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decided: July 13, 1984.


No. 68 W.D. Appeal Docket 1983, Appeal from Order of the Superior Court of Pennsylvania entered July 1, 1983, at No. 350 Pittsburgh, 1982, Affirming Order of the Trial Court entered March 29, 1982, by the Court of Common Pleas of Greene County at A.D. No. 90, 1980 (Action for Child Support), Pa. Super. , 463 A.2d 28 (1983)


Harry J. Cancelmi, Jr., Thompson & Baily, Waynesburg, for appellant.

Rochelle S. Friedman, Pittsburgh, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala and Papadakos, JJ., join this opinion. Flaherty and McDermott, JJ., join this opinion and Flaherty, J., files a separate concurring opinion which McDermott, J., joins. Hutchinson, J., files a concurring opinion. Nix, C.j., files a dissenting opinion.

Author: Larsen

[ 505 Pa. Page 466]


Appellant Arden Melzer and appellee Lynn Witsberger were divorced in 1978. On August 20, 1980, appellant was awarded custody of the parties' two minor children.*fn1 In December, 1980, appellant filed a complaint, demanding support from appellee for the two minor children in the amount of $400 per month. During the following year the Greene County Court of Common Pleas held two hearings on appellant's complaint. Subsequently, appellee also filed a complaint for support for travel expenses incurred during visitations with her children.

The hearing court found the following facts:

The father [appellant] is a professor at the University of Pittsburgh, living on and now owning, in his own name a

[ 505 Pa. Page 467]

    farm, located in the western section of this county [Greene County], with a second wife, and the two children. In 1978, he earned $29,726.00, $30,000.00 in 1979, and $32,085.00 in 1980, these being gross earnings. In 1981, his gross pay was $2755.00 per month, with deductions of $1889.00, and when adjusted for certain additional expenses, left a take-home pay of $1524.66, out of which he supported himself and family. Also he had a mortgage payment, and a judgment note acquired to pay several expenses accumulated from the marital separation, with mortgage payments of $260.00 per month and monthly payments on the $12,000.00 judgment note. Also, he had travel expenses to and from Pittsburgh, real estate taxes, utility payments, and farm maintenance costs.

The mother [appellee], at the time, was employed as a social worker at Mercy Hospital [in Pittsburgh], was living in Wheeling, was then married, and commuted to her work. At the date of the first hearing she had just accepted a position at Montefiore Hospital in Pittsburgh as head of Social Services with an annual gross pay of approximately $22,500.00. At the time of the second hearing she was divorced, had moved to Pittsburgh, and had leased a 3-bedroom apartment there. Her gross income in 1981, was $28,000.00, paid at the rate of $1076.00 bi-weekly, with a net pay of $687.14. Also she owns a house in Wheeling worth $48,000.00 from which she received a rental of $340.00, which she stated, was only enough to pay the debt charge, taxes, insurance and maintenance. On her visits with the children, she testified that they share several recreational activities which require more money than the travel expense, and the normal living expenses incidental to the visits.

When examined closely, the mother has approximately $1364.00 per month to cover her living expenses, while the father has $1524.66 for his and the children's living expense.

[ 505 Pa. Page 468]

On March 29, 1982, the hearing court dismissed both complaints,*fn2 concluding:

This is a slightly disproportionate financial circumstance considering the mother has the children only part time. However, we are persuaded that the father has failed to prove his entitlement to a contribution for support from the mother, and certainly vice versa. We believe the several factors which must and have been considered cancel out any support entitlement from one parent to the other, and each parent shall be responsible for their separate, albeit disparate, parental financial duties.

On appeal, the Superior Court affirmed. Melzer v. Witsberger, 315 Pa. Super. 626, 463 A.2d 28 (1983). We granted appellant's petition for allowance of appeal in order to set forth uniform guidelines for the calculation of child support.

The fundamental requirements of child support are clear. In the matter of child support we have always expressed as the primary purpose the best interest and welfare of the child . . . . Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability.

Conway v. Dana, 456 Pa. 536, 540, 318 A.2d 324, 326 (1974). See also Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975) ("[E]very parent has a duty to support his or her minor children . . . in accordance with the parents' respective abilities to pay . . . .").

Nevertheless, we have never established an orderly method for the calculation of support awards. Rather, our courts have been guided by numerous general principles created by our appellate courts. While there is no shortage of case law announcing these principles, there is a total lack

[ 505 Pa. Page 469]

    of organization with respect to how these principles interact and how they should be applied in order to arrive at an appropriate award of support.

This lack of organization becomes critical in cases such as this one, in which: 1) since their divorce, both parents have remarried and redivorced;*fn3 2) both parents have adequate incomes to allow for some flexibility in their life styles and methods of child-rearing; 3) both parents have custody of their children for substantial periods of time; and 4) each parent disapproves of certain expenditures by the other parent, either for the benefit of the children or for the benefit of the other parent.*fn4

In cases such as this, there are simply too many relevant factors for a court to weigh without the introduction of some system to guide the court in applying the law to the facts of each case. We have concluded that in order to clarify the application of the case law in this area, it is necessary to set forth a guideline -- a kind of checklist -- to assist hearing courts in child support cases. The purpose of such a guideline is not to divest a hearing court of its authority or discretion to consider all the relevant facts and

[ 505 Pa. Page 470]

    circumstances in each case, since the resolution of each case must still be based upon those facts and circumstances; rather, its purpose is simply to provide the hearing court with a method for organizing and considering those facts and circumstances in an orderly fashion. We therefore direct that in the future, child support awards should be calculated based upon the following guidelines.

In order to define the support obligation of each parent, a court must first determine the needs of the children:*fn5 a court has no way of arriving at a reasonable order of support unless it knows how much money is actually required to care for the children involved. Thus, the Superior Court has held that "for purposes of determining whether the rule of Conway v. Dana was satisfied it is necessary to know the expenses entailed in child support." Downie v. Downie, 314 Pa. Super. 548, 551, 461 A.2d 293, 294 (1983). See also Commonwealth ex rel. Lyle v. Lyle, 248 Pa. Super. 458, 462, 375 A.2d 187, 189 (1977).

We agree with the Superior Court, with the proviso that parents are legally obligated to provide only for the reasonable expenses of raising their children. See Tubb v. Middlebrooks, 379 So.2d 1272, 1274 (Ala.Civ.App.1979) (emphasis added) ("It is the rule that the amount of support a parent may be required to pay is to be determined by the reasonable needs of the children and the reasonable ability of the parent to pay.").

This is not to say that children are entitled only to the bare necessities; parents do have an obligation to share with their children the benefit of their financial achievement. See Conway, supra 456 Pa. at 538, 318 A.2d at 325 ("station in life of the parties" is relevant in determining parents' capacity to support their children). Thus, where the parents' incomes permit, it may be perfectly proper for a court to recognize that certain expenditures for recreation,

[ 505 Pa. Page 471]

    entertainment, and other nonessential items are reasonable and in the best interest of the children. See Spingola v. Spingola, 91 N.M. 737, 580 P.2d 958, 964 (1978) ("Where the income, surrounding financial circumstances and station in life of the father demonstrates an ability on his part to furnish additional advantages to his children above their actual needs, the trial court should provide such advantages within reason.").

Nevertheless, neither parent should be obligated to pay for "extras" -- those items which go beyond what is reasonably necessary for the children's welfare -- in which that parent does not concur. Neither parent should be permitted to increase the parties' support obligations by unilaterally indulging the children in things which are not reasonably necessary for their well-being.

We hold, therefore, that in each case the hearing court must first calculate the reasonable expense of raising the children involved, based upon the particular circumstances -- the needs, the custom, and the financial status -- of the parties. See Bethea v. Bethea, 43 N.C.App. 372, 258 S.E.2d 796, 799 (1979) ("What constitutes necessities depends upon the facts and circumstances of the particular case. They include food, clothing, lodging, medical care and proper education. They are not limited to those things which are absolutely necessary to sustain life, but extend to articles that are reasonably necessary for the proper and suitable maintenance of the child in view of his social station in life, the customs of the social circle in which he lives or is likely to live and the fortune possessed by him and his parents.").

The court must next determine, as a matter of fact, the respective abilities of the parents to support their children. This Court has held that "[e]ach parent's ability to pay is dependent upon his or her property, income and earning capacity . . . ." Costello, supra 462 Pa. at 40, 337 A.2d at 868. In arriving at the amount which a parent can contribute to the support of his or her children, the court

[ 505 Pa. Page 472]

    must "make due allowance for the reasonable living expenses of the parent." Id. (emphasis added). Thus, a parent may not voluntarily decrease his or her ability to provide child support by making unreasonable or unnecessarily large expenditures for his or her own benefit. Cf. Weiser v. Weiser, 238 Pa. Super. 488, 491, 362 A.2d 287, 288 (1976) ("It is undisputed that a father or husband cannot intentionally reduce his actual earnings and then use the reduction in earnings to obtain a reduction in the amount of support he must provide for his family."). See also Henderson v. Lekvold, 95 N.M. 288, 621 P.2d 505, 509 (1980) (Duty of support is not decreased "when a parent voluntarily assumes an excessive financial burden only for . . . his convenience and investment."); County of Stanislaus v. Ross, 41 N.C.App. 518, 255 S.E.2d 229, 232 (1979) ("[Father] may not avoid his duty to support his minor children simply by spending all of the money he earns.").

Once the court has determined the reasonable needs of the children and the amount of each parent's income which remains after the deduction of the parent's reasonable living expenses, it must calculate each parent's total support obligation in accordance with the following formula:*fn6

[ 505 Pa. Page 473]

Mother's total support obligation = Mother's income available for support / (Mother's income available for support Father's income available for support) X Child(ren)'s needs

Father's total support obligation = Father's income available for support / (Mother's income available for support Father's income available for support) X Child(ren)'s needs

Once each parent's total support obligation has been defined, the court must determine what portion of that obligation may be offset by support provided directly to the children, and what portion of the support obligation must be satisfied by way of support payments to the other parent. It is clear that at least some portion of both parents' total support obligations may be fulfilled by the provision of support directly to the children. As the Supreme Court of Oregon has noted,

     child support itself may take forms other than direct monetary contribution [to the custodial parent]. It may take the form of payments for medical care . . ., life insurance in the child's name on a parent's life . . ., a trust for the child's education . . ., or hospital, medical or dental insurance. All such forms of indirect support must be included in determining the just and proper contribution of a parent toward the support and welfare of the child.

Smith v. Smith, 290 Or. 675, 626 P.2d 342, 344 (1981).

As with the other elements of child support, a parent may receive credit against his or her support obligation only for those expenditures which actually satisfy the obligation of reasonable and necessary support; a parent should receive no credit for making voluntary payments for those "extras" which do not constitute support in the first

[ 505 Pa. Page 474]

    place.*fn7 See Prescott v. Prescott, 284 Pa. Super. 430, 434-435, 426 A.2d 123, 125 (1981) ("[The father] should not have been given credit for these expenditures for nonessential items . . . . The fact that [the father] chose to purchase luxury items for his sons does not change the fact that he had a court-ordered obligation to contribute to their basic support and welfare first, which he failed to do."); Shapera v. Levitt, 260 Pa. Super. 447, 453, 394 A.2d 1011, 1014 (1978) ("Gifts to the son . . . are, of course, welcomed by the son and may contribute to his happiness and well-being; but they cannot be made a substitute for a fair contribution to the custodial parent for basic support.").

Finally, any amount of his or her total support obligation for which a parent does not receive credit must be paid to the other parent as child support for the benefit of the children, in accordance with the following formula:

Support to be paid to father = Mother's total support obligation - Support provided by mother directly to children

[ 505 Pa. Page 475]

Support to be paid to mother = Father's total support obligation - Support provided by father directly to children

We turn now to the arguments of the parties. Appellant argues that the Superior Court erred in affirming the order of the hearing court because that court abused its discretion in refusing to grant him an award of support.*fn8 Specifically, appellant argues that the court of common pleas abused its discretion because it failed to consider evidence of the actual cost of raising the children; and because it offset appellee's recreational, gift and visitation expenses against her obligation of support.*fn9

[ 505 Pa. Page 476]

It is clear that the court of common pleas erred when it failed to make any findings concerning the needs of the children in this case. However, with respect to the lower court's offset of appellee's expenditures for recreation, gifts and visitation with her children against her obligation of support, we cannot properly review the lower court's actions because that court failed to make the factual determinations necessary for a resolution of this issue. We note simply that to the extent any of these expenses are unreasonable or unnecessary for the well-being of the children, they may not be used to offset either parent's support obligation.

In addition, appellee contends that the lower court erred in its calculation of appellant's ability to provide child support because it failed to consider the income of appellant's second wife, and because it failed to consider the propriety of appellant's monthly contributions to his pension plan.*fn10

The Superior Court has held, correctly, that although there is nothing in our law which requires the new spouse to support minor children of the first marriage, . . . if the second wife was gainfully employed and if her earnings or a portion thereof was contributed to the family budget, such facts would be relevant in determining the father's ability to pay for his minor children.

Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa. Super. 435, 440, 326 A.2d 883, 885 (1974). Accordingly, any portion of appellant's wife's income which was used to defray family expenses would be relevant to a determination

[ 505 Pa. Page 477]

    of appellant's ability to contribute to the support of his children.

With respect to appellant's pension plan, however, we do not feel that appellant should be permitted to reduce his ability to provide support for his children by making voluntary contributions to the plan.*fn11 Although appellant's interest in providing for his retirement is legitimate and understandable, his primary legal obligation is to his children and he may not diminish his ability to provide for them in order to ensure a more comfortable retirement for himself. This is not to say that appellant may not make voluntary contributions to his pension plan; however, such contributions are not reasonable living expenses and they may not be used to decrease appellant's total support obligation.

Accordingly, the order of the Superior Court is reversed and the case is remanded to the court of common pleas for a recalculation of the parties' support obligations consistent with the guidelines set forth in this opinion.

FLAHERTY, Justice, concurring.

I join the majority opinion, but, sharing the concerns expressed in the concurring opinion authored by Mr. Justice Hutchinson, I join with the understanding that indeed the mathematical formulae therein set forth provides, ". . . a framework for decision in these difficult support cases.", and that this constitutes nothing more than a guideline,

[ 505 Pa. Page 478]

". . . relevant in this and most such cases." Certainly, ". . . the individualized judgment of an experienced trial judge . . ." is essential and irreplaceable. So understanding the majority opinion, I join it.

HUTCHINSON, Justice, concurring.

I agree with the majority that this case should be remanded but only because that court failed to account for the needs of the child in setting its support order.

I also believe that guidelines and mathematical formulae can help a court by providing a framework for decision in these difficult support cases. Moreover, I believe that all the factors set forth in the majority opinion are relevant in this and most such cases. As such, I commend them to our trial courts for consideration. However, I believe the majority opinion unduly emphasizes their use in a mechanistic way which cannot replace the individualized judgment of an experienced trial judge. I would therefore treat this case as one involving review of a matter in the trial judge's discretion and remand it to him because I believe he failed to take into account an essential factor in exercising that discretion, the needs of the child.

NIX, Chief Justice, dissenting.

I must express my strong disagreement with the majority's unwise and unwarranted attempt to transform the highly sensitive process of determining the equitable allocation of responsibility for child support into a rigid and sterile mathematical exercise. Moreover, the soundness of the proposed mechanistic formula has yet to be satisfactorily demonstrated.*fn1 The formula approach urged by appellant

[ 505 Pa. Page 479]

    and embraced by the majority is primarily influenced by the views of a single practitioner in the field.*fn2

The majority's hastily concocted guidelines are thus being promulgated without the benefit of adequate guidance from those with expertise in this highly complex and controversial area. Nor can this Court realistically lay claim to the expertise which would assure the reliability of its equation. Moreover, a determination as to the wisdom and necessity of adopting such mandatory guidelines would normally rest with the legislature. Even if the Court could properly make that judgment, it should do so through the rulemaking process and only after thorough study and input from bench and bar.*fn3

I can discern no basis for the majority's conclusion that mathematical certainty is an adequate surrogate for judicial sensitivity. It is essential to our system of justice that such determinations be made on an individualized basis, according proper weight to all relevant factors and recognizing the unique characteristics of each family situation. The uniform guidelines imposed upon the process relieve the court of its responsibility to balance the equities in each case, allowing the court to hide behind a mathematical formula and detracting from actual consideration of the parties' situation. Thus I am constrained to conclude that reliance on such a formula is jurisprudentially unsound and constitutes an imprudent exercise of this Court's supervisory power.

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