Sanders v. Lott

HUDOCK, Judge,

dissenting.

Respectfully, I dissent. I disagree with the majority’s conclusion that the receipt of public aid can never be an “unusual circumstance” which permits deviation from the support guidelines. The majority suggests that, because the definition of income as found in 23 Pa.C.S. § 4302 does not include public aid as one of the items enumerated, to consider the receipt of public aid as an unusual circumstance for purposes of deviating from the support guidelines is to promote a backdoor method of considering as income something that the legislature believed should not be considered. This reasoning, I respectfully suggest, is flawed, as the note to Pa.R.C.P. 1910.16-4(a) clearly states that a deviation from the support guidelines applies to the amount of the support obligation and not to the amount of the income. The court found that no matter what support obligation was reached, the most the child could actually receive was $50/per month due to the family’s receipt of public aid. In considering this factor, the trial court did not attribute an income which was equivalent to the amount of the public aid to the mother. Rather, the court *132merely found that, due to the receipt of public aid, an exact calculation of the child’s needs would be superfluous. Thus, the trial court’s consideration of the" mother’s receipt of public aid as an unusual circumstance does not equate with the consideration of public aid as income, as the majority suggests. The trial court, on the contrary, adopted the amount of net income assigned by the hearing officer to both mother ($0.00) and father ($1,778 monthly), acknowledging the accuracy of such determinations. From these figures, it determined that there existed an obligation on the part of the father to pay support ($82.13 weekly). At this point, a rebuttable presumption arose that the amount of the award determined from the guidelines was the correct amount of child support to be awarded. However, this presumption was rebutted when the court made a written, specific finding on the record that an award in the amount determined from the guidelines would be unjust and inappropriate under the circumstances. See Pa. R.C.P. 1910.16-l(b). As the majority notes, Pa.R.C.P. 1910.-16-4 enunciates the requirements for deviation from a support amount derived from the guidelines. Rule 1910.16-4 provides, in relevant part:

(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; and
(8) other relevant and appropriate factors, including the best interest of the child or children.

Thus, the court has reasonable discretion to deviate from the guidelines if it appears to be necessary. Ball v. Minnick, 414 *133Pa.Super. 242, 260, 606 A.2d 1181, 1191 (1992) (en banc). The trial court justified its deviation from the guidelines as follows:

The Court found that the public assistance aspect of this case constituted unusual circumstances, requiring deviation from the guidelines.
Because Mother was already receiving public assistance, this child had to be included in the family unit for purposes of calculating monthly welfare benefits. 42 U.S.C.A. § 602(a)(38) (West 1991); 45 C.F.R. § 206.-10(a)(l)(vii) (1991). Accord 55 Pa.Code § 171.21(b)(1) (1991). In addition, to be eligible for benefits, Mother had to assign any right to receive child support to DPW and assist in the collection of that support. 42 U.S.C.A. § 602(a)(26)(B) (West 1991). Accord Pa.Stat.Ann., tit. 62, §§ 432.6(e), 432.7 (Purdon Supp.1991); 55 Pa.Code §§ 141.21(c) and (d), 187.21(b), 187.23(a)(2) (1991).
Of the child support that would be collected each month, the first $50.00 would have to be passed through to the family in accordance with federal law. 42 U.S.C.A. §§ 602(a)(8)(A)(vi), 657(b)(1) (West 1991). The remaining support collected would be turned over to DPW as reimbursement, to be applied against the total amount of public assistance provided to the family. See generally Bowen v. Gilliard, 483 U.S. 587, 599-600 & n. 14, 107 S.Ct. 3008, 3016-17 & n. 14 [97 L.Ed.2d 485] (1988) [ (1987) ]. If DPW collected more in child support than it paid out in assistance for the family as a whole, the excess would be distributed to the family, should it ever stop receiving public assistance. 42 U.S.C.A. § 657(b)(4)(B). The result is that a Father’s contributions for his child’s support serve only to reduce the debt owed to the state by Mother and all the fathers of her children:
This Mother was twenty-four years old at the time this child, her sixth, was born. By the time this case was listed before this Court, Mother had borne another child — her seventh child out of wedlock. (N.T. 3/9/92, at 3). These children had several different fathers, at least *134two of which had paid or were currently paying support through the court. Because Mother was on welfare, this support was remitted to DPW as reimbursement for the public assistance the entire family was receiving. According to the federal requirements described above, other than the $50.00 pass-through, the support paid by Father would go to the child only if the family were taken off welfare, and if DPW had been reimbursed for the total assistance paid to the family as a whole. However, this Court found that a woman who had borne seven children by the age of twenty-four would likely never be able to remove herself from public assistance. (N.T. 3/9/92 at 18). Therefore, whatever support the Court ordered Father to pay for the support of the child would be turned over to DPW, and most likely retained by DPW to reduce the expense of the assistance paid for an eight-member (as of the hearing date) family. Under the circumstances, the Court found that entering a support order conforming to the guidelines would ultimately benefit DPW, rather than the child. Deviation was therefore appropriate.

Trial Court Opinion dated October 16, 1992, at pp. 3-6. (Emphasis in original.) Although the method of assignment of support to DPA, and the distribution of public aid as outlined by the trial court, has been held to be constitutional, see Bowen v. Gilliard, 483 U.S. 587, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987), I fail to see how consideration of .receipt of public aid by the mother as an unusual circumstance is inconsistent with or in derogation of federal law. In this instance, the trial court recognized that any monies in excess of $50.00 would not benefit the child and, even if the court found the child’s needs exceeded $50.00 per week, the child would still only receive the $50.00 pass-through per month plus whatever sum is allotted by DPA for assistance of a family of eight persons. The fact that federal law provides that support monies in excess of the $50.00 pass-through per month decrease the custodial parent’s debt to DPA (applied as recoupment for monies expended by DPA on other family members) in the *135event that parent becomes self sufficient does not necessarily prohibit the court from finding the receipt of public aid as an unusual circumstance where it is doubtful that the family will ever be able to independently function without assistance. The unusual circumstance is not that the mother is receiving public aid, per se, but rather that the chances of ever removing herself from the system are slight. In this situation, the child receiving support and/or the family as a whole neither benefit nor suffer from a payment in excess of $50.00. Accordingly, I would find that the trial court, in this instance, did not abuse its discretion in deviating from the support guidelines.

For similar reasons, I also disagree with the majority’s alternative basis for reversal. The majority finds that the trial court’s financial conclusions regarding welfare cash allotment, food stamps, and medical assistance were merely guesses unsupported by the record. The record, however, reveals that the trial court was presented, by the assistant district attorney, a document from DPA, dated January 1,1990, which delineated family allotments in the different counties, including Philadelphia County. The family allotments were calculated on the number of family members in a budget group. Therefore, there was a basis for the estimated cash assessment calculated for the family per month. As to medical benefits, the court determined that it need not include this in the calculation, since the father provided full medical benefits for the child. Accordingly, DPA was not responsible for, nor allotted resources for, medical care. Finally, with regard to food stamps, no evidence was presented to the court by the parties or their attorneys on exactly what mother received per month or per year in food stamps. Although me transcript reveals the court did make inquiry as to the amount, no one present appeared to know the answer. Accordingly, the trial court added to the amount which would be spent on the child in a year, by DPA, a sum of $500.00 for food. Although it is clear that this calculation was speculative, it did not prejudice the child or mother in the actual amount the family would receive, as this was determined by DPA guidelines, plus the $50.00 pass-through per month. The calculation made by the *136court was merely an effort to reimburse DPA for its expenditures on the child. Accordingly, any error in this calculation was harmless error at worst. I would, therefore, affirm the order of the trial court.