Foster, K. v. Frye, J.

• Court: Superior Court of Pennsylvania
• Decided: June 18, 2025
• Docket: 996 MDA 2024
• Status: Unpublished

Opinion

J-S07017-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KENNETH M. FOSTER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JENNIFER M. FRYE : No. 996 MDA 2024

Appeal from the Order Entered June 12, 2024 In the Court of Common Pleas of Huntingdon County Civil Division at No(s): CP-31-CV-4012-2024

BEFORE: NICHOLS, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 18, 2025

Kenneth M. Foster (“Father”) appeals from the order denying his

exceptions to an interim child support order. Father argues the court erred in

failing to apply Rule 1910.16-4(d)(2) when calculating his award of child

support. See Pa.R.Civ.P. 1910.16-4(d)(2). We affirm.

Father and Jennifer M. Frye (“Mother”) have three children together:

C.F., G.F., and K.F. Father has full custody of C.F. and G.F., and the parties

share equal custody of K.F.

Father filed a complaint for child support in January 2024. A hearing

officer held a hearing in February 2024 and thereafter submitted a

recommended support order. See Pa.R.Civ.P. 1910.11(d). The hearing officer

found Father’s monthly net income to be $4,312.46, and Mother’s monthly net

income to be $2,699.87, for a combined monthly net income of $7,012.33. J-S07017-25

Father makes 61.5% of the monthly net income, and Mother makes 38.5%.

See Trial Court Opinion, filed 10/23/24, at 4-5.

The hearing officer then applied Rule 1910.16-4(d)(1), which states,

“When calculating a basic child support obligation and each party owes child

support to the other party as a result of the custodial arrangement, the trier-

of-fact shall offset the parties’ respective basic child support obligations and

award the net difference to the obligee as child support.” Pa.R.Civ.P. 1910.16-

4(d)(1). Using the table set forth in Rule 1910.16-3, the hearing officer first

found the basic support obligation for the two children who reside with Father

to be $1,841.00. It found that Mother was obligated to pay Father 38.5% of

this amount, or $708.79.

Then, for the third child, again using the table in Rule 1910.6-3, the

hearing officer determined the basic support obligation for one child to be

$1,244.00. The hearing officer reduced Father’s 61.5% share of this amount

by 20%, to 41.5%, based on his having 50% custody of K.F.,1 and found

Father was obligated to pay Mother $514.52.

The hearing officer offset the amount Mother was obligated to pay

Father for his sole custody of C.F. and G.F. ($708.79) with the amount Father ____________________________________________

1 Rule 1910.16-4(c)(1)(ii) directs the court to reduce the obligor’s percentage

of the support obligation according to Rule 1910.16-4(a)(1)(Part D) when a child spends 40% or more overnights with the obligor. Part D reduces the standard percentage of the obligor’s obligation by the difference between the percentage of overnights with the obligor and 30%. In this case, because Father has 50% custody of K.F., the court found this results in a 20% reduction in Father’s basic child support obligation for K.F. (50% - 30% = 20%).

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was obligated to pay Mother for her 50% custody of K.F. ($514.52), and

calculated Mother’s monthly support obligation to be the remaining $182.09.

The court entered an interim support order on March 26, 2024, based

on the hearing officer’s findings. See Pa.R.Civ.P. 1910.11(f) (providing court

shall enter interim order following conference, without hearing parties). It was

substantially in the form set forth in Rule 1910.27(e). See id. (stating interim

support order shall be “calculated in accordance with the guidelines and

substantially in the form set forth in Rule 1910.27(e)”).

Father filed timely exceptions to the order and demanded a de novo

hearing. See id. (providing parties 20 days after receipt of interim order to

file a written demand for a hearing before the court). The court held a de novo

hearing. See Pa.R.Civ.P. 1910.11(i) (providing for de novo hearing upon

written demand, followed by the entry of a final support order). On June 12,

2024, the court entered an order stating, “AND NOW, June 1[2], 2024, after

[a] hearing de novo and consideration of the arguments of the parties,

[Father’s] appeal is dismissed.” Order, 6/12/24, at 1 (italics added). The

Docket Entry for the order states, “JUDGE SIGNS FINAL ORDER.” See Docket

Entry, 6/12/24.2

____________________________________________

2 The order is dated June 11. However, it was filed on June 12, and states that

Rule 236 notice was provided on that date. See Pa.R.A.P. 108(b) (stating the date of entry of a civil order is “the date on which the clerk makes the notation in the docket that written notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b)”). We have amended the caption to reflect the order was entered on June 12.

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Father appealed. He raises one issue: “Whether the trial court erred by

failing to apply the Varied Partial Physical Custodial Schedule analysis found

in Pa.R.C[iv].P. 1910.16-4(d)(2) when calculating the child support obligation

of [Mother].” Father’s Br. at 4.

We must first address whether the order under appeal is a final order.

See Capuano v. Capuano, 823 A.2d 995, 998 (Pa.Super. 2003) (stating the

appealability of an order is a jurisdictional issue which we may raise sua

sponte). A final order is one that disposes of all claims and all parties. See

Pa.R.A.P. 341(b)(1). However, the Rules of Civil Procedure provide that where

the court has entered a support order following a support hearing in front of

a hearing officer, and a party demands a hearing de novo before the trial

court, “The court shall hear the case and enter a final order substantially in

the form set forth in Rule 1910.27(e).” Pa.R.Civ.P. 1910.11(i); see also

Pa.R.Civ.P. 1910.27(e) (showing form for final support order).

Here, the June 12 order is not in the required form. In its Rule 1925(a)

opinion, the trial court explains that its practice following a de novo hearing

on child support has been for the court to first enter its own “final order”

adopting, rejecting, or modifying the interim order, and then for the Domestic

Relations Section to enter a second “final support order” through the

Pennsylvania Automated Child Support Enforcement System (PACSES) in the

form set forth in Rule 1910.27(e), based on the court’s “final order.” Trial Ct.

Op. at 2. The court states that, because a “final order” entered in this manner

does not comply with the form set forth in Rule 1910.27(e), the court has

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since “modified its de novo hearing procedure to address the identified

defects.” Id.3 The court also states that no “final support order” had been

entered in the instant case using PACSES system, prior to Father’s appeal to

this Court, due to “a breakdown in the judicial process.” Id. at 3. The court

states that it nonetheless specifically intended the June 12 order “to be the

final order determining the child support to be paid by [Mother] to [Father],

pending only memorialization by the Domestic Relations Office using the

appropriate form.” Id. It thus requests we review Father’s appeal on the

merits. Id. at 1.

We find the court’s failure to adhere to Rule 1910.11 in this case, by

failing to enter its final order in the form prescribed by Rule 1910.27(e), does

not affect the finality or appealability of the June 12 order. The Rules

contemplate that the order entered by the court following the hearing de novo

is a final order. See Pa.R.Civ.P. 1910.11(i);4 see also Pa.R.Civ.P. 1930.2(a)

(prohibiting motions for post-trial relief in domestic relations matters). The

Rules do not anticipate the entry of any additional order, such as the entry of

judgment, or a divorce decree, during the normal course of child support

proceedings to finalize those proceedings. See, e.g., Syno v. Syno, 567 A.2d

717, 718 (Pa.Super. 1989) (finding order dismissing exceptions to master’s ____________________________________________

3 The court also notes its misstatement in the June 12 order in referring to the

hearing de novo as an “appeal.” Trial Ct. Op. at 2. The court explains that it conducted a de novo proceeding in accordance with the Rules. Id. at 2, 3.

4 In the alternative, if no party files a timely demand for a hearing “the interim

order shall constitute a final order.” Pa.R.Civ.P. 1910.11(h).

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report regarding equitable distribution not a final order, where no divorce

decree had been entered). Nor does the June 12 order state an additional

“final” order would be entered by the Domestic Relations Section or refer to

any additional proceedings. Cf. Deasy v. Deasy, 730 A.2d 500, 503

(Pa.Super. 1999) (finding child support order was not final where it remanded

case for hearing before hearing officer). Rather, the docket entry describes

the June 12 order as a “final order.”

By denying Father relief after his hearing de novo, the June 12 order

ended the proceedings by disposing of all remaining claims and parties and is

thus appealable as a final order. See Pa.R.A.P. 341(b). While we do not

sanction the trial court’s entry of duplicative “final” orders following de novo

hearings in child support cases, or orders that do not conform to the form

prescribed by the Rules, we will not elevate the form of the June 12 order over

its substance. See Krakovsky v. Krakovsky, 583 A.2d 485, 487 n.1

(Pa.Super. 1990) (allowing appeal from trial court’s denial of exceptions from

decree nisi despite its deviation from Rules of Civil Procedure governing

domestic relations cases, where the substance of the proceedings was the

same; stating denying the appeal would “elevate form over substance”).

We therefore turn to the merits of Father’s issue. Father argues that the

court erred in failing to apply Rule 1910.16-4(d)(2), “Varied Partial or Shared

Physical Custodial Schedule,” when calculating the child support owed by

Mother, because each child spends different amounts of time with the parties.

Father argues that under subsection (d)(2)(ii)(A), Mother’s average custodial

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time divided amongst all three children is 16.66%. He argues that because

16.66% is below 40%, subsection (d)(2)(ii)(B) provides Mother is not entitled

to a reduction in her support obligation. Father argues the court should

therefore have found the basic support obligation for three children was

$2,161, and that Mother was obligated to pay Father 38.5% of this amount,

based on her percentage of the parties’ combined monthly incomes.

We are guided by the following standard of review.

In reviewing orders granting, denying or modifying support, this Court is limited to considering whether, based on clear and convincing evidence, the trial court abused its discretion. An abuse of discretion requires proof of more than a mere error in judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice, or partiality.

Capuano, 823 A.2d at 999 (citation omitted). We will reverse a child support

order only where it “cannot be sustained on any valid ground.” Silver v.

Pinskey, 981 A.2d 284, 291 (Pa.Super. 2009) (en banc) (citation omitted).

Rule 1910.16-4 governs the calculation of child support. Subsection

(a)(1) provides formulas for the basic calculation. See Pa.R.Civ.P. 1910.16-

4(a)(1). Subsection (c) addresses when the obligor exercises substantial or

equally shared custody of a child for whom support is owed. See Pa.R.Civ.P.

1910.16-4(c).

Subsections (d)(1) and (d)(2) of the Rule provide as follows.

(d) Divided or Split Physical Custody. When Each Party Owes Child Support to the Other Party. Varied Partial or Shared Custodial Schedules.

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(1) Divided or Split Physical Custody. When Each Party Owes Child Support to the Other Party. When calculating a basic child support obligation and each party owes child support to the other party as a result of the custodial arrangement, the trier-of-fact shall offset the parties’ respective basic child support obligations and award the net difference to the obligee as child support.

...

(2) Varied Partial or Shared Physical Custodial Schedule.

(i) The trier-of-fact may reduce a party’s basic child support obligation when the parties have more than one child and each child spends either different amounts of:

(A) partial or equally shared custodial time with the higher monthly net income party; or

(B) partial custodial time with the lower monthly net income party.

(ii) In determining whether a party is entitled to a reduction as provided in subdivision (d)(2)(i):

(A) the trier-of-fact shall:

(I) add the percentage of annual overnights each child spends with that party; and

(II) divide by the number of children to determine the party’s average percentage of custodial time.

(B) If the average percentage of custodial time is 40% or more:

(I) subdivision (c) applies; and

(II) the trier-of-fact shall reduce the party’s basic child support obligation accordingly.

Pa.R.Civ.P. 1910.16-4(d)(1), (2) (examples omitted). The official note to

subsection (d)(2) states,

In cases with more than one child and varied partial or shared custodial schedules, it is not appropriate to perform a separate

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calculation for each child and offset support amounts as that method does not consider the incremental increases in support for more than one child built into the schedule of basic child support.

Pa.R.Civ.P. 1910.16-4(d)(2), Note.5

We agree with the court that subsection (d)(2) does not apply here.

Subsection (d)(2) applies “when the parties have more than one child and

each child spends either different amounts of (A) partial or equally shared

custodial time with the higher monthly net income party[,] or (B) partial

custodial time with the lower monthly net income party.” Pa.R.Civ.P. 1910.16-

4(d)(2)(i) (emphasis added). Thus, subsection (d)(2) only affects the

calculation when the parties share partial or equal custody of multiple children.

In that situation, the obligor’s basic support obligation for those children is

determined using the number of children for whom custody is split, and then

reduced if the obligor’s combined custodial time across those children is 40%

or more. See Pa.R.Civ.P. 1910.16-4(d)(2)(ii)(A), (B). If so, the Rule refers to

the calculation for substantial physical custody set forth in subsection (c), used

when a given child spends 40% or more overnights with the obligor. See

Pa.R.Civ.P. 1910.16-4(d)(2)(ii)(B).

Here, only one of the three children shares custodial time with both

Mother and Father. Therefore, subsection (d)(2) does not apply.

We are further guided by the official examples. Following subsection

(d)(1), which instructs the court to offset the parties’ obligations to each other,

when they both owe support, are two examples. Example 1 describes an ____________________________________________

5 None of the other subsections are relevant here.

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arrangement where one child resides with the mother and two children reside

with the father. Example 2 describes an arrangement where one child resides

with the mother and the parties share equal custody of the second child. In

neither example do both parties share custody of multiple children. Both

examples have two obligors, and both instruct the court to calculate the

support obligation for the parties separately and then offset the results. Thus,

in Example 1, the court is instructed to calculate the mother’s support

obligation for the two children residing with the father; separately calculate

the father’s support obligation for the one child living with the mother; and

then offset these amounts. Similarly, in Example 2, the court is instructed to

calculate the father’s obligation for the one child living with the mother;

separately calculate the mother’s obligation to the father for the child over

whom they share equal custody (as mother is the higher income earner, and

therefore the obligor for purposes of that child), including the equal-custody

reduction pursuant to subsection (c); and offset the amounts.6 ____________________________________________

6 The examples to subsection (d)(1) are as follows.

Example 1. If the parties have three children, one child resides with Mother and two children reside with Father, and the parties’ monthly net incomes are $4,000 and $2,000 respectively, Mother’s basic child support obligation is calculated using the schedule in Pa.R.C[iv].P. No. 1910.16-3 for two children at the parties’ combined monthly net income of $6,000. The basic child support obligation is $1,628. As Mother’s income is 67% of the parties’ combined monthly net income, Mother’s basic child support obligation for the two children living with Father is $1,091. Father’s basic child support obligation is calculated using the (Footnote Continued Next Page)

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In the instant case, in accordance with these examples, the court

calculated Mother’s obligation to Father for the two children who reside with

him; separately calculated Father’s obligation to Mother for the one child of

whom they share equal custody (because Father is the higher income earner,

and therefore the obligor for purposes of K.F.), including the equal-custody

schedule in Pa.R.C[iv].P. No. 1910.16-3 for one child at the parties’ combined monthly net income of $6,000. The basic child support obligation is $1,097. Father’s basic child support obligation for the child living with Mother is $362. Subtracting $362 from $1,091 produces a basic child support obligation of $729 payable to Father as child support.

Example 2. If the parties have two children, one child resides with Mother and the parties equally share custody (50%--50%) of the other child, and the parties’ monthly net incomes are as set forth in Example 1. The basic child support obligation is calculated using the schedule in Pa.R.C[iv].P. No. 1910.16-3 for the one child primarily residing with Mother at the parties’ combined monthly net income of $6,000, the basic child support obligation is $1,097. Father’s income is 33% of the parties’ combined monthly net income, and the basic child support obligation for the child living with Mother is $362. For Mother’s obligation for the child with the equally shared custody arrangement, using the schedule in Pa.R.C[iv].P. No. 1910.16-3 for one child at the parties’ combined monthly net income of $6,000, the basic child support obligation is $1,097. Mother’s proportionate share of the combined monthly net incomes is 67%, but it is reduced to 47% after applying the shared parenting time adjustment for 50% custody under subdivision (c). Mother’s basic child support obligation for the shared custody child is $516 ($1,097 x 47%). As Mother’s obligation is greater than Father’s obligation, Father is the obligee and receives the net of the two obligations by subtracting $362 from $516, or $154.

Pa.R.Civ.P. 1910.16-4(d)(1), Example 1, Example 2.

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reduction pursuant to subsection (c); and then offset these amounts to

determine Mother’s remaining obligation. This was proper.

The three examples following subsection (d)(2) are further instructive.

In each of these examples, unlike in the instant case, the parties share custody

of multiple children. In the first two examples, unlike in the instant case, there

is only one obligor. The court is instructed to base the support obligation on

the total number of children, and subsection (d)(2) acts to reduce the obligor’s

obligation when that parent exercises at least 40% custody across the children

of whom custody is shared.7 These examples do not apply here.

7 The first two examples to subsection (d)(2) are as follows.

Example 1. The parties have two children and one child spends 50% of the annual overnights with Mother, who has the higher monthly net income, and the other child spends 20% of the annual overnights with Mother. Add those percentages together and divide by the number of children (50% plus 20% = 70% divided by 2 children = 35% average time with Mother). Pursuant to subdivision (d)(2)(ii)(B), Mother is not entitled to a reduction in the support order for substantial parenting time.

Example 2. The parties have three children. Two children spend 50% of the annual overnights with Mother, who has the higher monthly net income, and the third child spends 30% of the annual overnights with Mother. Add the percentages of custodial time for all three children together and divide by the number of children (50% plus 50% plus 30% = 130% divided by three children = 43.33% average percentage of time with Mother). Pursuant to subdivision (d)(2)(ii)(B), Mother is entitled to a reduction in the support order for substantial parenting time.

Pa.R.Civ.P. 1910.16-4(d)(2), Example 1, Example 2.

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In the third example, the parties have three children. Each party

exercises primary, but shared, custody over one child, and the parties share

equal custody of the third child. However, this example does not instruct the

court to calculate support using the basic obligation for three children, as

Father requests. Like the instant case, the example considers that there is

more than one obligor. The example therefore instructs the court to first

calculate the support obligation for one child, owed by the lower-income

earner, just as it would have done under (d)(1). Then, the example instructs

the court to calculate the support obligation for the other two children, owed

by the higher-income earner and, pursuant to (d)(2), reduce that party’s

obligation according to the average custodial time that party spends with

those two children for whom custody is shared. The court must then offset the

amounts, just as in (d)(1).8 ____________________________________________

8 Example 3 to subsection (d)(2) states,

Example 3. The parties have three children, Mother has primary custody (60%--40%) of one child, Father has primary custody (60%--40%) of one child, and the parties share custody (50%-- 50%) of the third child. The parties’ monthly net incomes are $2,500 (Mother) and $2,000 (Father). As a result of the custodial arrangement, Father owes support for the child in the primary custody of Mother and Mother owes support for the child in the primary custody of Father and for the child shared equally between the parties. Father’s basic child support obligation is calculated using the schedule in Pa.R.C.P. No. 1910.16-3 for one child at the parties’ combined monthly net income of $4,500. The basic child support obligation is $941. Father’s proportionate share of the combined monthly net incomes is 44%, but is reduced to 34% after applying the shared parenting time adjustment for (Footnote Continued Next Page)

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This example makes clear that subsection (d)(2) only applies to reduce

the obligation for a parent who owes support for multiple children, but

exercises at least 40% custody of those children. It allows the court to

calculate the obligation of that parent using the basic support obligation for

multiple children, and still reduce that parent’s obligation using his or her

average custodial time (such as would have been done for a single child under

subsection (c)), rather than having the court calculate multiple obligations

using the basic child support applicable for a single child. The latter practice

would ignore the incremental increase in support for multiple children that is

built into the basic support obligation. See Pa.R.Civ.P. 1910.16-4(d)(2), Note.

Here, the parties only share custody of one child, K.F. And, because the

parties share equal custody of K.F. and because Father is the higher income

earner, it is Father, and not Mother, who is the obligor for purposes of K.F. ____________________________________________

40% custody under subdivision (c). Father’s basic child support obligation for this child is $320 ($941 x 34%). Mother’s basic child support obligation is calculated using the schedule in Pa.R.C.P. No. 1910.16-3 for two children at the parties’ combined monthly net income of $4,500. The basic child support obligation is $1,414. Mother has varying partial or shared custody of the two children (40% and 50%). Under subdivision (d)(2), the custodial time is averaged or in this case 45%. Mother’s proportionate share of the combined monthly net incomes is 56%, but it is reduced to 41% after applying the shared parenting time adjustment for 45% custody under subdivision (c). Mother’s basic child support obligation for these children is $580 ($1,414 x 41%). Offsetting the support obligations consistent with subdivision (d)(1), Mother’s obligation is greater than Father’s obligation, and Father is the obligee receiving the net of the two obligations by subtracting $320 from $580, or $260.

Pa.R.Civ.P. 1910.16-4(d)(2), Example 3.

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Because Father exercises over 40% custody of K.F., his obligation is reduced

pursuant to subsection (c), even without the application of subsection (d)(2).

Subsection (d)(2) does not apply to reduce Mother’s obligation for the other

two children, because she does not exercise any custody of those children.

The court did not misapply the law or abuse its discretion.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/18/2025

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