M.M.F. v. M.F. ( 2022 )

J-A29002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.M.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.F. :
:
Appellant : No. 462 WDA 2021
Appeal from the Order Entered March 16, 2021
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD-17-009381
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022
I respectfully dissent. I disagree with the distinguished majority’s
conclusion that Father must reimburse Mother for fictional child care expenses
that she did not incur. For the reasons that follow, I would conclude that the
trial court abused its discretion in denying Father’s exceptions to this aspect
of the hearing officer’s recommendation, reverse the child support order
adopting those recommendations, and remand for a recalculation of child
support in light of striking the child care expenses.
The relevant statutory language provides that a trier-of-fact shall
allocate childcare expenses paid by the parties as follows:
(a) Child care expenses.
(1) The trier-of-fact:
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* Retired Senior Judge assigned to the Superior Court.
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(i) shall allocate reasonable child care expenses
paid by the parties, if necessary to maintain
employment or appropriate education in pursuit
of income.
(ii) may allocate reasonable child care expenses
paid by the parties when the trier-of-fact
imputes an earning capacity to a party as
provided in Pa.R.C.P. No. 1910.16-
2(d)(4)(i)(D).
Pa.R.C.P. 1910.16-6(a).
According to the learned majority, this statutory language makes it
mandatory for the trier-of-fact “to allocate the costs of child care between the
parents in proportion to each parent’s income.” Majority Memorandum at 6.
Instantly, the hearing officer accepted as credible Mother’s testimony about
the cost of child care for Child’s remote schooling while Mother would be at
work and ignored Mother’s voluntary sabbatical leave from work, assigning
Mother her full-time earning capacity. Based on these determinations, the
majority agrees with the trial court that the hearing officer did not err in
allocating child care expenses that would have been necessary for Mother to
maintain full-time employment, despite her actually taking a voluntary
sabbatical leave to avoid incurring those child care expenses.1 Id. at 5-6.
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1 I am cognizant of the equitable dilemma regarding the imposition of a full-
time earning capacity on Mother while depriving her of reimbursement for
child care expenses that she would have incurred while working full-time
during the COVID-19 pandemic. However, as discussed infra, the law only
permits an obligation for child care when commensurate with current
expenses, and Mother did not incur those expenses because she took an
unpaid leave. Mother has not filed a cross-appeal challenging the imposition
of an earning capacity, and therefore this Court may not address it sua sponte.
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Regardless of the hearing officer’s decision to assign Mother a full-time
earning capacity while she was voluntarily on sabbatical leave and earning no
income, I do not believe that the relevant statutory language or our case law
support the allocation of fictional child care expenses. In Portugal v.
Portugal, 798 A.2d 246, 256 (Pa.Super. 2002), this Court considered various
claims concerning a support order. We began with our standard of review:
The amount of a support order is largely within the discretion of
the trial court, whose judgment should not be disturbed on appeal
absent a clear abuse of discretion. An abuse of discretion is not
merely an error of judgment, but rather a misapplication of the
law or an unreasonable exercise of judgment. A finding that the
trial court abused its discretion must rest upon a showing by clear
and convincing evidence, and the trial court will be upheld on any
valid ground.
Id. at 249 (citation omitted).
Among other issues, we considered the husband’s claim that the trial
court abused its discretion in not permitting him to make payments directly
to the children’s child care provider as he alleged his wife did not provide the
court with an accurate statement of the cost. We observed that the trial court
calculated future child care expenses for 2001 by annualizing the expenses
incurred in the first five months of 2001. The husband argued that this
calculation did not accurately reflect the future child care expenses that would
be incurred in the latter part of 2001 because the eldest child would become
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Nonetheless, because I would reverse the child support order regarding child
care costs, which was dependent on Mother being assigned an earning
capacity, I would also remand for recalculation of the child support order.
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a full-time student elsewhere in September 2001, and therefore the daycare
expenses would only be for one child from September to December 2001, not
two, which is what the court’s calculation assumed. The wife countered that
any reduction would not be dramatic as the parties would also lose their
discount for enrolling multiple children in daycare. The trial court considered
these arguments and concluded “that it would not reduce the parties’ child
care expenses because Husband submitted no proof of the occurrence or
amount of any such reduction.” Id. at 256 (quotation marks and citation
omitted). We held that the trial court did not abuse its discretion in fashioning
the initial calculation or in ordering the husband to send the payments to the
wife. In doing so, we noted that the husband could “petition the trial court to
modify his child support obligation if he determines that the current child care
expenses are not commensurate with his current obligation.” Id. at 256 n.3.
Applying our holding in Portugal to the instant case, I cannot agree
with the conclusion of the learned majority. Mother has submitted no proof
of the occurrence of any actual daycare expenses. Rather, she testified to
what child care expenses would be if she were to continue working full time.
However, as the record shows, Mother instead took a sabbatical leave to avoid
incurring those child care expenses. Father’s exceptions to the
recommendations of the hearing officer did precisely what we advised the
husband in Portugal to do, i.e., petition the court to modify a support
obligation if the current expenses are not commensurate with the currently
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imposed obligation. Since the hearing officer imposed an obligation for child
care upon Father that was not commensurate with any current expenses, I
find the trial court abused its discretion in dismissing Father’s exceptions in
that regard.
Based on the foregoing, I would reverse the order of the trial court and,
in light of striking the imposition of child care expenses that were not actually
incurred, remand for the trial court to recalculate the child support order.2
Thus, I am compelled to register this dissent.
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2 As I would reverse as to Father’s first issue, I do not reach his second issue.
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