Civil Procedure, Childcare costs; Pa. R.C.P. 1910.16-6(a)
M.M.F v. M.F., 2022 WL 374322 (Pa. Super. 2022) (unreported), allocatur granted August 15, 2022, appeal docket 36 WAP 2022
M.F. (Father) appeals from the Court of Common Pleas of Allegheny County Family Court (trial court) that dismissed Father’s exceptions to the hearing officer’s recommendations relating to the child support paid to M.M.F. (Mother)for the support of the parties’ eleven-year-old child (Child). The factual and procedural history of this case is as follows:
The parties were married on July 1, 2006[,] and separated on July 31, 2017. They were divorced on September 12, 2019. The parties entered a Consent Order settling economic claims on September 10, 2019. This settlement agreement included a PACSES Order including child support, payments for  [C]hild’s dance lessons, and alimony, for a total of $4,342 [per month].
The PACSES Order was entered in October 2019. On February 14, 2020, Father filed a petition to modify his child support payment. A hearing on the modification was held on October 8, 2020, and the [h]earing [o]fficer issued his recommendations on November 6, 2020.
In his recommendations, the [h]earing [o]fficer found that Mother has a monthly net income of $5,220, and Father has a monthly net income of $14,081. He recommended that Father pay $3,215.88 per month in child support plus $25 in arrears, retroactive to February 14, 2020. Father also pays Mother $1[,]000 per month in alimony, which end[ed] in September 2021. Father’s total monthly payment is $4,215.88 plus 73% of  [C]hild’s unreimbursed medical expenses and other agreed upon expenses.
In his explanation, the [h]earing [o]fficer noted that Mother, although on sabbatical from her job as a teacher, was assigned her usual income of $5,220 per month pursuant to Pa.R.C[iv].P. 1910.16-2(d)(1). He also found that she credibly testified that day[ ]care . . . for  [C]hild, who is completing her schooling remotely due to the pandemic, would cost $2,800 per month, and included that in his calculation.
Both parties then filed exceptions. On March 16, 2021, this court dismissed the exceptions and made the [h]earing [o]fficer’s recommendations a final order.
Slip op. at 1-2. Father appealed the trial court’s decision raising two issues, only one of which is subject to review on appeal to the Supreme Court: “Was it error for the [t]rial [c]ourt to direct that Father pay for day care costs when Rule 1910.16-6(a) only allows for the [c]ourt to make the payor pay for expenses actually paid?” Slip op. at 2 (emphasis omitted).
Father questioned “whether it was proper for Father to be ordered to reimburse Mother for fictional childcare expenses[.]” Slip op. at 4 (internal quotations omitted). Father specifically argued that the trial court incorrectly charged him for childcare expenses that Mother did not and will not incur. Father relies on Rule 1910.16-6(a), which provides, in pertinent part: “Reasonable child care expenses paid by the parties, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their monthly net incomes.” Slip op. at 4. Based on the language in the rule, Father argued that only child care “expenses that were actually incurred can be included in the calculation of child support due.” Slip op. at 4. With respect to Father’s argument regarding child care costs, Superior Court agreed with the trial court’s explanation which stated:
Father next alleges that it was unreasonable for the [h]earing [o]fficer to find Mother’s testimony regarding childcare costs credible. Under Samii [v. Samii, 847 A.2d 691 (Pa. Super. 2004], the [h]earing [o]fficer, as the fact-finder, “is entitled to weigh the evidence presented” and assess the credibility of witnesses and evidence. Samii, supra. Here, Mother testified that the cost of hiring someone to take care of . . . [C]hild for 8.5 hours 5 days per week while . . . [C]hild completes her remote schooling and [M]other would be at work, would be $2,800. Per Samii, it was within the [h]earing [o]fficer’s discretion to weigh Mother’s testimony and to find Mother’s testimony credible as to the cost to provide childcare.
Father next takes issue with the fact that the childcare expenses are not actually incurred by Mother because she is home with . . . [C]hild after taking a sabbatical from her work. However, the [h]earing [o]fficer did not take Mother’s sabbatical into account and instead assigned her a full-time earning capacity. When determining earning capacity, the court is required to consider several factors. Morgan v. Morgan, 99 A.3d 554, 558 (Pa. Super. 2014). Under Pa.R.C[iv].P. 1910.16.2(d)(4), these factors that must be considered are the “[a]ge, education, training, health, work experience, earning history and child care responsibilities.” Pa.R.C[iv].P. 1910.16-6(a) states that “the trier-of-fact shall allocate reasonable child care expenses paid by the parties, if necessary to maintain employment.” Here, the [h]earing [o]fficer assigned Mother her full-time earning capacity, treating her as if she was working full time. In determining Mother’s earning capacity, the [h]earing [o]fficer considered Mother’s actual work experience and earnings history along with child care responsibilities necessary for her to maintain employment. The [h]earing [o]fficer accepted as credible . . . Mother’s testimony as to the cost of the child care and the reason why the child care would be required. As finder of fact, the [h]earing [o]fficer was entitled to weigh Mother’s evidence and accept its credibility. Samii, supra. Pursuant to Pa.R.C[iv].P. 1910-16-6(a), the hearing officer allocated the reasonable child care expenses that would have been necessary for Mother to maintain employment[,] as the sabbatical was voluntary and the hearing officer applied a full time earning capacity to Mother. Pa.R.C[iv].P. 1910-16-6(d)(1). Here, it would not be equitable to treat Mother as if she has a full time ear[n]ing capacity for one part of the calculation but then deny her the child care costs that would be necessary for her to incur to maintain full time employment for the other part of the calculation. The [h]earing [o]fficer did not abuse his discretion in allocating the child care costs that would be necessary for Mother to incur to maintain full time employment.
Slip op. at 5-6 (underlines omitted). In agreeing with the trial court’s determination and explanation, Superior Court explained that Father’s argument “rests on an imposition of an earning capacity on Mother, while at the same time refusing to consider child care costs because Mother did not continue to work outside the home as a seventh grade English teacher.” Slip op. at 6. Additionally, because the language in Rule 1910.16-6(a) contains the word “shall” and not “may” it was a requirement “to allocate the costs of child care between the parties in proportion to each parent’s income.” Slip op. at 6. Accordingly, Father was not entitled to relief on this issue.
Judge Bowes dissented from the majority’s conclusion that Father must reimburse Mother for fictional child care expenses she did not incur and would “conclude that the trial court abused its discretion in denying Father’s exceptions to this aspect of the hearing officer’s recommendation, reverse the child support order adopting those recommendations, and remand for a recalculation of child support in light of striking the child care expenses.” Dissent slip op. at 1. Judge Bowes argued that neither statutory language nor caselaw supports the majority’s conclusion. Judge Bowes relied on the holding in Portugal v. Portugal, 798 A.2d 246 (Pa. Super. 2002). Judge Bowes explained that in Portugal:
[Superior Court] considered the husband’s claim that the trial court abused its discretion in not permitting him to make payments directly to the children’s child care provider as he alleged his wife did not provide the court with an accurate statement of the cost. [Superior Court] observed that the trial court calculated future child care expenses for 2001 by annualizing the expenses incurred in the first five months of 2001. The husband argued that this calculation did not accurately reflect the future child care expenses that would be incurred in the latter part of 2001 because the eldest child would become a full-time student elsewhere in September 2001, and therefore the daycare expenses would only be for on child from September to December 2001, not two, which is what the court’s calculation assumed. The wife countered that any reduction would not be dramatic as the parties would also lose their discount for enrolling multiple children in daycare. The trial court considered these arguments and concluded “that it would not reduce the parties’ child care expenses because Husband submitted no proof of the occurrence or amount of any such reduction.”
Dissent slip op. at 3-4. The Superior Court held that the trial court did not abuse its discretion and noted that the husband could petition the trial court for a modification of his child support obligations “if he determines that the current child care expenses are not commensurate with his current obligation.” Dissent slip op. at 4.
Applying the holding in Portugal to the current matter, Judge Bowes disagreed with the majority’s conclusion. Specifically, Judge Bowes explained that Mother did not submit any proof of the occurrence of child care expenses and only testified to what these expenses would be if she were to be working full time and not on sabbatical. Judge Bowes further explained that Father’s exceptions to the hearing officer’s recommendations “did precisely what we advised the husband in Portugal to do, i.e., petition the court to modify a support obligation if the current expenses are not commensurate with the currently imposed obligation.” Dissent slip op. at 4-5. Accordingly, Judge Bowes would have found that the trial court abused its discretion in dismissing Father’s exceptions.
The Supreme Court granted allocatur to consider the following issue:
Whether the Superior Court improperly concluded that Father’s child support obligation should include payment for fictional childcare expenses based upon Mother’s deemed earning capacity, when such decision conflicts with Pennsylvania Rule of Civil Procedure 1910.16-6(a) in that the Rule only allows for childcare expenses actually incurred by the other party and does not follow the Superior Court’s prior decision in Portugal v. Portugal, 798 A.2d 246 (Pa. Super. 2002).
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