J-A16034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER BORICHEWSKI 

Appellant

v.

MICHAEL C. BORICHEWSKI

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2383 EDA 2021

Appeal from the Order Entered October 11, 2021

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2007-25066, 

PACSES 403109566

MICHAEL C. BORICHEWSKI

v.

JENNIFER BORICHEWSKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2384 EDA 2021

Appeal from the Order Entered October 11, 2021

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2007-25066, 

PACSES 243114794

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 10, 2022

Jennifer Borichewski (Mother) appeals from the October 11, 2021 order 

of the Court of Common Pleas of Montgomery County (trial court) denying her 

exceptions to the hearing officer’s recommendation that she pay child support

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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to her former husband, Michael C. Borichewski (Father). On appeal, she

challenges the trial court’s determinations of: (1) Father’s earning capacity; 

(2) deviation from support guidelines; (3) proof of health insurance; and (4) 

overpayment of support. After review, we reverse the trial court’s health 

insurance determination but affirm in all other respects.

I.

This child support dispute is in its fifth year after several remands from

the trial court to the hearing officer, as each successive remand led to both 

parents filing exceptions to the hearing officer’s recommendations until only 

Mother filed exceptions. In total, there were five rounds of exceptions.1

A. First Round of Exceptions

Father and Mother married in 2001 and divorced in 2009. Their 

marriage produced two children: M.B. (born February 2004), who is autistic 

____________________________________________

1 The trial court conducted the proceedings under Pa.R.C.P. 1910.12, which 

governs the procedure of officer conferences and hearings for support 

matters. Under the procedure, a hearing officer “shall receive evidence, hear 

argument and ... file with the court a report containing a recommendation 

with respect to the entry of an order of support.” Pa.R.C.P. 1910.12(d). “The 

court, without hearing the parties, shall enter an interim order consistent with 

the proposed order of the hearing officer.” Id. at 1910.12(e). Following the 

entry of an interim order, Rule 1910.12 provides that at any party may file 

exceptions within twenty days and explains “matters not covered by 

exceptions are deemed waived[.]” Id. at 1910.12(f). If a party fails to 

request a hearing de novo or file exceptions, an interim support order is a final 

order. Vignola v. Vignola, 39 A.3d 390, 394 (Pa. Super. 2012). See also

Pa.R.C.P. 1910.12(g) (“If no exceptions are filed within the twenty-day period, 

the interim order shall constitute a final order.”).
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and requires constant supervision; and T.B. (born September 2005). After 

the divorce, the parents split custody in a 50/50 arrangement and Father paid

Mother $868.00 a month for support.

On December 29, 2017, Father petitioned to modify support after he 

was involuntarily terminated by his long-time employer, Merck. The hearing 

officer denied his petition as premature because he received severance that

effectively continued his salary for a year. After both parties filed exceptions, 

Father filed a second petition to modify on June 8, 2018, claiming he had 

taken over full custody of the younger son on March 25, 2018.

2

 On July 20, 

2018, the trial court held that (1) the hearing officer correctly concluded that 

the first petition was premature, (2) remand was proper to determine whether

Father’s payments should be increased, and (3) Father’s second petition would

be heard at the remand hearing.

B. Second Round of Exceptions

After the remand hearing, on January 17, 2019, the hearing officer 

issued two recommendations for the different custodial periods. The first

addressed Father’s first petition (Mother v. Father, PACSES #403109566), 

which covered when the parents split custody of both sons (December 29, 

2017, to March 24, 2018). After calculating the parents’ incomes, the hearing 

____________________________________________

2 Mother later stipulated to this fact but only for purposes of the support 

matter because there is a pending custody dispute. See N.T., 12/6/18, at 5.
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officer directed Father to pay support for both sons in the amount of $1,217.10 

for the period, which included an upward ten percent deviation in Mother’s

favor because of Father’s assets, which included a sizable inheritance that he 

received from his father.

For the second case (Father v. Mother, PACSES #243114794), which 

covered the period after Father took full custody of the younger son, the 

hearing officer directed Mother to pay support in the amount of $694.00 per 

month,3 again applying a downward ten percent deviation in her favor. As for 

the period beginning January 1, 2019, because Father had yet to find new 

employment, the hearing officer assessed him with an earning capacity of 

$85,000.00. After applying another deviation in Mother’s favor, the hearing 

officer directed her to pay $802.60 per month.

After both parties filed exceptions, the trial court remanded the matter 

a second time on May 29, 2019, directing the hearing officer to: (1) determine 

the parties’ relative assets; (2) explain her justification for the ten percent 

deviation; (3) determine Father’s inheritance from his father; (4) explain her 

assessment of Father’s earning capacity; (5) set forth any interest or 

____________________________________________

3 The hearing officer stated that this amount covered the period from June 8, 

2018, to December 18, 2018. The trial court later directed the hearing officer 

to correct the period so that the support obligation was effective March 25, 

2018, the date Father took full custody of the younger son.
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dividends Father receives; and (6) recalculate the support under Pa.R.C.P. 

1910.16-4(d), assuming the parties agreed the rule applied.4

C. Third Round of Exceptions

On February 4, 2020, the hearing officer issued her recommendation

addressing the issues. First, recognizing that Father had a much higher net 

worth than Mother, the hearing officer reevaluated her initial calculation and 

increased the deviation in Mother’s favor to 20 percent. Second, addressing 

Father’s earning capacity, the hearing officer explained her assessment by 

reviewing the factors under Pa.R.C.P. 1910.16-2(d)(4)(ii), particularly 

____________________________________________

4 Pennsylvania Rule of Civil Procedure 1910.16-4(d) provides as follows:

(1) Divided or Split Physical Custody. When Each Party Owes

Child Support to the Other Party. When calculating a child support 

obligation and each party owes child support to the other party as 

a result of the custodial arrangement, the court shall offset the 

parties’ respective child support obligations and award the net 

difference to the obligee as child support.

* * *

(2) Varied Partial or Shared Custodial Schedules. When the

parties have more than one child and each child spends either (a) 

different amounts of partial or shared custodial time with the party 

with the higher income or (b) different amounts of partial custodial 

time with the party with the lower income, the trier of fact shall 

add the percentage of time each child spends with that party and 

divide by the number of children to determine the party’s 

percentage of custodial time. If the average percentage of 

custodial time the children spend with the party is 40% or more, 

the provisions of subdivision (c) apply.

Pa.R.C.P. 1910.16-4(d)(1), (d)(2).
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Father’s increased child care responsibilities after taking full custody of the 

younger son while also still splitting custody of the older son. Finally, the 

hearing officer recalculated Mother’s support obligation under Pa.R.C.P. 

1910.16-4(d) now that Father had 100 percent custody of the younger son. 

Upon doing so, the hearing officer determined that a ten percent deviation in 

Father’s favor rather than Mother’s was warranted because Mother exercised

no overnight custody.

After both parties filed exceptions again, the trial court issued its third 

opinion on August 31, 2020, stating that its task was “limited to a 

determination as to whether the [hearing officer] performed an appropriate 

analysis on the limited and enumerated issues.” This task in mind, the trial 

court found no error in the hearing officer’s determinations, including her 

assessment of Father’s earning capacity and deviation in Mother’s favor based 

on Father’s assets. The trial court also agreed with the hearing officer’s

upward deviation in Father’s favor for the younger son’s support but increased 

it to 30 percent because Mother did not spend any custodial time with the 

younger son.

This did not end the matter, though, as the trial court determined

another remand was needed for the hearing officer to make certain 

administrative adjustments, as well as for the parties to provide updated tax 

returns for 2018, 2019 and year-to-date 2020 income for her to determine 

whether any adjustments were proper.
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D. Fourth Round of Exceptions

On December 28, 2020, the hearing officer issued her fourth 

recommendation with the directed adjustments. Both parties again filed 

exceptions. Relevant here, Father claimed that the cost of paying the sons’ 

health insurance through his former employer Merck had significantly 

increased in September 2019 from the prior amount he used to pay of $228.00

per month. Mother, meanwhile, challenged Father being only ordered to pay 

her $6.00 a month for her overpayments through the years, which now totaled 

over $12,000.00.

After argument, the trial court issued its fourth opinion on May 19, 2021, 

remanding one last time for the hearing officer to address the health insurance 

and overpayments. However, because this matter had been going on for 

several years, the trial court directed the hearing officer’s order be entered 

administratively without any further hearing. The trial court, though, directed 

Father’s counsel to provide the hearing officer with “verification of the cost of 

health insurance, which shall be effective September 1, 2019, within 10 days 

of this Order (the verification shall include, but not be limited to, the 

breakdown of proportionate amounts that cover Father and the minor

children.).”

E. Fifth Round of Exceptions

Father complied with the trial court’s order and on May 27, 2021, Father 

submitted to the hearing officer a “Verification of Health Insurance Cost” in 
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which he attested that the cost of providing health insurance for himself and 

the two children had increased to $990.00 a month effective September 1, 

2019. To validate this amount, Father attached a document showing 

automatic withdrawals from his checking account for the health insurance. 

Mother promptly objected via correspondence to the hearing officer, arguing 

that Father provided only unauthenticated proof of the cost of the health 

insurance. On June 17, 2021, the hearing officer issued her final 

recommendation in which she (1) adjusted the monthly health insurance 

premiums to $990.00 and (2) ordered Father to pay $40.00 per month on the 

overpayments.

Mother filed exceptions to reassert her challenges about the health 

insurance and overpayments. At the argument held on September 30, 2021, 

the trial court directed Father to provide additional documentation verifying 

the monthly cost of the health insurance and how it was being allocated 

between Father and the children. According to the trial court, Father 

submitted a packet of documents to the trial court the next day. After 

apparently receiving no response from Mother, the trial court issued its fifth 

and final opinion on October 11, 2021. First, the trial court found that Father

substantially complied with providing verification of the monthly health 

insurance premiums. Moving on to overpayments, the trial court noted that 

Pa.R.C.P. 1910.19(g) provides the procedure for the overpayments of 

support: “[i]f either party objects, the domestic relations section shall 
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schedule a conference to provide the objecting party the opportunity to 

contest the proposed action.” Accordingly, the trial court scheduled a 

conference in front of the hearing officer for November 17, 2021, limited to 

the issue of determining an appropriate repayment plan for Father.

Before that could happen, however, Mother filed these appeals, which 

we consolidated. Mother complied with Pa.R.A.P. 1925(b), and the trial court 

filed its Pa.R.A.P. 1925(a) opinion. On appeal, Mother raises these four issues:

I. Has the lower court distorted [F]ather’s support obligation 

by miscalculating his earning capacity and then granting him a 

one-year vacation from work?

II. Has the lower court debased the whole concept of deviation 

by ignoring the important and compelling circumstances in this 

case implicating Pa.R.C.P. 1910.16-5(b)(1), (b)(5) and (b)(9), 

and by misunderstanding the assumptions under the support 

guidelines, thus improperly deviating in favor of the economically 

advantaged parent?

III. Did the lower court err under Pa.R.C.P. 1910-6(b) by 

assessing a health insurance premium amount and allocation 

solely on the basis of unilateral, unsolicited, unauthenticated, 

unreliable and incomplete information provided by an 

untrustworthy source while denying any opportunity—by way of 

an adversarial proceeding—for objection, cross-examination or 

challenge by contrary evidence, as required by the letter and spirit 

of Pa.R.C.P. 1910.12?

IV. Is the economically disadvantaged parent entitled to 

expeditious reimbursement consistent with Pa.R.C.P. 1910.19(g), 

after she forced—by incorrect orders, under threat of 

incarceration—to overpay child support by more than $12,000.00?
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Mother’s Brief at 11-12.5

II. Father’s Earning Capacity

A.

In her first issue, Mother challenges the assessment of Father’s earning 

capacity of $85,000.00, arguing that the hearing officer made a factual error 

in her analysis by relying on incorrect income figures when she considered 

Father’s earning history. The contested part of the hearing officer’s analysis

reads as follows:

Father's earnings history has been as a long-time employee for 

Merck. He consistently has earned in excess of $80,000 per year, 

and last worked as a market analyst for them when he was let go 

in late 2017. In 2017 he earned $93,711 as an employee of Merck 

and in 2016 his gross earnings were $105,854.

Hearing Officer’s Order, 2/4/20, at 3 (record citations omitted).

____________________________________________

5 Our standard and scope of review of a child support order is well-established:

When evaluating a support order, this Court may only reverse the 

trial court’s determination where the order cannot be sustained on 

any valid ground. We will not interfere with the broad discretion 

afforded the trial court absent an abuse of the discretion or 

insufficient evidence to sustain the support order. An abuse of 

discretion is not merely an error of judgment; if, in reaching a 

conclusion, the court overrides or misapplies the law, or the 

judgment exercised is shown by the record to be either manifestly 

unreasonable or the product of partiality, prejudice, bias or ill will, 

discretion has been abused. In addition, we note that the duty to 

support one’s child is absolute, and the purpose of child support

is to promote the child’s best interests.

Sichelstiel v. Sichelstiel, 272 A.3d 530, 534 (Pa. Super. 2022) (citation 

omitted).
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Mother intuits that the hearing officer arrived at her assessment by 

taking the average of these two figures ($99,783.00) and multiplying it by 

0.85 because she had determined, under the circumstances of the case, that 

Father had a capacity to earn 85 percent of what he had before.

She notes, however, that the figures used by the hearing officer

represented only Father’s federally taxed income from his W-2 forms rather 

than his much higher state and local wage amounts on those forms, which 

were $118,518.00 for 2017 and $125,863.00 for 2016. After averaging these 

two figures and applying the 85 percent assessment, Mother contends the 

hearing officer should have come up with an earning capacity of $104,000.00.

“A person's earning capacity is defined not as an amount which the 

person could theoretically earn, but as that amount which the person could 

realistically earn under the circumstances, considering his or her age, health, 

mental and physical condition and training.” Gephart v. Gephart, 764 A.2d

613, 615 (Pa. Super. 2000). At the time the hearing officer considered this 

matter, Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4), which 

addresses earning capacity, provided, in pertinent part:

If the trier of fact determines that a party to a support action has 

willfully failed to obtain or maintain appropriate employment, the 

trier of fact may impute to that party an income equal to the 

party’s earning capacity. Age, education, training, health, 

work experience, earnings history and child care 

responsibilities are factors which shall be considered in 

determining earning capacity. In order for an earning capacity 

to be assessed, the trier of fact must state the reasons for the 

assessment in writing or on the record. Generally, the trier of fact 

should not impute an earning capacity that is greater than the 
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amount the party would earn from one full-time position. 

Determination of what constitutes a reasonable work regimen 

depends upon all relevant circumstances including the choice of 

jobs available within a particular occupation, working hours, 

working conditions and whether a party has exerted substantial 

good faith efforts to find employment.

Pa.R.C.P. 1910.16-2(d)(4).

6

Contrary to Mother’s assertions, the hearing officer’s earning capacity 

determination was not confined to the simple application of a mathematical 

formula. Instead, as required by the rule, she considered the enumerated 

factors and arrived at an assessment for which Father’s earning history was 

but one factor considered among others.

Indeed, the hearing officer detailed how she arrived at her assessment:

At the time of the initial hearing of this matter on March 12, 

2018, father testified that after a 25-year career at Merck he was 

let go due to company-wide layoffs and reorganization. The 

parties stipulated that his separation from Merck was through no 

fault of father (N.T. 3/12/18 p 12). At the time of the hearing, 

father was 51 years old, in relatively good health, had a Bachelor’s 

Degree and a Master’s Degree in Business (N.T. 3/12/18, p 6).

Father has made a good faith effort to secure alternate likekind employment without success. He has taken advantage of the 

job placement services provided by Merck which assisted him with 

____________________________________________

6 Rule 1910.16-2 was recently updated with an expanded list of factors to be 

considered. Under the current version, which became effective January 1, 

2022, “the trier-of-fact shall consider the party’s: (A) child care 

responsibilities and expenses; (B) assets; (C) residence; (D) employment and 

earnings history; (E) job skills; (F) educational attainment; (G) literacy; (H) 

age; (I) health; (J) criminal record and other employment barriers; (K) record 

of seeking work; (L) local job market, including the availability of employers 

who are willing to hire the party; (M) local community prevailing earnings 

level; and (N) other relevant factors.” Pa.R.C.P. 1910.16-2(d)(4)(ii).
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updating his resume and Linkedln profile (N.T. 3/12/18 p 22 lines 

1-25). He has applied to numerous positions that would 

accommodate his child care schedule in “analytical and teaching 

categories... pharmaceutical sales, sales analyst, and sales 

training” (N.T. 3/12/18 p 24-25). Father has not been successful 

thus far, despite reasonable and exhaustive efforts in finding 

suitable employment. He has attempted to mitigate his 

circumstances.

Father’s earnings history has been as a long-time employee 

for Merck. He consistently has earned in excess of $80,000 per 

year, and last worked as a market analyst for them when he was 

let go in late 2017 (N.T. 12/6/18 p 12 line 9). In 2017 he earned 

$93,711 as an employee of Merck (exhibit D-1) and in 2016 his 

gross earnings were $105,854 (exhibit D-2).

Father’s child care responsibilities, particularly with regard 

to [M.B.], who is disabled, impact his ability to earn income. 

Additionally, Father has 100% of the parties’ youngest child, 

[T.B.], who at the time of the hearing in this matter was 13 years 

of age.

Father and mother have 50/50 custody of the parties’ oldest 

child, [M.B.]. The parties stipulate that [M.B.] is “severely 

autistic, and very disabled, requires consistent care and 

supervision and except for family members, he cannot be cared 

for by third party caregivers. It is extremely difficult to find any 

third party caregivers who are willing and/or capable to care for 

him” (N.T. 12/6/18 p 5 line 8).

While at Merck, father had great latitude in work hours and 

location. Father testified he worked “full-time hours... from the 

morning until early afternoon in which they allowed me to go 

home, get my son off the bus, and monitor-any particular help 

that I had to with [M.B.] while working from home” (N.T. 12/6/18

p 12 line 16). Father also testified that “Merck made 

accommodations for me so that I didn’t have to travel, attend 

certain onsite meetings and made extensive accommodations 

knowing that at the drop of a hat, I might have to run home or to 

the hospital to take care of my son” (N.T. 12/6/18 p 13 line 21). 

Further, father has had difficulty finding staff to care for [M.B]

(N.T. 12/6/18 p 15 line 5). Father has even taken additional 

custody of [M.B.] when the child was sick even though it was 

supposed to be mother’s custodial time (N.T. 12/6/18 p 14 line 
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14-21). His job search for similar work environments has been

unsuccessful. Unlike mother who has family support to care for 

Michael during her periods of custody, father has none. He has 

no family on whom he can rely. Additionally, he has [T.B.] 100% 

of the time and must be available for the responsibilities that go 

along with being solely responsible for his care. Finally, when 

father was able to find third party caregivers the cost per hour 

ranged from $25-$50 (N.T. 12/6/18 p 16 line 19) which at this 

point is not cost effective and not conducive to his caring for his 

sons.

Father must be available during his custodial time to get 

[M.B.] on the school bus at 6:20 am and retrieve him from the 

bus at 2:25 pm (N.T. 12/6/18 p 19).

Father’s child care responsibilities, particularly as they relate 

to [M.B], compromise his ability to work at the same financial level 

as when he was employed with Merck. [M.B.] requires much care

and supervision. Father has no family or friends that can assist in 

this regard, and mother has, in the past, demonstrated an inability 

to be flexible. with help even in emergency circumstances. Father 

testified that he was unable to be with his father in Seattle when 

he passed away because mother would not care for the children 

(N.T. 12/6/18 p 26 lines 15-17). Father is found to be credible in 

his testimony regarding his child care responsibilities. Father’s job 

search and earning capacity are detrimentally impacted when his

child care responsibilities are taken into account.

Taking into consideration father’s age, education, work 

history, prior earnings and child care responsibilities, father is 

found to have an earning capacity of $85,000 per year. Father 

enjoyed a long and profitable career at Merck. His employer’s 

flexibility permitted him great leeway in his work hours so that he 

was able to maintain his job while simultaneously caring for his 

children. Father has not found suitable employment with such 

flexibility. There is no dispute as to the monumental effort it takes 

to care for the parties’ oldest child.

Hearing Officer Order, 2/4/2020, at 3-4 (record citations cleaned up).

As noted, we will not interfere with the broad discretion afforded the 

trial court absent an abuse of the discretion or insufficient evidence to sustain 
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the support order. See Sichelstiel, supra. Indeed, “A reviewing court does 

not weigh [earning capacity] evidence or determine credibility as these are 

functions of the trial court.” Doherty v. Doherty, 859 A.2d 811, 812 (Pa.

Super. 2004) (citation omitted). Here, as the hearing officer’s considered 

discussion shows, she considered not only Father’s earning history but all the 

factors outlined in Rule 1910.16-2(d). In particular, the hearing officer 

focused on Father’s child care responsibilities relating to M.B. and the difficulty 

Father had in finding employment that can accommodate the need for him to 

be available to attend M.B.’s needs, not to mention that Father also has 100 

percent custody of the younger son, T.B.

Mother ignores this analysis, instead alleging that the hearing officer 

arrived at her earning capacity assessment by applying a mathematical 

formula—though implicitly—based on averaging Father’s earnings history and 

then simply determining that it could be 85 percent of that history. Besides 

this proposition being belied by the hearing officer’s own discussion, this Court 

has held that past earnings alone cannot support a determination of earning 

capacity without corroborating evidence that the party still has the capacity to 

earn that amount. See D.H. v. R.H., 900 A.2d 922 (Pa. Super. 2006) (holding 

trial court erred in determining earning capacity based solely on party’s most 

recent tax return).

There is no requirement in Rule 1910.16-2(d) that a party’s earning 

capacity must be adjusted to reflect the enumerated factors, including earning 
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history; instead, the rule requires only that the factors “shall be considered in 

determining earning capacity.” The hearing officer needed to do no more than 

consider Father’s earning history in determining earning capacity, and she did 

that along with considering all the other factors. This Court will not, as Mother 

seems to ask, substitute the hearing officer’s considered determination with 

the mechanical application of a formula for determining earning capacity that 

is not grounded in either statute or case law. Like the trial court, we find no 

abuse of discretion in the hearing officer’s earning capacity determination.

B.

Mother also claims that the trial court miscalculated Father’s earnings 

for 2018 by not combining his actual earnings, investment income and earning 

capacity, which, as discussed, she believes should have been $104,000.00. 

Adding these together, she asserts that the hearing officer should have 

imputed an income of $252,711.00 for 2018 for Father, rather than just his 

actual income for that year ($146,649.00), which is what was used.

The trial court addressed this complaint in its Pa.R.A.P. 1925(a) opinion:

Here, Mother has repeatedly taken issue with the 

determination of Father’s earning capacity to the extent that she 

believes that Father’s 2018 income findings should combine 

Father’s imputed earning capacity of $85,000 in addition to the 

$146,649 actual he earned as Merck severance (resulting in a total 

figure of $231,649—a much higher figure than Father has ever 

earned). However, Mother’s assertion is misplaced as Pa.R.C.P. 

1910.16-2(d)(4)(i)(A)(I) makes clear that the Officer shall not 

impute to the party an earning capacity that exceeds the 

amount the party could earn from one full-time position. In 

combining both Father’s earning capacity with his actual wages 
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and dividends, the court would effectively be imputing an earning 

capacity exceeding one full-time position.

While it may be argued that Father was not “working” to 

receive the $146,649 for the 2018 year (as it was partially based 

on his receipt of severance), this argument fails to consider that 

three (3) vital factors that were specifically considered in the 

Officer’s February 4, 2020 Order:

(1) The parties stipulated that Father’s separation from his 

prior job at Merck was through no fault of his own;

(2) Father’s child care responsibilities exponentially increased 

when he was awarded one hundred (100%) full custody of 

the parties youngest child, [T.B.], and shared the custody of 

the holder child, [M.B.] (who is severely autistic and 

disabled); and

(3) That the Hearing Officer’s analysis of Father’s earning 

capacity considered whether Father could obtain employment 

remotely close to what he earned previously at Merck.

The consideration of the aforementioned three (3) points all 

support the Officer’s finding for Father’s earnings for 2018 as 

being based solely on his actual wages and dividends. Namely, 

because it was agreed upon that Father’s separation was 

involuntary, the Officer did not impute an earning capacity in 

addition to his actual income for 2018; because Father would have 

increased child care responsibilities, the Officer did not assign an 

amount that would effectively prevent Father from fulfilling these 

responsibilities; and lastly, because Father was making good faith 

efforts to obtain other employment, to no avail, the Officer did not 

assign an earning capacity in addition to what Father earned as 

severance from Merck.

Trial Court Opinion (TCO), 2/18/22, at 15-16 (emphasis in original, footnotes 

omitted).

We find no error with this analysis. Mother cites no statute, rule or case 

law for her proposition that both Father’s actual income and earning capacity 

should have been imputed to him, especially given Rule 1910.16-2(d) stating
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that the trier-of-fact, “shall not impute to the party an earning capacity that 

exceeds the amount the party could earn from one full-time position[.]” 

Pa.R.C.P. 1910.16-2(d)(4)(i)(A)(I). Consistent with that rule, the hearing 

officer used Father’s 2018 actual income for calculating support, which, in fact, 

exceeded his earning capacity. As the hearing officer found, Father made

good-faith efforts in 2018 to find employment after being involuntarily 

terminated, but could not find employment that was both comparable to what

he had with Merck and conducive to his increased child care responsibilities. 

As Mother cites no authority to the contrary, we find no error with Father’s 

actual income for 2018 being used rather than his combined actual income 

and earning capacity.

III. Deviation from Guidelines

In her second issue, Mother raises three complaints with the deviation 

determinations for the guidelines. The first two focus on the deviation in her 

favor, as she asserts it was too low because of the hearing officer’s 

misapplication of the deviation factors under Pa.R.C.P. 1910.16-5; the third

focuses on the deviation against her after Father took full custody of the 

younger son.

“[T]he support guidelines set forth the amount of support which a 

spouse or parent should pay on the basis of both parties’ net monthly incomes 

... and the number of persons being supported.” Pa.R.C.P.1910.16–1(a). 
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There is a rebuttable presumption that the guideline amount of child support 

is the correct amount. Pa.R.C.P.1910.16–1(d).

That said, “a court generally has reasonable discretion to deviate from 

the guidelines if the record supports the deviation.” Silver v. Pinskey, 981

A.2d 284, 296 (Pa. Super. 2009). Rule 1910.16–5 addresses deviation from 

the guidelines as follows:

(a) Deviation.

(1) The trier-of-fact may deviate from the basic child support, 

spousal support, or alimony pendente lite obligation.

(2) If the trier-of-fact determines a deviation is appropriate based 

on the factors in subdivision (b), the trier-of-fact shall specify on 

the record or in writing:

(i) the calculated basic child support, spousal support, or 

alimony pendente lite obligation;

(ii) the reason for the deviation;

(iii) the findings of fact justifying the deviation;

(iv) the deviation amount; and

(v) in a spousal support or an alimony pendente lite action, 

the obligation’s duration.

Note: The deviation applies to the amount of the support 

obligation and not to the amount of income.

(b) Factors. In deciding whether to deviate from the amount of 

support determined by the guidelines, the trier of fact shall 

consider:

(1) unusual needs and unusual fixed obligations;

(2) other support obligations of the parties;
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(3) other income in the household;

(4) ages of the children;

(5) the relative assets and liabilities of the parties;

(6) medical expenses not covered by insurance;

(7) standard of living of the parties and their children;

(8) in a spousal support or alimony pendente cite case, the 

duration of the marriage from the date of marriage to the date of 

final separation; and

(9) other relevant and appropriate factors, including the best 

interests of the child or children.

Pa.R.C.P.1910.16–5.

A.

Mother first argues that the hearing officer erred in addressing only “the 

relative assets and liabilities of the parties” under subsection (b)(5). 

According to Mother, the hearing officer should have also considered the 

“unusual needs” fact under subsection (b)(1), as well as the catchall factor 

under subsection (b)(9), which directs the trier of fact to consider “other 

relevant and appropriate factors.” Mother asserts that the other factor here 

is the extraordinary measures that her family members have to take in helping 

take care of M.B. and his needs while Mother maintains full-time employment 

and supports her children from her second marriage. She contends the 

hearing officer’s failure to account for her family’s caregiving efforts effectively 

results in her family subsidizing Father.
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We first note that the factual basis for Mother’s contention rests on a 

brief exchange during Father’s testimony at the remand hearing.

[Q]: Who helps [Mother] care for [M.B.] when he’s in her custody?

[Father]: Her father, her grandmother, her husband, and at times 

I’ve heard of cousins.

[Q]: Her father, Mr. Fonash, her attorney?

[Father]: Yes.[7]

[Q]: You don’t have anybody that can help you like that?

[Father]: No.

N.T., 12/6/18, at 16. Mother objected to this testimony on hearsay grounds

but the hearing officer overruled her, stating that the evidence was relevant 

and that Mother could testify on the matter when it was her turn. Id. Mother 

did not seek to develop any evidence at the remand hearing in support of her 

contention that deviation was proper under subsections (b)(1) and (b)(9) 

based on her family’s caregiving efforts. During her testimony, Mother was 

not asked about her family members’ efforts in helping taking care of M.B. 

while she worked, nor did she present any of her family members to testify 

about such efforts.

In any event, as this Court has explained, “Rule 1910.16–5(a) requires 

only that the trial court specify in writing or on the record the guideline amount 

____________________________________________

7 Mother’s father is an attorney and has served as her counsel throughout 

these proceedings.
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for support and its reasons and factual justification for the amount of the 

deviation.” E.R.L. v. C.K.L., 126 A.3d 1004, 1009 (Pa. Super. 2015). See

also Silver v. Pinskey, 981 A.2d 284, 296 (Pa. Super. 2009) (in childsupport, once court has properly consulted guidelines, it may deviate from 

guideline figure, as long as court provides adequate reasons for deviation).

After the second remand, the hearing officer explained her factual 

justification for her 20 percent deviation in Mother’s favor. While focusing on 

the relative assets of the parties, the hearing officer complied with Rule

1910.16–5(a) by explaining, as directed by the trial court, her factual 

justification for the 20 percent deviation. See Hearing Officer Order, 2/4/20, 

a 2-3 (quoted below). We will not find that the trial court abused its discretion 

by failing to discuss deviation factors for which, as noted, Mother failed to 

develop evidence. See E.R.L., supra (holding no abuse of discretion in trial 

court’s consideration of deviation factors where it stated it considered all 

relevant factors and discussed its reasons for deviation).

B.

Mother next contends that the hearing officer misapplied the deviation 

factor under subsection (b)(5) by failing to give a larger deviation in her favor 

based on Father’s net worth exceeding hers by over two million dollars. She

believes that this vast disparity alone compels a 100 percent deviation. In 

support of her argument, she cites four cases: J.P.D. v. W.E.D., 114 A.3d 

887 (Pa. Super. 2015); E.R.L., supra; Colonna v. Colonna, 855 A.2d 648 
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(Pa. 2004); and Suzanne D. v. Suzanne W., 65 A.3d 965 (Pa. Super. 2013). 

In Mother’s view, these cases involve similar factual scenarios where the 

parents’ disparity in assets warranted a higher deviation than that given in 

this case.

Before reviewing those cases, however, we first look at the hearing 

officer’s analysis. As noted, she agreed that a deviation was warranted based 

on Father having more assets than Mother. Based on this disparity, she

applied a 20 percent deviation in Mother’s favor. In so doing, though, the 

hearing officer clarified that she would not consider any of Father’s assets part 

of the parties’ divorce and equitable distribution. As she explained:

There is no dispute that father has a much higher net worth than 

mother. As a result of this disparity there will be a 20% deviation 

in the support calculations in these matters.

Father continued to work for an additional 8.5 years after Divorce. 

Any of the assets that originated as a result of his employment at 

Merck have values that include assets he received in Equitable 

Distribution. The current value of his stock options and 401k 

include: funds left after Divorce; increase in value of funds left 

intact after Divorce, and contributions made to these funds after 

Divorce.

No deviation due to these funds will be considered. To do so would 

result in “double dipping” by mother. Mother received 60% of the 

value of these assets in Divorce. Husband’s retained portion 

constitutes an asset that was considered in Equitable Distribution. 

Additionally, when support was calculated after separation, 

father’s income took into consideration his gross income less taxes 

only. The funds he contributed to these assets were factored in 

as income available for support. The fact that he saved this 

money and did not squander it is of no consequence. It would be 

improper to have used that income as income available for support 

in the past, and now claim that those same funds should alleviate 

a portion of mother’s support obligation by deviating in her favor.
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Father inherited a substantial amount of money from his father, 

Joseph Borichewski. A review of the Estate documents show that 

he was to receive $856,864.94. The Estate has net assets of 

$2,570,594.82 and father was a one-third beneficiary. Father 

owed $31,794 in taxes as a result of the receipt of some of these 

funds, and paid off the mortgage on his home.

Father has reduced living expenses because he was able to pay 

off his mortgage from his inheritance. He has $70,476.12 in his 

Bank of America Checking account and $158,890.52 in his Bank 

of America Savings account. However, he is currently 

unemployed despite an exhaustive, diligent job search and has 

been held to an earning capacity of $85,000 per year. The liquid 

assets he has are sustaining him during what has turned out to be 

long-term unemployment, as well as assisting in the payment of 

his significant legal fees which totaled $105,000 for 2017 and

2018. This liability is one which mother has not incurred.

Father’s separate non-marital assets as outlined above are 

significantly greater than mother’s; therefore the 20% deviation 

is appropriate in the calculation of support. The existence of 

separate significant assets by a parent does not alleviate the 

obligation of the other parent to support their child. Mother’s 

position is that she should receive a 100% deviation due to 

father’s assets. The support of a child is a parent’s paramount 

responsibility; and in this particular case one cannot overlook that 

father has 100% custody of the child Tyler and 50% custody of 

the child Michael. Mother has an obligation to provide for the 

support of these children according to her net income available for 

support despite father’s separate assets. ...

Hearing Officer’s Order, 2/4/20, at 2-3 (record citations omitted).

With this analysis in mind, we find that none of the cases cited compel

disturbing the hearing officer’s determination. First, in J.P.D., a trial court 

applied a 100 percent deviation against a father and increased his support 

payments because all his expenses were paid by his new wife, who earned 

nearly one million dollars in annual net income. J.P.D., 114 A.3d at 890-91. 
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On appeal, this Court affirmed the trial court’s deviation determination

because it was supported by record evidence that all of father’s income was 

available for child support. Id. at 891. Unlike J.P.D., Father here does not 

have another source of income to rely on for paying his expenses; instead, as 

the hearing officer highlighted, he has had to rely on his liquid assets while he 

unsuccessfully sought comparable employment after his involuntary 

termination.

Second, in E.R.L., the trial court deviated from the guidelines because 

the father not only had an earning capacity of $76,000, but also had access 

to around $600,000 from an inheritance that he received while litigation was 

pending. See E.R.L., 126 A.3d at 1006. The father challenged the extent of 

the deviation on appeal but this Court affirmed, finding that the trial court was 

within its discretion in applying the deviation to ensure that the children had 

an appropriate level of financial support. Id. at 1009-10. We fail to see how 

E.R.L. supports disturbing the hearing officer’s determination here, not to 

mention that the upward deviation in E.R.L. was just over 40 percent, which 

is not exponentially higher than what was applied here.

Third, in Colonna, our Supreme Court held that a trial court abused its 

discretion by failing to determine whether a deviation from the support 

guidelines is appropriate where the father’s monthly income was about 

$193,000.00 and the mother’s was $55,000.00, even if deviation resulted in 

the father, who had primary custody of the children, being ordered to pay the 
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mother with partial custody. See Colonna, 855 A.2d at 652. Again, we do 

not find that Colonna helps Mother’s argument because (1) the hearing officer 

here applied a deviation because of Father’s net assets, and (2) the Colonna

Court’s holding was limited to finding that “it is an abuse of discretion for the 

trial court to fail to consider whether deviating from the support guidelines, 

even in cases where the result would be to order child support for a parent 

who is not the primary custodial parent.” Id. Indeed, the Court stated 

nothing about what percent of deviation should be applied when the parents’ 

incomes differ significantly.

Finally, in Suzanne D., the trial court applied an upward deviation to 

the father’s support obligation because of regular gifts from the grandfather. 

See Suzanne D., 65 A.3d at 968. This Court found that the trial court did 

not abuse its discretion in deviating upward because, “[t]he record reflects 

that Father's monthly income is almost doubled by Grandfather's gifts,” which 

was “in addition to the expenses for the Children that Grandfather pays or 

reimburses.” Id. at 973. Because there was no indication in the record that 

grandfather’s gifts would cease and because gifts are an appropriate factor to 

consider whether to deviate, this Court held that the trial court did not abuse 

its abuse of discretion in the trial court’s determination that a deviation was 

warranted. Id. Again, like the above cases, Suzanne D. does not compel a 

different result here, as this Court merely held that the trial court did not 

abuse its discretion where there was evidence supporting deviation, which 
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Mother observes was only 32 percent from the guidelines based on one party’s 

assets.

Like we did with the hearing officer’s earning capacity assessment, we 

find no error in her determination of a 20 percent deviation in Mother’s favor 

based on Father having a higher net worth than Mother. Indeed, “a court has 

reasonable discretion to deviate from the guidelines if it appears to be

necessary and the record supports the deviation.” Ricco v. Novitski, 874 

A.2d 75, 82 (Pa. Super. 2005). As the above discussion shows, the hearing 

officer considered the disparity in assets and found that a deviation based on 

the disparity was appropriate. In so doing, however, the hearing officer 

explained why that disparity did not warrant the higher deviation sought by 

Mother, noting Father’s assets that were part of the equitable distribution in 

2009 as well as Father relying on his liquid assets as he could not find new 

employment while also retaining 50 percent custody of the older son and 100 

percent custody of the younger son.

Mother fails not to address these points in her argument but, as 

reviewed above, also cites no case law that the hearing officer committed an 

abuse of discretion here by applying a 20 percent deviation in her favor. Like 

the earning capacity, determination of the proper percentage for deviation 

because of a disparity in the parents’ assets cannot be reduced to a simple 

mathematical formula, and we decline to establish one here as Mother seems 

to be requesting. For these reasons, we find no merit with her second 
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deviation complaint about the hearing officer’s application of 

Pa.R.C.P.1910.16–5(b)(5).

C.

In her final deviation subissue, Mother assails the trial court’s 30 percent 

deviation in Father’s favor for the support of the younger son after Father took 

over full custody of him. By way of background, the trial court increased the 

hearing officer’s upward deviation in Father’s favor from ten to 30 percent 

based on an explanatory comment to Pa.R.C.P. 1910.6-4, which provides:

The basic support schedule incorporates an assumption that the 

children spend 30% of the time with the obligor and that the 

obligor makes direct expenditures on their behalf during that time. 

Variable expenditures, such as food and entertainment, that 

fluctuate based upon parenting time were adjusted in the schedule 

to build in the assumption of 30% parenting time. Upward 

deviation should be considered in cases in which the obligor has 

little or no contact with the children. However, an upward 

deviation may not be appropriate if an obligor has infrequent 

overnight contact with the child, but provides meals and 

entertainment during daytime contact. Fluctuating expenditures 

should be considered rather than the extent of overnight time. A 

downward deviation may be appropriate when the obligor incurs 

substantial fluctuating expenditures during parenting time but has 

infrequent overnights with the children.

Pa.R.C.P. 1910.6-4, (Explanatory Comment 2010).

Mother asserts that the trial court misconstrued the 2010 comment by 

ignoring that the comment states that the deviation can either be upward or 

downward for the non-custodial parent. Mother contends that the focus 

should be on the non-custodial parent’s expenditures for the child, not 
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custodial time. This, she believes, is made clear by the explanatory comment 

to Pa.R.C.P. 1910.16-1, which provides, in pertinent part:

... the amounts of basic child support were adjusted to incorporate 

into the schedule the assumption that the children spend 30% of 

the time with the obligor and that the obligor makes direct 

expenditures on their behalf during that time. That does not mean 

that the entire schedule was reduced by 30%. Only those variable 

expenditures, such as food and entertainment, that fluctuate 

based upon parenting time were adjusted.

Pa.R.C.P. 1910.16-1 (Explanatory Comment 2010, E. Shared Custody). In 

Mother’s view, this comment recognizes that when Father took over 100 

percent custody of the younger son, only Mother’s variable expenses such as 

food and entertainment for the younger son were affected, yet the trial court 

still felt it necessary to increase the upward deviation to 30 percent in Father’s 

favor.8

We disagree with Mother’s reading of the explanatory comments to 

Rules 1910.6-1 and 1910.6-4 as establishing that the trial court erred in its 

deviation determination. As both above explanatory comments recognize, the

____________________________________________

8 Father does not address the merits of Mother’s claim, arguing that she has 

waived this issue for raising it for the first time on appeal. Mother, however, 

challenged the hearing officer’s initial ten percent upward deviation in her 

exceptions to the hearing officer’s February 4, 2020 recommendation. See

Mother’s Exceptions, 2/21/20, at ¶ 13c. Additionally, contrary to Father’s 

contentions, Mother included this issue in her Pa.R.A.P. 1925(b) statement, 

and the trial court addressed the issue’s merits in its Pa.R.A.P. 1925(a) 

opinion. See TCO at 19-22. As Father has failed to cite any analogous case 

law showing that Mother needed to do more to preserve this issue, we 

conclude we may address its merits.
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amount of basic child support due under the support guidelines assumes that 

children spend 30 percent of their time with the obligor and that the obligor 

makes direct expenditures on their behalf during that time. Even so, the 

explanatory comment to Rule 1910.16-4 notes that a court may make an 

upward deviation to basic child support in such cases, stating, “in cases in 

which the obligor has little or no contact with the children.” The trial court 

has complete discretion to decide whether to grant an upward deviation. See

Morgan v. Morgan, 99 A.3d 554, 560 (Pa. Super. 2014). Indeed, the upward 

deviation may not be appropriate where the evidence shows that the noncustodial parent still makes direct expenditures on the child’s behalf even 

though the parent has infrequent overnight custody.

Here, Mother essentially argues that the trial court abused its discretion 

in deviating upward in Father’s favor even though she had no parenting time 

with the younger son. However, at the remand hearing, Mother stipulated 

that Father had 100 percent overnight custody of the younger son (who was 

13 at the time of the hearing) beginning on March 25, 2018. See N.T., 

12/6/18, at 4. At that hearing, she presented no evidence that she still had 

infrequent overnight contact with the younger son or provided any meals and 

entertainment during daytime contact, let alone whether she had any daytime 

contact. Likewise, she presented no evidence of any fluctuating expenditures 

on the younger son’s behalf that would warrant a downward deviation.
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As there was no evidence that Mother had any expenditures on the 

younger son’s behalf, the trial court withdrew the assumption built into the 

guidelines that Mother, as the non-custodial parent, was still providing for the 

younger son’s living expenses up to 30 percent of the time. Put differently, 

the trial court merely deprived Mother of the built-in assumption into the 

guidelines that she spent 30 percent of the time with the younger son because, 

as she herself stipulated, Father had 100 percent custody of the younger son. 

As Mother has cited no case law or evidence to contradict the trial court’s 

determination, we will not disturb its deviation determination.

IV. Proof of Health Insurance

Next, Mother challenges the trial court’s procedure for upwardly 

adjusting the monthly health insurance premiums from $228.00 to $990.00. 

As noted, the trial court’s fourth and final remand directed the hearing officer 

to enter her new order “administratively, without the necessity of further 

hearings,” and allowed for Father to submit verification of the increased cost 

of the children’s health insurance. Based on this verification and over Mother’s 

objection, the hearing officer increased the monthly health insurance 

premiums. Then, when Mother challenged this procedure in her exceptions, 

the trial court requested that Father submit additional documentation verifying 

that the health insurance for the children had increased to $990.00. Upon 

Father doing so, the trial court was “satisfied that Father is in substantial 
J-A16034-22

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compliance with providing verification of the monthly premiums such that the 

Order can be finalized.” Memorandum and Order, 10/11/21, at 4.

On appeal, Mother asserts that this procedure deprived her of the 

opportunity to challenge Father’s unauthenticated proof for the increased 

health insurance. Father counters that the trial court’s procedure follows the 

expedited procedures for the admission of hearsay evidence at support 

proceedings under 23 Pa.C.S. § 4342, which provides, in pertinent part:

(a) General rule.--The Supreme Court shall by general rule 

provide for expedited procedures for the determination of 

paternity and the determination and enforcement of support. The 

procedures shall include an office conference; a conference 

summary to the court by the hearing officer; an opportunity for 

the court to enter an order without hearing the parties; and an 

opportunity for the parties to demand a full hearing by the court.

(b) Alternate procedure.--The Supreme Court shall also 

provide an alternate expedited procedure which may be adopted 

by local rule of the courts of common pleas. The procedure shall 

include an office conference; an evidentiary hearing before a 

hearing officer who shall be an attorney; a transcript of the 

testimony; a report and recommendation to the court by the 

hearing officer; and an opportunity for the filing of exceptions with 

and argument before the court.

* * *

(f) Hearsay exception.--For proceedings pursuant to this 

section, a verified petition, affidavit or document and a document 

incorporated by reference in any of them which would not be 

excluded under the hearsay rule if given in person is admissible in 

evidence if given under oath by a party or witness.

23 Pa.C.S. § 4342.

Father also cites Pa.R.C.P. 1910.29, which governs evidence in support 

matters. Rule 1910.29 provides, in pertinent part:
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(a) Record Hearing. Except as provided in this rule, the 

Pennsylvania Rules of Evidence shall be followed in all record 

hearings conducted in an action for support. A verified petition, 

affidavit or document, and any document incorporated by 

reference therein which would not be excluded under the hearsay 

rule if given in person shall be admitted into evidence if (1) at 

least 20 days’ written notice of the intention to offer them into 

evidence was given to the adverse party accompanied by a copy 

of each document to be offered; (2) the other party does not 

object to their admission into evidence; and (3) the evidence is 

offered under oath by the party or witness. An objection must be 

in writing and served on the proponent of the document within 10 

days of the date of service of the notice of intention to offer the 

evidence. When an objection is properly made, the Pennsylvania 

Rules of Evidence shall apply to determine the admissibility of the 

document into evidence.

Pa.R.C.P. 1910.29(a).

Given that this matter extended over five years with many hearing and 

is memorialized in 5800 pages of testimony, we understand the trial court’s 

exasperation that led to it resolving the amount of the children’s healthcare

just by Father providing proof without the necessity of a hearing. However, 

Mother has a right to challenge the procedure.

Having said all that, we reluctantly vacate and remand because neither 

Father’s verification to the hearing officer nor his submittal of new documents 

to the trial court met the requirements under Rule 1910.29 for evidence in 

support matters. Under Rule 1910.29, which Father tries to rely on, such 

verification cannot be admitted unless the other party does not object. The 

certified record shows, however, that Mother promptly objected to Father’s 

verification by correspondence to the hearing officer dated May 28, 2021. See

Mother’s Exceptions 7/6/21, Exhibit M-3. As a result, the hearing officer could 
J-A16034-22

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not rely on Father’s verification without first having an evidentiary hearing in 

which his proof of the increased health insurance premium was properly 

authenticated.

The same holds true for the trial court’s procedure after argument on 

Mother’s exceptions, as it directed Father’s counsel to provide it with additional 

documentation showing that the monthly cost of the health insurance had 

increased to $990.00. Again, this procedure failed to satisfy Rule 1910.29

concerning evidence in a support matter, dispensing with the need to give the 

adverse party at least 20 days’ notice of the hearsay evidence, thus giving the 

adverse party an adequate opportunity to object to the admission of the 

evidence.

We find that the trial court erred in allowing the monthly cost of the 

health insurance premiums to be adjusted based on hearsay evidence that 

was not properly admitted under Rule 1910.29.9

____________________________________________

9 Because the additional documentation submitted to the trial court was not 

made part of the certified record, Father filed a supplemental reproduced 

record containing the documentation. In response, Mother filed an application 

to strike the supplemental record and a portion of Father’s brief, as well asking 

this Court to sanction Father for violating the Rules of Appellate Procedure. 

Since we grant Mother the relief she seeks on this issue, we deny her motion 

to strike as moot, as well as deny her request for sanctions.
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V. Overpayment of Support

In her final issue, Mother asserts that the trial court erred in declining 

to address the sizable credit that Father must pay her. As noted, the trial 

court ordered that the matter should be addressed in a remand to the hearing 

officer in accordance with Pa.R.C.P. 1910.19(g), which provides as follows:

If there is an overpayment in an amount in excess of two months 

of the monthly support obligation and a charging order remains in 

effect, after notice to the parties as set forth below, the domestic 

relations section shall reduce the charging order by 20% or an 

amount sufficient to retire the overpayment by the time the 

charging order is terminated. The notice shall advise the parties 

to contact the domestic relations section within 30 days of the 

date of the mailing of the notice if either or both of them wishes 

to contest the proposed reduction of the charging order. If either 

party objects, the domestic relations section shall schedule 

a conference to provide the objecting party the opportunity 

to contest the proposed action. If neither party responds to 

the notice or objects to the proposed action, the domestic 

relations section shall have the authority to reduce the charging 

order.

Pa.R.C.P. 1910.19(g)(1) (emphasis added).

Consistent with this rule, a separate proceeding to address this issue of 

Father’s payment of the credit was scheduled before Mother filed this appeal. 

After quoting Rule 1910.19(g), the trial court explained in its Pa.R.A.P. 

1925(a) opinion:

[T]he issue of Mother’s overpayment/credit was to be 

addressed in a separate proceeding before Domestic Relations to 

determine the appropriate reduction in the charging order (such 

that the overpayment ostensibly could be exhausted by the time 

the order is terminated).

Seeing that this case had dragged on long enough, the [trial 

court] took the initiative to appropriately secure a specific date 
J-A16034-22

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before the Officer, whereby the overpayment could be addressed 

pursuant to the Rule, without delay. However, this proceeding 

has since been delayed due to Mother’s instant appeal.

As noted in the October 11, 2021 Order, the [trial court]

secured November 17, 2021 for the parties to appear before the 

Officer and be afforded the opportunity to present their respective

positions on the issue. This action would not have been 

appropriate within the last administrative remand directed by the 

undersigned which was focused on very limited and corrective 

action items. The overpayment issue requires separate 

considerations and findings and should follow the process 

set forth in the Rule.

Lastly, given that the amount of credit is so significant in 

this matter (over $12,000) and that Mother’s monthly support 

obligation for two (2) children is so minimal ($201.01 a month), 

the Court believed it was prudent for the Officer to receive 

testimony from the parties on Father’s ability to pay a lump sum 

at present and the fairness to the minor children with respect to a 

potential substantial reduction of the child support Order during 

their minority.

TCO at 27 (emphasis added).

After review, we find no error in the trial court’s analysis for its chosen 

course of action. While Mother seeks to avoid another remand and have this 

Court mold the child support order to have Father reimburse her, we cannot 

conclude that the trial court abused its discretion in merely following the 

proper procedure as laid out in Rule 1910.19, which calls for further 

proceedings where either party objects to the proposed action for addressing 

overpayments. That is particularly needed here where, as the trial court aptly 

recognizes, there is such a sizable credit that the hearing officer should receive 

evidence of Father’s ability to pay such a large amount.
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We, thus, find that the trial court did not err in declining to address the 

overpayment issue. Accordingly, on remand, both the health insurance and 

the overpayments should be addressed.

Order reversed in part and affirmed in part. Case remanded. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/10/2022