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

The allocation of additional expenses may be subject to a deviation analysis pursuant to Pa.R.Civ.P. 1910.16-5. For example, a deviation may be considered if the allocation of additional expenses would reduce a party’s monthly net income below the self-support reserve.

Subdivision (a)(1)(i) Example: Mother has primary custody of the parties’ two children and Father has partial custody. The parties’ respective monthly net incomes are $2,000 and $3,500. At the combined monthly net income of $5,500 for two children, the basic child support obligation is $1,694. As Father’s income represents 64% of the parties’ combined monthly net income, Father’s basic child support obligation is $1,084. Mother incurs monthly child care expenses of $400, and Father incurs $100 per month. The total child care expenses, $500, will be allocated between the parties, with Father paying 64%, or $320. As Father is paying $100 for the children’s child care during his partial custody, he would pay the remaining $220 to Mother for a total child support obligation of $1,304 ($1,084 + $220).

Concerning subdivision (a)(1)(ii), see Pa.R.Civ.P. 1910.16-2(d)(4) for earning capacity determination. Hypothetical child care expenses that are less than a parent’s earning capacity may be allocated pursuant to subdivision (a)(1)(ii). Only those hypothetical child care expenses that the parent would actually pay, if employed, should be allocated. See Pa.R.Civ.P. 1910.16-2, cmt.

Subdivision (b) does not apply to Medical Assistance. See 23 Pa.C.S. § 4326(l).

Subdivision (b)(1)-(b)(2) Example 1: If the parties are separated, but not divorced, and Husband pays $200 monthly for employer-provided health insurance for himself, Wife, the parties’ child, and two additional children from a previous marriage, 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 of $80 to be excluded from allocation. Deduct this amount from the total premium to arrive at the premium to be allocated between the parties—$120. Since Husband is paying the premium, and spouses have a statutory duty to support one another pursuant to 23 Pa.C.S. § 4321, Wife’s percentage share of the $120 is deducted from Husband’s support obligation. If Wife had been providing the coverage, Husband’s percentage share would be added to his basic support obligation.

Subdivision (b)(1)-(b)(2) Example 2: If the parties are divorced and Father pays $200 monthly for employer-provided health insurance for himself, the parties’ child, and two additional children from a previous marriage, 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 premium attributable to Father and the two other children is $150 ($200 premium divided among four covered persons equals $50 per person multiplied by three) and that amount is deducted from the total premium, leaving $50 ($200 - $150 = $50) to be allocated between the parties.

Subdivision (b)(1)-(b)(2) Example 3: The parties are divorced, and Mother is the obligee of a child support order. Father, the obligor, pays $200 monthly for employer-provided health insurance for himself and the parties’ child. Mother pays $400 per month for her employer-provided health insurance that covers only herself. The premium Father pays to cover the parties’ child, $100 ($200 premium divided between two covered persons, Father and the child), will be allocated between the parties in proportion to their respective monthly net incomes. The premium that covers Father will not be allocated because the parties are no longer married, and he is not owed a duty of support by Mother. The premium Mother pays to provide her own coverage will not be allocated because the parties are no longer married and she is not owed a duty of support by Father.

Concerning subdivision (b)(3), the maximum amount of any attachment for child and medical support is set forth by the federal Consumer Credit Protection Act, 15 U.S.C. § § 1601 et seq.

Subdivision (c) is intended to implement 23 Pa.C.S. § 4326(e).

An unreimbursed medical expense may be unreasonable if it was an avoidable expense incurred solely by the party requesting reimbursement, e.g., expenses for missed office visits, excessive supplies, purchases of name brand medications when generic medications are suitable and available, denial of insurance coverage because of a failure to comply with plan requirements, or non-emergency out-of-network expenses pursuant to subdivision (c)(4).

The determination of medical necessity of a medical service or medical supplies can be made in a support proceeding or a custody proceeding. Even if challenged during a support proceeding (rather than a custody proceeding), the necessity of a medical service or medical supplies, which results in an unreimbursed medical expense for which a party seeks allocation subject to subdivision (c)(1)(ii), should be determined by the trier-of-fact, and subject to review by a judge if the trier-of-fact is not a judge.

If the trier-of-fact determines that a party acted reasonably in obtaining services that were not specifically set forth in the order of support, payment for such services may be ordered retroactively.

Pursuant to subdivision (c)(1)(iii), medical expenses for cosmetic, chiropractic, or other services may be, but are not required to be, allocated between the parties by the trier-of-fact if such expenses are reasonable and necessary.

Historical Commentary

The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:

Explanatory Comment—2004

Subdivision (a), relating to the federal child care tax credit, has been amended to reflect recent amendments to the Internal Revenue Code, 26 U.S.C. § 21. By generally referencing the Tax Code, rather than incorporating current Code provisions in the rule, further amendments will be incorporated into the support calculation.

Explanatory Comment—2005

Pa.R.C.P. No. 1910.16-6 governs the treatment of additional expenses that warrant an adjustment to the basic support obligation.

Subdivision (a) relates to child care expenses. Subdivision (a) has been amended to require that child care expenses incurred by either party are to be allocated between the parties in proportion to their respective net incomes. Subsection (a)(1), relating to the federal child care tax credit, was amended in 2004 to reflect recent amendments to the Internal Revenue Code. 26 U.S.C. § 21. By referring to the Tax Code in general, rather than incorporating current Code provisions in the rule, any further amendments will be incorporated into the support calculation. Since the tax credit may be taken only against taxes owed, it cannot be used when the eligible parent does not incur sufficient tax liability to fully realize the credit. For this reason, subsection (2) provides that no adjustment to the total child care expenses may be made if the eligible parent does not qualify to receive the credit.

Subdivision (b) addresses health insurance premiums. The cost of the premiums is generally treated as an additional expense to be allocated between the parties in proportion to their net incomes. Subdivision (b)(1) of the rule permits allocation of the entire premium, including the portion of the premium covering the party carrying the insurance, when the insurance benefits the other party and/or the children. Subdivision (b)(2) clarifies 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, so long as there is a statutory duty of support owed to that party, but not the portion of the premium attributable to non-parties and children who are not the subjects of the support order. Subdivision (b)(2) provides for proration of the premium when the health insurance covers other persons who are not subject to the support action or owed a statutory duty of support. Subdivision (b) also permits an alternative method for dealing with the cost of health insurance premiums in certain circumstances. While, in general, the cost of the premiums will be treated as an additional expense to be allocated between the parties in proportion to their net incomes, in cases in which the obligee has no income or minimal income, subsection (4) authorizes the trier-of-fact to reduce the obligor’s gross income for support purposes by some or all of the amount of the health insurance premiums. This is to avoid the result under a prior rule in which the entire cost of health insurance would have been borne by the obligor, with no resulting reduction in the amount of support he or she would otherwise be required to pay under the support guidelines. The goal of this provision is to encourage and facilitate the maintenance of health insurance coverage for dependents by giving the obligor a financial incentive to maintain health insurance coverage.

Subdivision (c) deals with unreimbursed medical expenses. Since the first $250 of medical expenses per year per child is built into the basic guideline amount in the child support schedule, only medical expenses in excess of $250 per year per child are subject to allocation under this rule as an additional expense to be added to the basic support obligation. The same is true with respect to spousal support so that the obligee-spouse is expected to assume the first $250 per year of these expenses and may seek contribution under this rule only for unreimbursed expenses which exceed $250 per year. The definition of ‘‘medical expenses’’ includes insurance co-payments, deductibles and orthodontia and excludes chiropractic services.

Subdivision (d) governs apportionment of private school tuition, summer camp and other unusual needs not reflected in the basic guideline amounts of support. The rule presumes allocation in proportion to the parties’ net incomes consistent with the treatment of the other additional expenses.

Subdivision (e) provides for the apportionment of mortgage expenses. It defines ‘‘mortgage’’ to include the real estate taxes and homeowners’ insurance. While real estate taxes and homeowners’ insurance must be included if the trier-of-fact applies the provisions of this subdivision, the inclusion of second mortgages, home equity loans and other obligations secured by the marital residence is within the trier-of-fact’s discretion based upon the circumstances of the case.

Explanatory Comment—2006

A new introductory sentence in Pa.R.C.P. No. 1910.16-6 clarifies that additional expenses contemplated in the rule may be allocated between the parties even if the parties’ respective incomes do not warrant an award of basic support. Thus, even if application of either formula Pa.R.C.P. No. 1910.16-4 results in a basic support obligation of zero, the trier-of-fact may enter a support order allocating between the parties any or all of the additional expenses addressed in this rule.

The amendment of subdivision (e) recognizes that the obligor may be occupying the marital residence and that, in particular circumstances, justice and fairness may warrant an adjustment in his or her support obligation.

Explanatory Comment—2008

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 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 should be apportioned between the parties. 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.

Explanatory Comment—2010

Subdivision (e), relating to mortgages on the marital residence, has been amended to clarify that the rule cannot be applied after a final order of equitable distribution has been entered. To the extent that Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003), holds otherwise, it is superseded. At the time of resolution of the parties’ economic claims, the former marital residence will either have been awarded to one of the parties or otherwise addressed.

Explanatory Comment—2018

The amendments provide for an adjustment to the parties’ monthly net incomes prior to determining the percentage each party pays toward the expenses set forth in Pa.R.C.P. No. 1910.16-6. Previously, the Rules of Civil Procedure apportioned the enumerated expenses in Pa.R.C.P. No. 1910.16-6(a)—(d), with the exception of subdivision (c)(5), between the parties based on the parties’ respective monthly net incomes as calculated pursuant to Pa.R.C.P. No. 1910.16-2. This apportionment did not consider the amount of support paid by the obligor or received by the obligee.

The amended rule adjusts the parties’ monthly net incomes, upward or downward, by the spousal support/APL amount paid or received by that party prior to apportioning the expenses. This methodology is not new to the Rules of Civil Procedure. In Pa.R.C.P. No. 1910.16-6(c)(5)(rescinded), the parties’ monthly net incomes in spousal support/APL-only cases were similarly adjusted prior to the apportionment of unreimbursed medical expenses. Likewise, Pa.R.C.P. No. 1910.16-6(e) considers the parties’ monthly net income after the receipt or payment of the support obligation for purposes of determining a mortgage deviation. As the new procedure adopts the methodology in former subdivision (c)(5), that subdivision has been rescinded as delineating the spousal support only circumstance is unnecessary.

Lastly, the amendment consolidates Pa.R.C.P. No. 1910.16-6(b)(1), (2), and (2.1).