A Primary Custodian Support Obligor
It is practically axiomatic among family law practitioners that he who has primary child custody is entitled to receive child support. There can be exceptions to this practice, such as the case decided by the Pennsylvania Supreme Court captioned as Colonna v. Colonna, 581 Pa. 1.
The parties in Colonna were married in 1983 but separated in 1999, having had four children in the interim. Ultimately, the Father secured primary custody of their four children and filed for child support against the Mother. Through the support litigation, it was discovered that Father earns about $193,560/yr and Mother earns about $55,284/yr.
Surprisingly, although it was Father, as primary custodian of the children, who was seeking support, the Support Master ultimately ruled he had to pay support to their Mother. After exceptions were filed by both parties, the trial court agreed that Father had to pay child support to Mother despite being primary custodian. Father appealed and Superior Court reversed the court below, ruling that Mother was to pay Father child support as he is primary custodian. Needless to say, an appeal was made to the Pennsylvania Supreme Court which reestablished father as the obligor despite him being primary custodian.
The Supreme Court was very troubled by the great disparity of incomes between the parents. The Court indicated that when incomes are as different as the parents’ income in Colonna, a deviation from the standard child support guidelines is appropriate, citing the “best interests of the children” as the rationale for requiring the deviation. The deviation from the guidelines extends so far, in a case like this, that someone who would otherwise be an obligor suddenly becomes an obligee. The Court believed that support law should work in conjunction with custody law to pursue the best interests of children as opposed to simply work exclusively and mechanically by the numbers.
The Court believed the best interests of the children is significantly impacted when the income of the parents are significantly different, and that one parent will not be able to provide an environment that is reasonably close to the one the other parent can provide. The Court asserted that, although it does not require a support order to equalize the two parents, it “would be remiss in failing to ignore the reality of what happens when children are required to live vastly different lives depending upon which parent has custody on any given day.” Based on the above, the Court ruled that it is an abuse of discretion to fail to consider vast income differences when deciding whether to deviate from the child support guidelines, and this includes the possibility of ordering a primary custodian to pay support to the partial custodian.
As an aside, the Court made it clear that the deviation described above does not require a Melzer analysis. A Melzer analysis is for high income cases where incomes are too high for the guidelines to calculate. The Court indicated that the issue is not necessarily significantly high income but an unreasonably large differential in the respective income of the parents.
Finally, the primary criticisms of this decision, as mentioned in the dissent, are, first, the Court implies that the love and affection of a child for a parent can be bought and sold and, second, and more importantly, the majority decision makes no effort to define phrases like “appropriate housing” or provide an objective standard to determine just how much of a difference in income warrants a deviation from the support guidelines which would lead to making a primary custodian an obligor.
Originally published on February 25, 2014 in The Legal Intelligencer Blog and can be viewed here and reprinted in the Pennsylvania Family Lawyer, Volume 36, Issue No.: 1, April 2014 edition.