FAMILTY LAW:

STATE: IL

Read the following case study and answer the questions attched.

COLONNA v. COLONNA

581 Pa. 1, 855 A.2d 648 (2004)

Justice NEWMAN.

Appellant Mary M. Colonna (Mother) and Appellee Robert J. Colonna (Father) were married in 1983 and separated in 1996. . . . At the time of separation, the parties agreed to a temporary order of shared legal and

physical custody, pursuant to which the children lived three and one-half days per week with each parent. They later amended the agreement to provide that the children would alternate between parental homes on a weekly basis. . . .

On November 19, 1997, the trial court ordered Father to pay . . . child support and to provide health insurance for Mother and the children. . . .

By Order dated May 4, 1998, the trial court awarded primary legal and physical custody to Father during the school year, and primary legal and physical custody to Mother during the summer. Mother has partial custody of one or more of the children on Tuesday and Thursday during the school year, and Father has partial custody of one or more of the children on Tuesday and Thursday during the summer. The parties alternate holidays and weekends throughout the year, and each parent has two weeks with the children for summer vacation.

On July 24, 1998, Father sought to terminate child support on the basis that he was now the children's primary custodian. . . .

The master determined that Mother had custody 27% of the year, and Father had custody 73% of the year. She was troubled by the disparities in the parties' income and the fact that Mother has certain fixed expenses incident to her alternating weekend and summer custody. . . .

. . . The Superior Court concluded that for purposes of calculating child support, the custodial parent is the obligee and the non-custodial parent is the obligor. Because the children spend 73% of the time with Father and 27% with Mother, the Superior Court determined that Father, as the obligee, does not owe child support to Mother, who is the obligor. The Superior Court relied upon Pa.R.C.P. 1910.16-1, Explanatory Comment B.2., which provides:

Each parent is required to contribute a share of the child's reasonable needs proportional to that parent's share of the combined net incomes. The custodial parent makes these contributions entirely through direct expenditures for food, shelter, clothing, transportation and other reasonable needs. In addition to any direct expenditures on the child's behalf, the non-custodial parent makes contributions through periodic support payments.

Accordingly, the Superior Court held that Mother was not entitled to child support. It concluded:

Where primary physical custody is changed from one parent to the other parent, no valid justification remains for requiring the new custodial parent to continue payments that are intended to be purely for the support, benefit and best interest of the children. Consequently, directing support payments to a non-custodial parent . . . serves no purpose for the children after custody changes and would only confer a personal benefit upon the non-custodial parent if the payments were allowed to continue.

Colonna v. Colonna, 2001 PA Super 368, 788 A.2d 430, 442 (Pa. Super. 2001).

We adamantly disagree with this conclusion. . . . [W]e are troubled by the disparity in the parties' incomes and are concerned that the refusal to consider this as a factor when fashioning a support order may be contrary to the best interests of the children. We must always be mindful of the fact that the support laws work in conjunction with our custody laws. The General Assembly has declared:

It is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and a sharing of the rights and responsibilities of child rearing by both parents. . . .

23 Pa. [Cons. Stat.] 5301.

Where the parent who does not have primary custody has a less significant income than the custodial parent, it is likely that he or she will not be able to provide an environment that resembles the one in which the children are accustomed to living with the custodial parent. While a downward adjustment in lifestyle is a frequent consequence of divorce that affects both adults and children, we 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. To expect that quality of the contact between the non-custodial parent and the children will not be negatively impacted by that parent's comparative penury vis-a-vis the custodial parent is not realistic. Issuing a support order that allows such a situation to exist clearly is not in the best interests of the children.

Therefore, where the incomes of the parents differ significantly, we believe that it is an abuse of discretion for the trial court to fail to consider whether deviating from the support guidelines is appropriate, even in cases where the result would be to order child support for a parent who is not the primary custodial parent. . . .

In a case such as the instant matter, the trial court should inquire whether the non-custodial parent has sufficient assets to provide the children with appropriate housing and amenities during his or her period of partial custody. We specifically note that the term "appropriate" does not mean equal to the environment the children enjoy while in the custodial parent's care, nor does it mean "merely adequate." The determination of appropriateness is left to the discretion of the trial court, upon consideration of all relevant circumstances.

Mr. Chief Justice CAPPY, dissenting.

Because I believe that a custodial parent should not be obligated to pay child support to a non-custodial parent, I must respectfully dissent.

. . . I find the majority's approach disquieting because I believe it transforms a child support action into a quasi-equitable distribution action. In my view, the majority's new rule is not so much addressing whether the needs of the children are being met . . . but rather is focused on augmenting the wealth of the non-custodial parent. While such a focus may be proper in an equitable distribution matter, it has no place in a child support action. A child support action should not be used to jerry-rig a new balance between the respective financial positions of the spouses. . . .

[M]ost importantly, I am not in accord with the majority's foundational premise concerning the relationships between parents and children. The majority appears to be of the belief that if there is a disparity in income, the parent-child relationship will perforce be corrupted by the wealthier parent's desire to "buy the affection of the children. . . ." Majority slip op at 7 n.5. . . . The majority believes we should capitulate to what it perceives to be a social reality, and redistribute the wealth so that the affections of the child will not be alienated due to a parent's inability to provide the child with material advantages comparable to those provided by the wealthier parent.

I am disturbed by this approach. First, I can find no basis in the law for the proposition that a non-custodial spouse must be enabled, via payments from the custodial parent, to provide material advantages and entertain her children in the same lavish fashion as may the custodial parent. This simply has not been the law of this Commonwealth.

Furthermore, I am disturbed by the philosophy underpinning this rule. Unlike the apparent view of the majority, I do not believe that the health of any given parent-child relationship is measured by a parent's ability to provide a surfeit of expensive possessions or experiences for her child. Rather, the parent-child relationship thrives, or withers, based on the availability of intangibles such as love, attention, and affection. While it may be true that we live in a highly materialistic culture, does this fact stand in contradiction to the timeless realities of parenting? Or, to put it colloquially, can money buy love? I think not. And, more importantly, I balk at this court's implication that not only are a child's affections for sale, but also that our judiciary should be in the business of fostering the market for such a "commodity." For the foregoing reasons, I respectfully dissent.

Mr. Justice Castille joins this dissenting opinion.

QUESTIONS

1.What is the parties' custodial arrangement?

2.Why does the court reference the custody statute given that this is a support case?

3.How does the court justify the support award?

4.What reasons does the dissent give for objecting to the decision?

5.What philosophical concerns does the dissent raise?