Dalton v. Dalton

DEL SOLE, Judge,

dissenting.

I respectfully dissent from the majority opinion which affirms the trial court’s dismissal of Appellant’s exceptions to the permanent hearing officer’s findings of fact and recommendations of the permanent hearing officer and adopting those findings and recommendations. I would remand for a determination of whether the children spend an unusual amount of time with Appellant, and whether, therefore, the amount of the support order should be adjusted downward.

Rule 1910.16 — 5(l), Pa.R.C.P., 42 Pa.C.S.A. states:

The support guidelines contemplate that the non-custodial parent has regular contact, including vacation time, with his or her children, and that he or she makes direct expenditures on behalf of the children. Thus, a noncustodial parent’s support obligation should be reduced only if that parent spends an unusual amount of time with the children, (emphasis added)

I would hold that where, as here, the permanent hearing officer’s findings of fact include a finding that Appellant, “does spend significant additional time with the minor children,” (Findings of Fact and Recommendation, p. 3, August 1, 1990), and where Appellant contends that the minor children spend 42.8% of the time with him, it is incumbent on the trial court to determine how much time Appellant spends with the children on a regular basis, and whether that amount of time is “unusual.” The guidelines mandate that if the amount of time is found to be unusual, then the parent’s support obligation should be reduced.

I do however agree with the majority opinion insofar as the additional expenditures with which Appellant concerns himself are non-essentials, such as video games, cameras, *266cable television and toys. These expenditures should not reduce the amount of the award.

However, when the support guidelines contemplate a reduction of support for time spent with the parent over and above the “usual”, it must be determined whether the non-primary custodial parent is contributing to the support of the children by virtue of this extended custody.