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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.

Does a Child-Support Obligation Terminate at Death?

Lawyers and laypeople alike know at least the basics regarding child support. Most people know that someone who has his or her child most of the time is entitled to child support from the other parent and someone who has his or her child partially needs to pay child support to the other parent. There are two strains of law regarding child support. The first, as established by the Pennsylvania Legislature, makes it clear that every parent has an essentially absolute duty to support his or her child regardless of whether there is a formal child-support order entered by the court. The second is what most people think of when it comes to the law: One parent formally files for child support in court, a hearing or conference is held and an enforceable court order of support is entered. While this makes sense with living parents, what happens when the parent ordered to pay support, the “obligor,” dies?

It seems pretty clear that child support terminates at the time of the obligor’s death, but what happens when the obligor disinherits his or her minor children, so not only is the child-support obligation terminated, but the obligor’s estate cuts out the child as well? The court has looked into this sort of matter.

Surviving obligees (the parents who receive support) have argued that just because the obligor dies, their own responsibilities do not, and neither do the needs of their children in need of support. Indeed, they have argued that there is, as a result, an inherent injustice and inequity if the support is potentially available in the obligor’s estate but not directed to his or her minor children or, even worse, to some minor children but not others. Pennsylvania courts have expressed sympathy for these arguments raised by obligees; in fact, the court has described these arguments as alluring. Obligees have tried to take advantage of the court’s apparent sympathy for them by presenting other states’ laws that have allowed post-mortem child support.

Unfortunately for obligees, the sympathy of Pennsylvania courts only went so far. The courts have pointed out that while some states allow after-death support, the vast majority have not. In addition, and perhaps most importantly, the courts have thus far been unwilling to extend a child-support obligation from the living to the dead, mainly because they believe doing so encroaches upon the province of the legislature. Indeed, the courts have noted that these arguments have been around for nearly 20 years at this point and the legislature has yet to take action on them. Therefore, the courts have, so far, believed that stretching existing child-support law to the point of obligating the dead moves beyond the province of developing case law and into the realm of altering statutory law as a legislature. The only exception the courts seem to have allowed in this area is when a property settlement agreement or divorce decree specifically allows for child support after death.

For more information on the issues described above, the following cases and statutes may be of interest: Benson v. Patterson, 574 Pa. 346 (2003); Garney v. Estate of Hain, 439 Pa.Super. 42 (1995); Blue v. Blue, 532 Pa. 521 (1992); Gross v. Oeler, 527 Pa. 532 (1991); Sutliff v. Sutliff, 339 Pa.Super. 523 (1985); 23 Pa.C.S. Section 4321.

Originally published in The Legal Intelligencer Blog on October 29, 2013 and can be found here.

Emancipation’s Impact on Child Support

Pennsylvania Rule of Civil Procedure 1910.17(a) establishes that a child support order will be modified as of the date the request for the modification is filed. This rule is consistent with the terms of 23 Pa.C.S.A. §4352 regarding retroactive modification of arrearages. Now, generally speaking, the modification of a child support order is requested because of a change in employment, a fluctuation of income, a change in the custodial arrangement of the children and the like. For the most part, the obligation to pay child support for a child terminates when the child reaches the age of 18, but is this termination automatic and, if not, can arrearages accrue after a child reaches the age of 18 if a petition to modify is not filed?

On its face, it would appear that if an obligor does not file to modify the child support – for the purpose of this article in order to terminate it because of emancipation – the order continues and arrearages can accrue after the age of 18.

Very few cases have been reported on the issues described above, and it would seem the Pennsylvania Superior Court case of Holcomb v. Holcomb, 448 Pa.Super.154 (1995), is the leading case on the matter. In Holcomb, the child-at-issue graduated high school in June 1993, thereby becoming emancipated under the law. The father of the child did not file to modify the support order for the child, in order to terminate the order, until June 1994. The relevant question, for the purpose of this article, is whether the child support order should have continued to accrue between June 1993 and June 1994 despite the fact that the child for whom the support was ordered was emancipated the entire time.

The hearing officer’s reasoning was to give the father a retroactive accounting of his support back to June 1993, as if he filed his petition to modify in June 1993, effectively deciding that emancipation automatically takes effect regardless of filing to modify.

The court ruled that, first, it has no power or authority to require the obligee, the mother in this case, to repay any money received after the child-at-issue emancipates. It logically follows, then, that if it cannot order repayment, its power regarding reducing or eliminating arrearages is similarly absent.

Next, the court specifically ruled that it simply has no statutory or procedural warrant or authority to modify support arrearages before the date the father filed a petition to modify regardless of whether the child-at-issue for whom the support has been ordered is emancipated in the interim. Indeed, the court admonished the father, saying “nothing prevented [him] from filing a petition for modification on the date his daughter became emancipated … [therefore] like all successful petitioners who seek modification of a support order, the modification is granted effective as of the date the petition was filed.”

So, for obligors and practitioners alike, it is vitally important to be vigilant in filing petitions to modify support as soon as a child is emancipated; otherwise, a child support order, along with its arrearages, will potentially continue to accrue unabated until some action is taken to stop it.

Originally published in The Legal Intelligencer Blog on July 2, 2013 and can be viewed here and published (reprinted) in Volume 35 Issue No. 3 (September 2013) of Pennsylvania Family Lawyer.

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