THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1910]
Amendment of Rules 1910.3, 1910.5, 1910.11, 1910.12, 1910.17, 1910.19 and 1910.27 of the Rules of Civil Procedure; No. 550 Civil Procedural Rules Doc.
[41 Pa.B. 4847]
[Saturday, September 10, 2011]
Order Per Curiam
And Now, this 26th day of August, 2011, upon the recommendation of the Domestic Relations Procedural Rules Committee; the proposal having been published for public comment in the Pennsylvania Bulletin, 40 Pa.Bull. 7025 (December 11, 2010) and West's Pennsylvania Reporter, 6 A.3d No. 4, Ct.R-17-22 (December 17, 2010):
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1910.3, 1910.5, 1910.11, 1910.12, 1910.17, 1910.19 and 1910.27 of the Pennsylvania Rules of Civil Procedure are amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on November 1, 2011.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1910. ACTIONS FOR SUPPORT Rule 1910.3. Parties. Obligor. Obligee.
(a) An action [shall] may be brought
[(a)] (1) by a person, including a minor parent or a minor spouse, to whom a duty of support is owing, or
[(b)] (2) on behalf of a minor child by a person having custody of the child, without appointment as guardian ad litem, or
[(c)] (3) on behalf of a minor child by a person caring for the child regardless of whether a court order has been issued granting that person custody of the child, or
[(d)] (4) by a public body or private agency having an interest in the case, maintenance or assistance of a person to whom a duty of support is owing, or
[(e)] (5) by a parent, guardian or public or private agency on behalf of an unemancipated child over eighteen years of age to whom a duty of support is owing, or
(6) by any person who may owe a duty of support to a child or spouse.
(b) The trier of fact shall enter an appropriate child support order based upon the evidence presented, without regard to which party initiated the support action or filed a modification petition. The determination of which party will be the obligee and which will be the obligor will be made by the trier of fact based upon the respective incomes of the parties, consistent with the support guidelines and existing law, and the custodial arrangements at the time of the initial or subsequent conference, hearing or trial. If supported by the evidence, the party named as the defendant in the initial pleading may be deemed to be the obligee, even if that party did not file a complaint for support. The provisions of this subdivision do not apply to parties seeking spousal support or alimony pendente lite. Parties seeking spousal support or alimony pendente lite must assert a claim in an appropriate pleading with proper notice served upon the other party.
(1) In general, the party who has primary custody of the children shall be the obligee of a child support order.
(2) When the parties share custody of the children equally, the party with the higher income shall be the obligor as provided in Rule 1910.16-4(c)(2).
Explanatory Comment—1999 New subdivision (c) incorporates 23 Pa.C.S. § 4341(b) to confer standing on any person who is caring for a child to seek support on behalf of that child even though there is no court order granting legal or physical custody to that person. The statutory provision effectively overrules Larson v. Diveglia, 549 Pa. 118, 700 A.2d 931 (1997), which held to the contrary.
Subdivision (e) is amended to eliminate the requirement of consent when the child is over 18 years of age. This requirement was originally intended only for applicable child support actions for higher educational support, which actions were abolished by Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). This rule also is intended to apply to children who are unemancipated by reason of physical or mental disability, consistent with 23 Pa.C.S. § 4321(3) as interpreted by case law.
Explanatory Comment—2011 A new category has been added in subdivision (a) to allow a party who may not have primary custody of the parties' child or who may owe a duty of support to a spouse to initiate a support action in which an appropriate order may be entered. In some cases, the obligor may want to start paying spousal support or alimony pendente lite to the obligee as soon as possible to avoid the accumulation of retroactive arrears, but § 71 of the Internal Revenue Code provides that payments to a spouse or ex-spouse must be pursuant to an order or a divorce or separation instrument to receive alimony tax treatment. Thus, any payments made prior to the entry of a support order will not be deductible by the obligor. This provision is intended to allow an obligor to commence the process by which he or she may pay support earlier.
A new subdivision (b) has been added to clarify that in all initial and subsequent child support actions, the trier of fact may enter a support order against either party, without regard to which party filed the complaint or petition for modification. This facilitates judicial economy, and relieves the parties from incurring additional filing fees, losing time from work or family, losing retroactivity and having to wait for a new proceeding to be scheduled. It enables the trier of fact to base the order on the facts and circumstances at the time of the proceeding, which may be different than at the time of filing.
Rule 1910.5. Complaint. Order of Court.
* * * * * (c) An order shall be attached at the front of the complaint directing the defendant to appear before an officer for a conference at the time and place directed by the court. The order shall be substantially in the form provided by Rule 1910.27(b) and must include notice that a child support order may be entered against either party without regard to which party initiated the action.
* * * * * Rule 1910.11. Office Conference. Subsequent Proceedings. Order.
* * * * * (b) If [the defendant] either party fails to appear at the conference before the officer as directed by the court, the conference may proceed [without the defendant].
* * * * * Rule 1910.12. Office Conference. Hearing. Record. Exceptions. Order.
* * * * * (b)(1) At the conclusion of a conference attended by both parties, if an agreement for support has not been reached, and the conference and hearing are not scheduled on the same day, the court, without hearing the parties, shall enter an interim order calculated in accordance with the guidelines and substantially in the form set forth in Rule 1910.27(e), and the parties shall be given notice of the date, time and place of a hearing. A record hearing shall be conducted by a hearing officer who must be a lawyer.
(2) If [the defendant] either party, having been properly served, fails to attend the conference, the court [shall] may enter an interim order calculated in accordance with the guidelines and substantially in the form set forth in Rule 1910.27(e). Within twenty days after the date of receipt or the date of mailing of the interim order, whichever occurs first, either party may demand a hearing before a hearing officer. If no hearing is requested, the order shall become final.
* * * * * Rule 1910.17. Support Order. Effective Date. Change of Circumstances. Copies of Order. Priority of Distribution of Payments.
(a) An order of support shall be effective from the date of the filing of the complaint or petition for modification unless the order specifies otherwise. In a child support case, if a change in custody occurs after the date of filing, but before a domestic relations conference is held, the trier of fact shall enter a charging order going forward in favor of the primary custodian that shall be effective from the date of the change in custody. The trier of fact also may enter a retroactive arrears order in favor of the party who was the primary custodian at the time of filing. Such an order may address the period from the date of filing to the date of the change in custody. However, a modification of an existing support order may be retroactive to a date preceding the date of filing if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition.
Example: Mother has primary custody of the children and files for child support. Two months later, Father becomes the primary custodian. One month after the change in custody, a support conference is held. Father will be the obligee on a charging order that is retroactive to the date he became the primary custodian. However, an order also may be entered with Mother as the obligee for the two-month period from the date of filing to the date of the change in custody.
Official Note: The order must direct payment to be made payable to or payment to be made to the State Collection and Disbursement Unit for transmission to the obligee. See 23 Pa.C.S. § 4325.
Subdivision (a) was amended in 2005 to include the statutory provision at 23 [Pa.C.S.A.] Pa.C.S § 4352(e) that authorizes the court to enter a modified order that is effective to a date prior to the date on which the petition for modification was filed in certain circumstances. To the effect that the holding in Kelleher v. Bush, 832 A.2d 483 (Pa. Super. Ct. 2003), is inconsistent, it is superseded. See 23 [Pa.C.S.A.] Pa.C.S. § 4352(e) for additional provisions. Every order of support must contain an immediate or conditional order for the attachment of income. See Rule 1910.21.
* * * * * Rule 1910.19. Support. Modification. Termination. Guidelines as Substantial Change in Circumstances.
* * * * * (b) The procedure upon the petition shall be in accordance with Rule 1910.10 et seq. After a party has filed a petition for modification of a child support order, the petition may not be withdrawn unless both parties consent or with leave of court. A petition for modification of spousal support or alimony pendente lite may be withdrawn without the consent of the other party or leave of court.
(c) Pursuant to a petition for modification, the trier of fact may modify or terminate the existing support order in any appropriate manner based upon the evidence presented without regard to which party filed the petition for modification. If the trier of fact finds that there has been a material and substantial change in circumstances, the order may be increased or decreased depending upon the respective incomes of the parties, consistent with the support guidelines and existing law, and each party's custodial time with the child at the time the modification petition is heard.
* * * * * Rule 1910.27. Form of Complaint. Order. Income Statements and Expense Statements. Health Insurance Coverage Information Form. Form of Support Order. Form Petition for Modification.
* * * * * (b) The order to be attached at the front of the complaint set forth in subdivision (a) shall be in substantially the following form:
(Caption)
ORDER OF COURT * * * * * [THE APPROPRIATE COURT OFFICER MAY ENTER AN ORDER AGAINST EITHER PARTY BASED UPON THE EVIDENCE PRESENTED WITHOUT REGARD TO WHICH PARTY INITIATED THE SUPPORT ACTION.] THE TRIER OF FACT SHALL ENTER AN APPROPRIATE CHILD SUPPORT ORDER BASED UPON THE EVIDENCE PRESENTED, WITHOUT REGARD TO WHICH PARTY INITIATED THE SUPPORT ACTION. THE DETERMINATION OF WHICH PARTY WILL BE THE OBLIGEE AND WHICH WILL BE THE OBLIGOR WILL BE MADE BY THE TRIER OF FACT BASED UPON THE RESPECTIVE INCOMES OF THE PARTIES, CONSISTENT WITH THE SUPPORT GUIDELINES AND EXISTING LAW, AND THE CUSTODIAL ARRANGEMENTS AT THE TIME OF THE INITIAL OR SUBSEQUENT CONFERENCE, HEARING, OR TRIAL. IF SUPPORTED BY THE EVIDENCE, THE PARTY NAMED AS THE DEFENDANT IN THE INITIAL PLEADING MAY BE DEEMED TO BE THE OBLIGEE, EVEN IF THAT PARTY DID NOT FILE A COMPLAINT FOR SUPPORT.
* * * * * (g) The order to be attached at the front of the petition for modification set forth in subdivision (f) shall be in substantially the following form:
(Caption)
ORDER OF COURT * * * * * [THE APPROPRIATE COURT OFFICER MAY MODIFY OR TERMINATE THE EXISTING ORDER IN ANY MANNER BASED UPON THE EVIDENCE PRESENTED.] THE TRIER OF FACT MAY INCREASE, DECREASE OR TERMINATE THE EXISTING ORDER BASED UPON THE EVIDENCE PRESENTED. AN ORDER MAY BE ENTERED AGAINST EITHER PARTY WITHOUT REGARD TO WHICH PARTY FILED THE MODIFICATION PETITION.
* * * * *
[Pa.B. Doc. No. 11-1544. Filed for public inspection September 9, 2011, 9:00 a.m.]
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