s decision, the Superior Court simply held that the defendant suffered no prejudice in this case. What if the hearing had proceeded on the same day, as is done in Allegheny County? Judge Strassburger did not comment on whether his opinion would be different if several weeks had not elapsed between the conference and the hearing.
Second, the opinion did not place any emphasis on the fact that the final support order was an increase from the initial support order, replacing an interim order that temporarily decreased the obligation. That fact, and the fact that the opinion was published, leads this author to believe that the Court meant to relax the pleading requirements in child support cases, or at least to dismiss any notion that the due process rights of defendants might be violated by the existing court-issued forms for modifying child support.
Little effort was made in the Court’s opinion to reconcile what appears to be a clear violation of Rule 1910.19(a), which requires the petitioner to “specifically aver the material and substantial change in circumstances upon which the petition is based.” Nor did the Court mention the recent amendment of Rule 1910.3(b) or the Court’s recent decision in Brickus v. Dent, 5 A.3d 1281 (Pa.Super.2010)(2-1).
A well-argued dissenting opinion was issued by Judge Donohue, who would have vacated the trial court’s decision to modify child support. In her dissent, Judge Donohue cited a sentence from Brickus where the Court held that each party should have advance notice of claims in order to prepare and advocate its position. Judge Donohue argued that ignoring the dictates of Rule 1910.19(a) would thwart settlement by delaying notice of the petitioners’ claims, thereby increasing the court’s burden. She also noted that the defendant had to suffer an unwarranted restriction of her family’s cash flow from the date of the support conference until the de novo hearing. Judge Donohue also disagreed with the Court’s decision to permit the use of the physician’s information request, since the conference officer would not even allow mother to view it until the midst of the de novo hearing.
The recent amendments of Rule 1910.3(b) does not appear to resolve the issues raised by this case, so it appears that the difference of opinions will continue until resolved by the Supreme Court.
Can I Use Take-Home Pay to Calculate Child Support?
The latest episode of my podcast, Making Divorce Easier, deals with an issue that arises frequently in child support proceedings. Calculating child support requires knowing your net available income under Pennsylvania support guidelines. This podcast will discuss the differences between take-home pay and net available income. Can you rely on your paystub to calculate child support? This episode answers that question.
Paying Child Support Electronically with ExpertPay
Last week I posted about methods of paying child support in Pennsylvania. This week I want to highlight a couple of electronic methods of paying child support, which might be useful for payors who are self-employed, own a business, or must submit supplemental payments in addition to a wage attachment against their salary.
In Pennsylvania, all support payments must be submitted to the Pennsylvania State Collection and Disbursement Unit, which we call PA-SCDU or “Ski-Doo.” Payments that are sent directly to the recipient are not credited until the recipient files a Notice to Credit Direct Payment. PA-SCDU publishes an excellent handbook on electronic child support payments on their website. The booklet is written for employers but provides valuable information for anyone who wishes to submit support payments electronically.
One new option is a service called ExpertPay. ExpertPay is an on-line payment mechanism to submit court ordered support payments via electronic funds transfer from your bank account directly to PA-SCDU. Their website contains the answers to frequently asked questions:
Question: What are the initial costs for ExpertPaySM?
Answer: There is a one time registration fee of $2.50 charged to you the first time a payment is submitted. In some states, you will also be charged a transaction fee of $1.25 per remittance that will be debited from your account for each submitted payment. If you have multiple cases, each subsequent remittance with the other case information will be charged $1.25. You should also contact your bank regarding potential processing fees. Some states are offered at rates other than our standard rate.
Their website states that payments are submitted to PA-SCDU five business days after they are debited from your bank account. For this reason, I would suggest using a different method if you are close to the deadline for your payment. Remember that late payments can cause the entire arrears balance to be due in full immediately, which will be reported to credit bureaus as a delinquent obligation and affect your FICO credit score.
Another option that is recommended by PA-SCDU is e-ChildsPay.com, which can process credit card payments. Their website is somewhat vague, but claims that they can make secure credit card child support payments instantly for a fee.
Is there a fee charged for this service?
Yes. There is e-childsPay.com charges a convenience fee to use this service to make your child support payment. This fee is separate from the child support obligation you are paying. The fee will be added to your payment, regardless of the payment amount.
The fees are not described on their website. PA SCDU also accepts Visa® or MasterCard® payments by telephone by calling PA SCDU toll free at 1-800-955-2305.
How to Pay Child Support in Pennsylvania
“How do I pay my child support?” is a question I am frequently asked by clients. Pursuant to federal and state law, child support orders must be paid via wage attachment unless the support recipient agrees in writing to waive it. Even if the wage attachment is waived, the payments must be submitted to the Pennsylvania State Collection and Disbursement Unit in Harrisburg (which we call “SCDU” or “Ski-Doo”).
Federal law imposes a limitation on how much money SCDU can deduct from a payor’s wages: 50% of the payor’s net income if he is supporting a second family or 60% if he is not. If a support order exceeds the applicable cap, then the payor is required to submit a supplemental payment every pay period to make up the difference. This supplemental payment must be made through PA-SCDU in Harrisburg, not directly to the recipient.
The most common situation where the wage attachment is more than 50% is where the payor earns bonuses or overtime that are counted as part of his net income. Those bonuses or overtime are annualized or averaged over the course of a year when calculating net available income, but most paychecks are below average with a few “big” paydays during the year. Sometimes, when payors are paid bi-weekly (26 times per year), the same problem occurs.
Calculating the supplemental payment that the payor must submit can be challenging, but it can be done. Here’s how I do it:
1. First, figure out how much you are required to pay each pay period. The support order is expressed in monthly amounts, so multiply the monthly support order times twelve (x 12). This yields the annual support amount.
2. Next, divide the annual support amount by the number of pay periods per year. If you are paid bi-weekly, divide by 26. If you are paid twice per month on the fifteenth and thirtieth, divide by 24. If you are paid monthly or weekly, divide by 12 (monthly) or 52 (weekly). This calculation yields the support amount per pay period.
3. Next, subtract the “support amount per pay period” from the wage attachment that appears on your pay stub. The difference is the supplemental amount that you should submit.
PA-SCDU will accept payments by check, money order, credit card, or electronic funds transfer. There is lots of good information about paying child support on the PA-SCDU website.
2011 Child Support Law Update
Once again this fall, I am the course planner, author and lecturer for the child support portion of Family Law Update, an annual survey of the latest developments in Pennsylvania’s child support law and procedures. A copy of my PowerPoint presentation is available here. While there weren’t many new precedents published this year by the Pennsylvania courts, there have been some meaningful changes to the procedural rules and child support guidelines. Family Law Update will be presented in Pittsburgh on October 26, 2011; and on November 8, 2011, it will be presented again in Mechanicsburg and broadcast to dozens of satellite locations around Pennsylvania.
Pennsylvania Child Support Guidelines Amended
The Pennsylvania child support guidelines were modified slightly on August 3, 2011, effective September 3, 2011.
1. Shared Custody Adjustment. The guidelines grant a reduction in child support for parents who have custody of their children 40% to 50% of the time. (No adjustment is authorized if a parent has custody less than 40% of the time.) Still, the guidelines did not explain how to apply this adjustment when there were multiple children with different custody schedules. Now, in cases where there is more than one child, and each child spends different amounts of time with each parent, the Rules require the court to take an average percentage. If the average percentage is more than 40%, then the reduction in child support will be applied. The modified rules also clarify that high income cases are subject to the shared custody adjustment.
2. Medical insurance premiums. A sentence has been added to the medical insurance provisions of the child support guidelines to clarify that the insurance premium paid by the parent who owes child support shall not be allocated between the parents.
3. Social Security benefits. The guidelines previously provided that Social Security benefits being received by a child would be added to the parents’ net incomes and then deducted from the child support award. A sentence has been added to state that this applies only if the parent who receives child support is receiving the Social Security benefit for the child. If the parent who pays child support receives the benefit, the benefit is added to that parent’s income and is not deducted from the child support award.
4. Right to initiate support. The new rules provide that a parent or spouse who owes support may initiate the action, which is a significant change from the past that allows a support-owing spouse to obtain the tax advantages of a written order. The parent who has primary custody is the parent who will receive child support. In cases where custody is shared equally, the parent who has less income will receive child support.
Additio
Child Support Contempt Defendants Not Entitled to Counsel, Says U.S. Supreme Court
Child support contempt defendants are not entitled to court-appointed representation even in cases where incarceration is threatened, says the U.S. Supreme Court, but the state courts must follow procedures that ensure the fundamental fairness of contempt proceedings. In Turner v. Rogers, Docket No. 10-10, June 20, 2011, the Court considered the rights of a South Carolina defendant who had been held in contempt of a child support order five times in three years. Each time, the Defendant Michael D. Turner (“Father”) paid the purge condition, twice without being jailed and twice after being jailed for a few days. In the fifth proceeding, Father did not pay and served a six month sentence in jail. Just weeks after his release, Mr. Turner received another hearing notice to show cause why he should not be held in contempt.
At the sixth contempt hearing, Father testified that he had been addicted to meth and marijuana, broke his back, and applied for disability and SSI. He was approximately two years behind in child support payments. He asked the trial court for an opportunity to catch up. The trial court held him in contempt, sentencing him to one year in jail with no good-time or work credits, but eligible for work release if he could find a job. The trial judge’s ruling did not explicitly address Father’s ability to pay and left blank the areas in a preprinted form where the court could indicate whether the defendant was working and had the ability to pay.
While serving time, Father filed an appeal with the assistance of pro bono counsel. The South Carolina Supreme Court rejected his argument that he was entitled to court-appointed counsel at his civil contempt hearing under the U.S. Constitution, distinguishing civil contempt proceedings from criminal contempt. The U.S. Supreme Court granted certiorari, noting a split among state supreme courts concerning the right to counsel in civil contempt proceedings.
The U.S. Supreme Court first considered whether the 14th Amendment due process clause guarantees indigent contemnors the right to court-appointed representation in civil contempt proceedings that may lead to incarceration, a novel federal question[1] distinct from the 6th Amendment right to counsel in criminal proceedings (including criminal contempt). The Court reiterated the well-known principle that civil contempt proceedings are intended to coerce the defendant to comply with a court’s order, rather than to punish, and that a defendant may not be held in contempt where he or she lacks the ability to comply. The defendant “carries the keys of his prison in his own pockets” and is purged of civil contempt when he complies with the order. Id.
The Court acknowledged that the 14th Amendment due process clause offers fewer procedural protections in civil cases than the 6th Amendment in criminal cases, which is why the defendant may bear the burden in civil contempt proceedings to prove their inability to comply. See Hicks v. Feiock, 485 U.S. 624 (1988); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442 (1911); accord, Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Travitsky v. Travitsky, 534 Pa.Super. 1081 (Pa.Super.1987).
Next, the Supreme Court examined the role of civil contempt proceedings in family law, which is to ensure the payment of funds necessary for the support of children, often to reimburse welfare funds paid by the states to indigent families. The Court observed the complex network of regulations and agencies established to regulate and monitor child support collections, including expedited procedures, statewide guidelines, mandatory wage attachment, and interstate reporting and enforcement.
The Court in Turner also referenced its earlier decision in Matthews v. Eldridge, 424 U.S. 319, 335 (1976), which established three criteria for measuring the fundamental fairness of civil proceedings under the 14th Amendment due process clause: (1) the private interest to be affected in the proceeding; (2) the risk of erroneous deprivation of that interest with and without additional or alternative procedural safeguards; and (3) the governmental interest involved, including the fiscal and administrative burdens the additional procedural requirements would entail. Accord, Corra v. Coll, 451 A.2d 480 (Pa.Super. 1982). Applying those criteria, the Turner Court found that the defendant’s private interest in personal liberty was a strong factor in favor of court-appointed representation, particularly in ensuring accurate decision-making on the issue of the defendant’s ability to comply. The Court stated that “an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.” Id.
Yet, the Supreme Court held that three other considerations weighed more heavily in favoring of not requiring court-appointed counsel in civil child support contempt proceedings. Those considerations were: (1) the relative simplicity of judging the contemnor’s ability to pay; (2) the risk of assymetry in a category of cases where the custodial parent seeking enforcement is equally likely to be indigent; and (3) the availability of alternative procedural safeguards, including notice to the defendant that “ability to pay” is a critical issue in the hearing, the use of forms to elicit the defendant’s financial information, the opportunity for a defendant to testify about his or her ability to pay and an express finding by the court about the defendant’s ability to pay. Ultimately, the Court held that these procedural safeguards might be an adequate substitute for court-appointed legal representation in child support contempt proceedings.
Interestingly, the Supreme Court noted that its decision did not apply to Title IV-D cases where the primary purpose of the contempt hearing is the collection of child support to reimburse welfare payments made to the custodial parent. Comparing those cases to “debt collection proceedings,” the Court found that the state is likely to have legal representation. The Court did not specifically rule on that category of cases, but its silence is not mute. The Court also declined to rule on complex cases “where a defendant can fairly be represented only by a trained advocate.” These clarifications greatly limit the scope of the Court’s decision in Turner.
Turning to the facts of the case, the U.S. Supreme Court found that Father was neither afforded counsel nor the benefit of alternative procedural safeguard to ensure fundamental fairness. He did not receive clear notice that his ability to pay was a critical issue, nor a form to elicit his financial information. The trial court had left blank the portion of its order where a finding of the defendant’s ability to pay should be completed. The decision was vacated and case remanded for further proceedings.
Four Justices, led by Justice Thomas, dissented from the majority opinion authored by Justice Breyer. First, Justice Thomas wrote that even the Sixth Amendment does not guarantee the right to court-appointed counsel in criminal proceedings, but merely “the right to employ counsel,” as it was “originally understood.” Justice Thomas also noted that Father had cited no binding authority requiring the appointment of counsel in civil contempt proceedings. (This portion of the dissenting opinion was not joined by Justices Roberts and Alito.)
Justice Thomas went on to say that even under the Court’s “modern interpretation” of the Constitution, the Due Process Clause does not require the appointment of counsel for indigent defendants facing incarceration in civil contempt proceedings. The Gideon protections afforded to criminal defendants under the Sixth Amendment does not extend beyond criminal proceedings under existing law and precedent. Gideon v. Wainwright, 372 U.S. 335 (1963). The Justice rejected Father’s argument that due process requires the extension of those protections to civil proceedings where imprisonment is possible. Justice Thomas cited a string of cases where the Court had rejected pleas for the appointment of counsel in civil cases on the grounds of due process and fundamental fairness, including Lassiter, Gagnon, and Middendorf, supra.
Finally, Justice Thomas attacked the majority’s ruling that civil contempt proceedings require procedural safeguards in lieu of court-appointed counsel in cases where imprisonment is threatened. The Justice expressed his opinion that the issue had not been argued or developed in the state court proceedings, and was first raised by the Solicitor General in an amicus brief. No substantive argument was offered by Justice Thomas in opposition to this aspect of the Court’s decision, other than carping about the manner in which the issue had been raised on appeal. The Justice concluded his dissent by remarking on the hopelessness of attempting to collect child support, and the immorality of parents who do not raise their children within the confines of intact marriages.
[1] The Court noted analogous, but not controlling, decisions in civil cases involving juvenile delinquency, In re Gault, 387 U.S. 1 (1967); involuntary hospitalization of inmates, Vitek v. Jones, 445 U.S. 480 (1980); and termination of parental rights, Lassiter v. Dept. of Soc. Srvcs. of Durham Cty., 452 U.S. 18 (1981). While these cases held generally that defendants facing incarceration are entitled to legal representation, the Court also noted cases where the threat of imprisonment did not create a right to counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation); Middendorf v. Henry, 425 U.S. 25 (1976) (court-martial).
Homeschooling Children Does Not Justify Alimony, says Superior Court
In Kent v. Kent (March 18, 2011), the Superior Court of Pennsylvania rejected a parent’s argument that she should be entitled to collect alimony for a period of eleven years so that she could continue to homeschool the parties’ minor children. It was undisputed in this case that the mother had withdrawn from the workforce five years earlier in order to home-school the parties’ children, which she continued to do up to the date of trial. The wife had resigned her position as a teacher and began to collect a reduced public pension in order to supplement the family’s finances. The husband argued that homeschooling was not a joint decision and did not require so much of wife’s time as to prevent her from working. The trial court awarded alimony to wife for a period of three years rather than the requested eleven years.
On appeal, the Superior Court cited the paucity of controlling case law. The Court observed that a body of law concerning the payment of private school tuition (Fitzgerald, Gibbons, et al) did not control, since those cases were governed by the child support guidelines, not the statutory alimony criteria (where a spouse’s ability to become self-supporting through appropriate employment is paramount). Instead, the Court relied upon a decision of the Arkansas Supreme Court, holding that alimony was appropriate where the homeschooling parent had no employable skills, education or experience.
Examining the wife’s work history in this case, the Superior Court affirmed the trial court’s finding that the homeschooling wife was capable of returning to work within three years. The Court also endorsed the husband’s reasoning that economic decisions made during coverture might no longer be viable when an intact family breaks into two separate households. The Court emphasized that its decision was not motivated by a policy against homeschooling, but a simple affirmance of the trial court’s application of statutory criteria.