Mascaro v. Mascaro

JOHNSON, J.,

dissenting:

¶ 1 I disagree with the Majority’s conclusion that the formula for determining spousal support mandated by Pa.R.C.P. 1910.16-4(a) Part IV is not applicable in cases where the parties’ net monthly in*1091come exceeds the maximum amount set forth in the guidelines for determining child support. I conclude that the Pennsylvania Rules of Civil Procedure mandate use of the formula to establish a presumptive minimum level of spousal support and also mandate that the trial court consider the factors set forth in Pa.R.C.P.1910.16-5 to determine whether a deviation from the presumptive minimum is warranted. Because the Majority would supplant the procedure mandated by the Pennsylvania Rules of Civil Procedure by an ad hoc needs based analysis, I respectfully dissent.

¶ 2 Pursuant to Pa.R.C.P.1910.16-4, spousal support is calculated according to the following formula:

PART IV. SPOUSAL SUPPORT OR APL With Dependent Children
12. Obligor’s Monthly Net Income (Line 4) _
13. Less Obligee’s Monthly Net
Income (Line 4) (_)
14. Difference
15. Less Obligor’s Total Child Support Obli-
gation (Line 11) (_)
16. Difference
17. Multiply by 30% X .30
18. AMOUNT OF MONTHLY SPOUSAL
SUPPORT OR APL _

Pa.R.C.P.1910.16-4(a) Part IV. Unlike the guidelines for child support, the formula for determining spousal support is not upwardly limited by a maximum amount of combined net monthly income. Furthermore, because the formula is based on a percentage of the obligor’s income, the obligee’s needs are not relevant under Rule 1910.16-4(a) Part IV.

¶ 3 The foregoing formula is to be applied in accordance with Pa.R.C.P.1910.16-1:

(a) Applicability of the Support Guidelines. The support guidelines set forth the amount of support which a spouse or parent should pay on the basis of both parties’ net monthly incomes as defined in Rule 1910.16-2 and the number of persons being supported. The support of a spouse or child is a priority obligation so that a party is expected to meet this obligation by adjusting his or her other expenditures.
(b) The amount of support (child support, spousal support or alimony pen-dente lite) to be awarded pursuant to the procedures under Rules 1910.11 and 1910.12 shall be determined in accordance with the support guidelines which consist of the guidelines expressed as the child support schedule and the chart of proportional expenditures set forth in Rule 1910.16-3, the formula set forth in Rule 1910.16-4 and the operation of the guidelines as set forth in these rules.
(d) If it has been determined that there is an obligation to pay support, there shall be a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of support to be awarded. The support guidelines are a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties. The trier of fact must consider the factors set forth in Rule 1910.16-5. The presumption shall be rebutted if the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate.

Pa.R.C.P.1910.16-1 (emphasis added). The language of these rules is mandatory. Spousal support must be determined according to the formula set forth in Rule 1910.16-4. After a court calculates the presumptive minimum for spousal support, it must then consider Pa.R.C.P.1910.16-5 to determine whether a deviation is warranted. A deviation is permitted if the presumptive minimum is either inappropriate or unjust to either party. See id.

¶4 Rule 1910.16-5 enumerates the factors that a court must consider in deciding whether to deviate from the presumptive minimum amount of spousal support:

Rule 1910.16-5. Support Guidelines. Deviation
*1092(a) If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.
(b) In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children;
(8) in a spousal support or alimony pendente lite case, the period of time during which the parties lived together from the date of marriage to the date of final separation; and
(9) other relevant and appropriate factors, including the best interests of the child or children.

Pa.R.C.P.1910.16-5 (emphasis added).

¶ 5 Despite the unambiguous language of these rules, the Majority concludes that because the guidelines do not expressly state that they are applicable to “high income families” the guidelines should not be applied when the net monthly income exceeds $15,000 per month (the maximum amount set forth in the guidelines for determining child support). Majority Slip Opinion at 1088-89. The Majority states that “[t]o conclude otherwise, would result in awards that were not contemplated by the model which underpins the guideline system and one that is not based on an analysis of the reasonable needs of the dependent spouse.” Id. This statement completely ignores the procedure mandated by Pa.R.C.P.1910.16-l(d) that “the support guidelines are a rebuttable presumption and must be applied taking into consideration the special needs and obligations of the parties,” and that “[t]he trier of fact must consider the factors set forth in Rule 1910.16-5.” Pa.R.C.P. 1910.16 — 1(d) (emphasis added). The guidelines require the trier of fact to consider the specific circumstances of each case to determine whether a deviation from the presumptive minimum is warranted. See id. See also Pa.R.C.P. 1910.16-5(b). The trier of fact must consider, inter alia: (1) the parties’ “standard of living”; (2) their “unusual needs or unusual fixed obligations”; and (3) any other “relevant and appropriate factors.” Id. Thus, the Majority’s concern that the application of the guidelines in cases involving “high income families” may result in awards that are not contemplated by the guidelines is unfounded.

¶ 6 Moreover, I also conclude that the trial court erred in calculating child support and in not including perquisites when calculating the parties’ net monthly income. Prior to the adoption of the guidelines for child support, courts determined child support according to the analysis set forth by our Supreme Court in Melzer. See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The Melzer analysis requires a court to “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.” 480 A.2d at 995. “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....’” Id. at 996 (quoting Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866, 868 (1975)). The final step in the Melzer analysis is to calculate each parent’s total support obligation according to a formula set forth in Melzer, and then subtract from that figure any amount of support provid*1093ed directly to the child that actually satisfies “the obligation of reasonable and necessary support.” Id.

¶ 7 Following the adoption of the guidelines for child support, the courts ceased applying Melzer in situations where they could calculate child support based on the figures set forth in the guidelines. The guidelines enable courts to make a simple determination of child support when the parents’ combined net monthly income falls within the range of the guidelines. However, the guidelines are not equipped to calculate child support when the parents have an extraordinarily high combined net monthly income. Currently, the guidelines cannot be used to calculate child support where the parents’ combined net monthly income exceeds $15,000. See Pa.R.C.P. 1910.16-3. The rules, however, do mandate an alternative procedure when the parents’ combined net monthly income exceeds the maximum range of the guidelines:

(2) High Income Child Support Cases.
When the parties’ combined net income exceeds $15,000 per month, child support shall be calculated pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The presumptive minimum amount of child support shall be obligor’s percentage share of the highest amount of support which can be derived from the schedule or the chart for the appropriate number of children and using the parties’ actual combined income to determine obligor’s percentage share of this amount. The court may award an additional amount of child support based on the remaining combined income and the factors set forth in Melzer.

Pa.R.C.P.1910.16-2(e)(2) (emphasis added).

¶ 8 In the instant case, the court found that Husband and Wife’s combined net monthly income was $52,000. Therefore, because them combined net monthly income exceeds the maximum amount under the guidelines, the trial court was bound to conduct a Melzer analysis to determine the amount of child support. See id. See also Calabrese v. Calabrese, 452 Pa.Super. 497, 682 A.2d 393, 395 (1996). Prior to conducting a Melzer analysis, the court was also bound to calculate a presumptive minimum level of child support based on the highest amount of support that could be derived from the child support guidelines. See id.

¶ 9 In her first question presented to this Court, Wife claims that the trial court erred by not calculating an award of child support based on a presumptive minimum amount established by the guidelines set forth in Pa.R.C.P.1910.16-3. Further, Wife argues that after a court has calculated the presumptive minimum, it must then do a Melzer analysis to determine the needs of the child. Husband claims that the trial court calculated a presumptive minimum child support amount and then applied Melzer. Thus, while both parties agree that the amount of child support should be determined by first establishing a presumptive minimum and then applying Mel-zer, they disagree as to whether the trial court properly applied Melzer. Though Wife also argues that the trial court did not calculate a presumptive minimum of child support, the trial court opinion clearly shows that the court did in fact calculate the presumptive minimum under the guidelines. Trial Court Opinion at 6, 11.

¶ 10 Wife claims that the trial court failed to properly apply a Melzer analysis because it did not calculate the reasonable expenses of raising the child involved and it analyzed the expenses for Wife and Child together without specifying the reasonable expenses of raising Child individually. A proper Melzer analysis necessarily begins with a determination of the needs of the child. See Melzer, 480 A.2d at 995. The trial court’s opinion and order reveal no such determination. Husband claims that the Wife should not now be heard to allege trial court error for its failure to consider the needs of Child individually because Wife failed to present evidence that differentiated her expenses from those of Child. I note that Husband does not direct this Court to any authority to *1094support the proposition that the procedure to be followed in support actions is a function of the evidence that the parties introduce. Moreover, the record belies Husband’s claim that Wife did not present evidence regarding Child’s needs. Evidence was introduced regarding the precise costs of Child’s private school, summer camp, piano lessons, tennis lessons, gymnastics, and art classes. N.T., 9/9/97, at 61, 62, 106. Consequently, I conclude that the trial court’s failure to make an individual determination of Child’s needs was an error of law. See Melzer, 480 A.2d at 995.

¶ 11 In the third question Wife presents to this Court, she argues that perquisites supplied to Husband by Husband’s company should have been added to his income for purposes of calculating child and spousal support. “ ‘All income from whatever source is to be evaluated as well as financial resources and property interests’ for purposes of calculating support.” Heisey v. Heisey, 430 Pa.Super. 16, 683 A.2d 211, 212-13 (1993) (quoting Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353, 355 (1986)). “[PJersonal perquisites, such as entertainment and personal automobile expenses, paid by a party’s business must be included in income.” Heisey, 633 A.2d at 212. Husband argues that the trial court did not err in excluding perquisites supplied by Husband’s company because the company also paid for certain expenses of Wife and Child. Husband does not support his argument with any citation to legal authority, nor am I aware of any authority that states that when both parties receive perquisites, these perquisites somehow negate one another. As stated above, perquisites are to be considered income for purposes of determining child and spousal support. Accordingly, I conclude that the trial court committed an error of law in failing to include the parties’ perquisites when calculating the child and spousal support.

¶ 12 In conclusion, the guidelines established by our Supreme Court mandate a specific procedure that can adequately handle child or spousal support cases where the parties’ net monthly income exceeds $15,000. The trial court’s method for determining support in this ease disregards our Supreme Court’s mandate, and the Majority now places this Court’s imprimatur on the trial court’s method of calculating support. For this reason, I must respectfully dissent.