Colonna v. Colonna

855 A.2d 648, 581 Pa. 1, 2004 Pa. LEXIS 1251
CourtSupreme Court of Pennsylvania
DecidedApril 29, 2004
Docket36 WAP 2002
StatusPublished
Cited by26 cases

This text of 855 A.2d 648 (Colonna v. Colonna) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colonna v. Colonna, 855 A.2d 648, 581 Pa. 1, 2004 Pa. LEXIS 1251 (Pa. 2004).

Opinions

OPINION

Justice NEWMAN.

We granted allocatur in this case to consider whether a trial court may order a parent with primary custody to pay child support to a parent with partial custody. Because we believe that a trial court may enter such an order, we reverse the decision of the Superior Court.

Appellant, Mary M. Colonna (Mother), and Appellee Robert J. Colonna (Father), were married in 1983 and separated in 1996. They obtained a final divorce decree from the Court of Common Pleas of Allegheny County (trial court) on March 19, 1999. At the time of separation, Father sought primary legal and physical custody of the parties’ four children, who at the time ranged in age from nine to three years old. Pending the outcome of Father’s custody petition, the parties agreed to a temporary order of shared legal and physical custody, pursuant to which the children lived three and one-half days per week with each parent. They later amended the agreement to provide that the children would alternate between parental homes on a weekly basis.

On November 19, 1997, the trial court ordered Father to pay Mother $6,132.00 per month ($73,584.00 per year) in child support and to provide health insurance for Mother and the [3]*3children. The trial court also ordered Father to pay the interest portion of the mortgage on the marital home; homeowners, personal property and automobile insurance; private school tuition; and other expenses. On June 18, 1998, the trial court reduced Father’s monthly support payment to $5,132.00 per month ($61,584.00 per year) because it determined that Mother’s counsel fees had improperly been included as a reasonable need of the children. It further reduced his obligation to $3,132.00 per month ($37,584.00 per year) on August 18, 1998 based on credits for overpayment of Mother’s counsel fees.

By Order dated May 4, 1998, the trial court awarded primary legal and physical custody to father during the school year, and primary legal and physical custody to Mother during the summer. Mother has partial custody of one or more of the children on Tuesday and Thursday during the school year, and Father has partial custody of one or more of the children on Tuesday and Thursday during the summer. The parties alternate holidays and weekends throughout the year, and each parent has two weeks with the children for summer vacation.

On July 24, 1998, Father sought to terminate child support on the basis that he was now the children’s primary custodian. The trial court permitted him to amend his petition to include additional claims of material and substantial changes in circumstances. A hearing was held before a master in October of 1998, at which time Father introduced his 1997 tax return indicating monthly net income of $16,130.00 ($193,560.00 per year), which was a significant decrease from the monthly net income of $85,942.00 ($1,031,304.00 per year) shown on his 1996 tax return. He presented evidence of living expenses and reasonable needs in the amount of $14,834.23 per month ($178,010.76 per year). The master assessed Mother a net earning capacity of $4,607.00 per month ($55,284.00 per year). Mother presented the same reasonable needs as she did during the 1997 support hearing, namely $28,208.00 per month ($338,496.00 per year) for herself and the children, with $21,106.00 per month ($253,272.00 per year) attributable to the [4]*4children. She maintained that her expenses were the same as they had been when the parties shared custody equally.1 The master concluded that Mother’s earning capacity was unchanged, but that Father’s monthly net income was now $16,130.00 ($193,560.00 per year).

The master determined that Mother had custody 27% of the year, and Father had custody 73% of the year. She was troubled by the disparities in the parties’ income and the fact that Mother has certain fixed expenses incident to her alternating weekend and summer custody. After reviewing the parties’ income, the master noted:

At these income levels, a Melzer[2] calculation is required. Husband testified that he spends $14,834 per month on the children’s reasonable needs. However, there is no way the Master could do a Melzer analysis because Wife presented no evidence of her current needs. In fact, she did not know whether they were more, less or the same as they had been in 1997 when the parties had equally shared custody. That being so, the Master can do no more than calculate the presumptive minimum that each would owe to the other with [Father] at $16,130 per month and Mother at $4,600 per month. Rule 1910.16-5(a)(2)[3] requires that the payor’s income be set at $8,000 and the payee’s income be set at $2,000, but this seems unfair to [Mother] because their actual incomes are more disparate. Further, these children’s expenses in Husband’s house only exceed the $2,380 per month figure which results from a combined income of only $10,000. Using their actual incomes and the 28.3% for four children at $10,000 combined income results in a child [5]*5support obligation of $5,869 per month, of which [Mother’s] share would be $1,291 per month or 22% and [Father’s] would be $4,578 per month or 78%. Were [Mother’s] obligation to [Father] to be for 12 months, she would owe $15,492 per year. However, [Father] has custody 73% of the time. Therefore, [Mother’s] annual obligation would be $11,309.
Were [Father’s] obligation to [Mother] to be for 12 months, he would owe $54,936. However, [Mother] has custody 27% of the year. Therefore, [Father’s] annual obligation would be $14,833. Offsetting one against the other leaves the support obligation of [Father] to [Mother] of $3,524 per year at $294 per month.
The Master recommends that [Father] pay [Mother] child support of $294 per month while continuing to pay all of the children’s expenses as set forth on Exhibit 9.[4]

Master’s Explanation of Order, dated October 20, 1998, at 3-4.

Mother and Father both filed exceptions to the master’s recommendation. By Order dated April 27, 1999, the tidal court sustained Mother’s exceptions in part, and ordered Father to pay $810.00 per month ($9,720.00 per year) for support of the children. “This order award was calculated using the presumptive minimum under the new guidelines multiplied by the percentage of Mother’s custody time.” Trial Court Order dated April 27, 1999. In an Opinion in support of the Order, the trial court stated:

In this proceeding, the hearing officer recommended a child support amount which was offset by [Mother’s] obligation to husband for child support. I agreed with the hearing officer’s decision that it was not appropriate in this case to terminate support based solely on the custodial situation. However, [Father] had not filed for child support against [Mother] and I found that it was inappropriate to offset any child support due [Mother] by any amount that she would owe [Father]. Therefore, I awarded [Mother] support [6]*6based on the guidelines reduced to the percentage of her partial custody time.

Trial Court Opinion, dated June 30, 2002, at 2.

Father appealed to the Superior Court, which reversed in a published Opinion. The Superior Court concluded that for purposes of calculating child support, the custodial parent is the obligee and the non-custodial parent is the obligor.

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Bluebook (online)
855 A.2d 648, 581 Pa. 1, 2004 Pa. LEXIS 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colonna-v-colonna-pa-2004.