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In Ballinger, the court construed Public Act No. 03-258, which requires the court to establish a support order for an incarcerated or institutionalized obligor based upon the obligor's actual income without applying any deviation. The court concluded that Public Act No. 03-258 applies prospectively only.
Summary of this case from Lively v. BarnabyOpinion
No. FA97-0541718
April 7, 2004
MEMORANDUM OF DECISION
The contested issue in this otherwise routine support case is the calculation of the arrearage for support due prior to the support petition. The court must determine whether provisions of the recently enacted Public Act No. 03-258, which purport to limit liability for child support for obligors incarcerated as the result of criminal convictions, apply retroactively to arrearages which accrue prior to the effective date of the statute. For the reasons hereinafter explained, the court holds that the statute does not apply retroactively.
Cornelius Wingate, Jr. was born in Brooklyn, New York on October 18, 1996, to the plaintiff mother Theodora Ballinger. Subsequently, on March 25, 1997, The defendant signed an acknowledgment of paternity. This document together with the mother's affirmation and the required advisement of rights and information form, were filed with the Superior Court, as the law then required. The filing was the genesis of the present case. It is noteworthy that at the time he executed the acknowledgment the defendant stated his residence as Corrigan Correctional Institution. No further legal action was undertaken until the State of Connecticut filed this support petition in July 2003.
The plaintiff mother is now known as Theodora Grandy.
Both parties appeared on the initial court date, September 12. The defendant was unemployed, and the court, pursuant to General Statutes § 46b-172(c) ordered him to undertake a diligent job search. The defendant complied with that order, returning to court on November 7 with nearly full-time employment. After an evidentiary hearing support orders were entered in accordance with child support guidelines computations based on the actual income of both parties without deviation. The defendant was ordered to pay $62.80 per week plus $7.20 per week on arrearages and orders were rendered regarding medical insurance and unreimbursed medical and dental expenses.
General Statutes § 46b-172(c) provides, in relevant part: "Such court or family support magistrate, in IV-D cases, shall also have the authority to order the acknowledged father who is subject to a plan for reimbursement of past-due support and is not incapacitated, to participate in work activities which may include, but shall not be limited to, job search, training, work experience and participation in the job training and retraining program established by the Labor commissioner pursuant to [General Statutes § 31-3t]." This authority is reiterated in nearly identical language in General Statutes § 46b-231(m)(2).
The amount of arrearage for past due support was disputed. The defendant had held a number of previous jobs, some of them off the books, interspersed with periods of incarceration. In order to protect the independent financial interest of the child, the court appointed Attorney Robert W. Clark as guardian ad litem and counsel. The defendant was instructed to commence paying his support order, and the case was continued for further evidence as well as legal arguments on the arrearage issue.
The final hearing was held on February 6, 2004. From the testimony and documentary evidence at that hearing the court finds the following additional facts: When Cornelius, Jr. was born, the plaintiff and child resided in New York while the defendant lived locally. The defendant sent periodic $150.00 payments to help support his child. In January 1997, the plaintiff moved to Connecticut and the parties, although not married, lived together as an intact family.
At the end of January 1997, the defendant commenced serving time in the corrections system for drug-related criminal charges. While in the correctional facility Mr. Wingate performed prison jobs and was paid $5.25 per week. (Transcript pp. 38, 53.) The plaintiff decided to "move on with her life" and terminated their relationship. The plaintiff began receiving Temporary Family Assistance for the child in February 1997 and continued to do so until March 31, 2002, when she discontinued. The State of Connecticut paid a total of $31,875 accrued maintenance for the child.
The defendant completed his sentence and was discharged on January 24, 2000. He obtained a job at Farina's. He reported to the Department of Social Services investigator that he was earning $5.00 per hour at the time. Later in his testimony he described this as follows: "I was only temp, like on probation. So I was making like five, six, seven." (Transcript p. 26.) He later claimed he was earning minimum wage, which the Department of Social Services investigator testified was $6.15 per hour at the time. Subsequently Mr. Wingate was reincarcerated for violation of probation and was in the corrections system from June 15, 2001, until September 16, 2001. Upon release he was confined to his residence with an ankle bracelet for an additional three months. During that period of time he was not employed, although he claims he was "going to school." He then moved to Reno, Nevada, where he worked for a cleaning business owned by the plaintiff's brother's girlfriend's father. (Transcript p. 30.) He was paid $200 per week under the table for this work. He returned to Connecticut in a short time, obtaining employment at Ruby Tuesday Restaurant, earning $8.50 per hour.
He then moved to his present job at McDonald's. There is substantial evidence relating to his earnings at that job. At the previous hearing wherein the current support order was set at $62.80 per week, the court had before it the sworn financial affidavits of both parties, the employer's income disclosure statement solicited by the Department of Social Services, and several actual pay stubs provided by the defendant. The full guidelines computation which was adopted by the court appears in the court file.
I
The original acknowledgment of paternity for Cornelius, Jr., was filed with this court under the above-captioned docket number in 1997. Thus the defendant is liable for child support three years next preceding the date of filing of the acknowledgment. Jones v. Hall, 1 S.M.D. 1 (1987). In the present case this would extend liability back to the birth of the child. However, it is uncontroverted that the parties were an intact family until January 31, 1997. The child resided in the same family household. When the defendant was away, he worked and regularly provided money to support the household. There was no neglect or refusal to support the child. Hence there is no support arrearage prior to that date.
The acknowledgment in this case was filed prior to amendments to the acknowledgment statute in 1997 and 1999, particularly Public Act No. 99-193 which deleted the requirement of filing the acknowledgment with the court. For historical perspective on the recent developments in reach back period, see Miller v. Kirshner, 225 Conn. 185, 203, 621 A.2d 1326 (1993); Procter v. Culver, 17 S.M.D. (2003); Perez v. Vazquez, 16 S.M.D. 2002 Ct. Sup. 5046 (2002).
It is clear from the testimony of both parties that the family relationship was severed on February 1, 1997, when the defendant began serving his prison term. Accordingly, that date commences the period of liability for past due support. Before considering any arguments for deviation, this court is mandated to determine the presumptive amount of child support due under the child support guidelines based on actual income. Based on the best evidence of the parties' incomes over the periods of time in question and then calculating presumptive child support based on the child support guidelines worksheet, the following table indicates the calculation of the total presumptive support arrears:
Dates P's P's D's D's Guidelines # Total Gross Net Gross Net Weeks 2/1/97-1/24/00 TFA TFA $ 5.25 $ 5.25 $ 0.525 156 $ 81.90 1/25/00-6/14/01 TFA TFA $200.00 $200.00 $41.00 73 $2,993.00 6/15/01-9/16/01 TFA TFA $ 5.25 $ 5.25 $ 0.525 13 $ 6.83 9/17/01-3/31/02 TFA TFA $246.00 $209.00 $46.00 28 $1,288.00 4/1/02-9/28/03 $300.00 $212.00 $330.00 $276.00 $66.00 77 $5,082.00 9/28/03-11/07/3 $300.00 $194.20 $302.86 $264.23 $62.80 6 $ 376.80 _________ TOTAL $9,828.53 The foregoing computation would yield a total of $4,369.73 of the total as assigned to the State during the period during which Temporary Family Assistance [TFA] was granted on behalf of the child. The remainder, $5,458.80 is owed to the plaintiff as the custodial parent.II
The child's attorney and guardian ad litem argue that with reference to the arrearage, the court should deviate upward based on a higher earning capacity of the defendant. The guardian argues this notwithstanding the provisions of Public Act No. 03-258 which mandates that child support for persons incarcerated must be computed based on actual income without deviation. The guardian does not challenge the validity of the statute. Rather, he argues that the provisions relating to incarcerated obligors must not be applied retroactively. He argues that the restriction on the discretion of the court to deviate is in derogation of the prior law and prejudicial to his client. In the absence of specific statutory language to the contrary, the statute should be construed as applying prospectively only from October 1, 2003, which was the effective date of the act.
Public Act No. 03-258 § 4 provides: "Notwithstanding any provisions of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income in accordance with the child support guidelines established pursuant to section 46b-215a of the general statutes."
The Assistant Attorney General agrees with the child's position. In final arguments, he stated: "I think that a language not being in the statute, I think that's conspicuous in its absence, your Honor. And I think the statute could've very easily been written to say that it's retroactive . . . They could've put that in the statute. And its absence suggests to me that maybe they didn't want it to go retroactive." (Transcript p. 44.)
The child's attorney as well as the plaintiff and the State rely on provisions of the child support guidelines allowing for a deviation based on earning capacity and a significant body of case law both in Connecticut and nationwide which hold that a person who commits a crime and is incarcerated after conviction should not be relieved of his child support obligation. The legislature has now clearly overridden both the courts and the child support guidelines commission by prohibiting deviations in the case of an incarcerated obligor. Before determining the issue of whether or not the public act applies retrospectively, it may be useful to review the development of the law in this State prior to the passage of the statute.
Connecticut law is clear that that a court may consider a party's earning capacity rather than actual income in computing a support order. The child support guidelines provide for deviation where the court finds "[o]ther financial resources available to a parent." A parent's earning capacity is specifically included in this subsection. Regs., Conn. State Agencies § 46b-215a-3-(b)(1)(B). Utilization of earning capacity is warranted by a self-imposed reduction in income combined with a failure by the obligor to utilize his earning capacity. Johnson v. Johnson, 185 Conn. 573, 576, 441 A.2d 578 (1981); Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980); Siracusa v. Siracusa, 30 Conn. App. 560, 566, 621 A.2d 309 (1993); Carey v. Carey, 29 Conn. App. 436, 440, 615 A.2d 516 (1992); Richard v. Richard, 23 Conn. App. 58, 63, 579 A.2d 110 (1990); Hart v. Hart, 19 Conn. App. 91, 94, 561 A.2d 151, cert denied, 212 Conn. 813, 565 A.2d 535 (1989); Hollings v. Milde, 38 Conn. Sup. 500, 452 A.2d 314 (1982); Bonadio v. Bonadio, Superior Court, judicial district of Danbury, Docket No. FA99-0337168 (Pickard, J., March 14, 2001); Fredo v. August, 13 S.M.D. 83, 87 (1999); Moffit v. Moffit, 12 S.M.D. 41, 42 (1998); Danford v. Symonds, 12 S.M.D. 32, 36 (1998); Murray v. Stone, 11 S.M.D. 149, 152 (1997), Brown v. Brown, 11 S.M.D. 140, 147 (1997); Englemann v. Englemann, 10 S.M.D. 90, 147 (1997); Henja v. Brown, 10 S.M.D. 42, 147 (1996); Kimery v. Kimery, 9 S.M.D. 54, 57 (1995); Jodoin v. Jodoin, 9 S.M.D. 7, 8 (1995); Hay v. Hay, 8 S.M.D. 51, 54 (1994); Campbell v. Scott, 7 S.M.D. 8, 12, 8 CSCR 507, 11 Conn. Fam. L.J. 71 (1993); Bardsley v. Bardsley, 6 S.M.D. 112, 116 (1992); Ouellette v. Ouellette, 6 S.M.D. 83, 85 (1992).
However, until 1997, Connecticut courts were split on the question of applying an earning capacity deviation to extract child support from a person imprisoned following conviction of a crime. Several cases held that notwithstanding a prior earning capacity, the support obligation of an incarcerated obligor would be suspended during the period of incarceration. Yrayta v. Bridgeforth sub nom. Commissioner of Human Resources v. Bridgeforth, 42 Conn. Sup. 126, 129, 604 A.2d 836, 6 Conn. L. Rtpr. 17 (Burns, J. Feb. 11, 1992) (reversing decision of the Family Support Magistrate ordering child support from an incarcerated obligor); Parker v. Parker, Superior Court judicial district of New London at Norwich, Docket No. 70489 (Mihalakos, J., Dec. 8, 1991) (same); Laubenheimer v. Laubenheimer, 10 S.M.D. 55 (Lifshitz, F.S.M., May 16, 1996, approved with modification, Teller, J.); Gueits v. Correa, 8 S.M.D. 77 (1994).
Although neither Family Support Magistrate Hutchinson's trial court decision nor the appeal were reported at the time, a transcript of Magistrate Hutchinson's ruling from the bench, the appeal petition, and Judge Mihalakos' hand-written reversal are appended to Family Support Magistrate Sullivan's decision in Fleming v. Raiford and appear at 10 S.M.D. 96, et seq.
Other courts deemed commission of a crime to be a volitional act justifying imposing a child support obligation based on prior earning capacity. Deal v. Deal, Superior Court, judicial district of Middlesex at Middletown, Docket No. 73317 (Gordon, J., Jan. 2, 1996); O'Connell v. O'Connell, 7 Conn.L.Rptr. 447, 7 CSCR 1175 (Axelrod, J. May 14, 1992); Moore v. Moore, 10 S.M.D. 197 (Trombley, F.S.M., Oct. 3, 1996); Fleming v. Raiford, 10 S.M.D. 80 (Sullivan, F.S.M., June 20, 1996); Collier v. Jennings, 1 S.M.D. 92, 3 CSCR 204 (Lifshitz, F.S.M., Dec. 30, 1987).
In 1997 the Superior Court decision Charette v. Charette, 19 Conn.L.Rptr. 187, 3 Conn. Ops. 579 (Zarella, J., 1997) became the seminal case on the issue of incarcerated child support obligors. The court found that "its failure to order any support would work an injustice on the plaintiff not the defendant. The plaintiff will be forced to shoulder the entire burden of the cost of the child's upbringing. Funds that she could otherwise set aside for other purposes such as college education . . . will be diverted to pay for the defendant's share of the cost of rearing their child. In balancing the equities the court believes that an order of support which may not be reimbursed until sometime in the future — even after the child reaches majority — is preferable than no order at all." Id., 19 Conn.L.Rptr. 189; 3 Conn. Ops. 581.
The court applied the law of self-imposed reduction in earning capacity to the circumstances of an obligor incarcerated after conviction of criminal activity. "The court finds that the decrease in the defendant's income has been occasioned by the defendant's own fault . . . His conduct in committing multiple assaults and burglary resulting in his arrest and conviction is inexcusable conduct. The defendant knew or should have known that his intentional acts would result in his incarceration and loss of income . . ." (Citation omitted.) Id., 19 Conn.L.Rptr. 190-91; 3 Conn. Ops. 582.
Subsequently all reported decisions in Connecticut on the issue have been consistent with Charette and have abandoned Bridgeforth and its progeny. Chenard v. Chenard, Superior Court, judicial district of Waterbury, Docket No. FA00-0161212 (Berdon, J.T.R., Nov. 27, 2002); Forman v. Forman, 29 Conn. L. Rev. 394 (Robaina, J., March 13, 2001); Fox v. Fox, 16 S.M.D. 32 Conn.L.Rptr. 171 (Colella, F.S.M., May 3, 2002); Shepaum v. Hernandez, 14 S.M.D. 374 (Bentivegna, F.S.M., Nov. 20, 2000); Shipman v. Roberts, 15 S.M.D. (2001); Suarez v. Carmona, 14 S.M.D. 414 (Bentivegna, F.S.M., Nov. 28, 2000); McBride v. Singleton, 13 S.M.D. 267 (Lifshitz, F.S.M., Dec. 25, 1999); Morton v. Morton, Superior Court, judicial district of Tolland at Rockville, Docket No. 67544 (Zarella, J., April 7, 1999); Graham v. Graham, 12 S.M.D. 172 (Nov. 19, 1998, Sosnoff, F.S.M.), Crouse v. Crouse, 21 Conn.L.Rptr. 390 (Solomon, J., 1998); Carrero v. Gonzalez, 11 S.M.D. 177 (Lifshitz, F.S.M., August 3, 1997); Scapin v. Scapin, 11 S.M.D. 171, 20 Conn. L. Rptr. 348, 3 Conn. Ops. 1039 (Lifshitz, F.S.M., 1997).
It is also noteworthy that significant segments of the law upon which Bridgeforth is based are no longer valid. In fact, four of the eight out-of-state cases cited in are no longer prevailing law in their respective states. The reviewing court in Bridgeforth relied heavily on Foster v. Foster, 99 App.Div.2d 284, 471 N.Y.S.2d 867 (1984) and Matter of Marriage of Edmonds, 53 Or. App. 539, 633 P.2d 4, 5 (1981) in deciding that "any obligation for support or for arrearage is suspended nunc pro tunc from the date of incarceration to the date of the defendant's release . . ." Yrayta v. Bridgeforth, sub nom. Commissioner of Human Resources v. Bridgeforth, supra, 42 Conn. Sup. 129. Foster v. Foster no longer appears to be controlling law in New York, although it has not been expressly overruled. In three more recent decisions, Knights v. Knights, 71 N.Y.2d 865, 522 N.E.2d 1045, 527 N.Y.S.2d 748 (1988), Frasca v. Frasca, 213 App.Div.2d 589, 624 N.Y.S.2d 259 (1995), and Romanous v. Romanous, 181 App.Div.2d 872, 581 N.Y.S.2d 410 (1992) appellate level New York courts have ruled that an obligor's incarceration is a self-created hardship and that his or her child support obligation should not he suspended during incarceration. Furthermore, the then leading Oregon case Matter of Marriage of Edmonds, 53 Or. App. 539, 633 P.2d 4, 5 (1981), was overruled by Matter of Marriage of Willis, 109 Or. App. 584, 820 P.2d 858 (1991), which in turn was reversed on appeal. Matter of Marriage of Willis, 314 Or. 566, 840 P.2d 697 (1992).
The child support obligation of a person incarcerated after a criminal conviction has divided courts throughout the country. F. Wozniak, Annot., "Loss of Income Due to Incarceration as Affecting Child Support Obligation" 27 A.L.R.5th 540-92 (1995), contains a thorough and useful analysis and listing of the case law as it then existed. An updating article, K.R. Cavanaugh and D. Pollack, "Child Support Obligations of Incarcerated Parents," 7 Cornell J.L. Pub.Pol'y 531 (1998), concludes that there is no cohesive policy on the issue and argues that "when balancing the rights of convicted criminals against children who require support regardless of parental circumstances, the welfare of children must take precedence." Id., 533. The article includes a perceptive analysis of many cases from around the country including cases subsequent to the publication of the Wozniak article. It is emblematic of the volatility of this issue, however, that courts and states continue to switch sides on the issue.
A thorough analysis of the issue was conducted by the Kansas Supreme Court in In re Marriage of Thurmond, 265 Kan. 715, 962 P.2d 1064 (1998). In considering sister state cases, the court organized them into three categories: those where incarceration of the obligor is held to be (1) no justification, (2) complete justification or (3) one factor to consider. After analysis of cases in each category, the court adopted the "no justification rule" for Kansas. The court concluded that as a matter of law "incarceration alone is not a change of circumstances which can justify suspension or modification of the child support obligation." Id., 265 Kan. 730, 962 P.2d 1073 (1998).
The following jurisdictions generally deny relief to the incarcerated obligor following what the Thurman court calls the "no justification" rule, or require some continued child support payments: Arkansas, Reid v. Reid, 57 Ark.App. 289, 944 S.W.2d 559 (1997); Delaware, Division of Child Support Enforcement v. Barrows, 570 A.2d 1180 (Del. 1990); Georgia, Staffon v. Staffon, 277 Ga. 179, 587 S.E.2d 630 (2003); Indiana, Ross v. Ross, 581 N.E.2d 982 (Ind.App. 1991); Davis v. Vance, 574 N.E.2d 330 (Ind.App. 1991); Kansas, In re Marriage of Thurmond, 265 Kan. 715, 962 P.2d 1064 (1998); Kentucky, Commonwealth v. Marshall, 15 S.W.3d 396 (Ky.App. 2000); Redmon v. Redmon, 823 S.W.2d 463 (Ky.App. 1992); Louisiana, State v. Nelson, 587 So.2d 176 (La.App. 1991); Alexander v. Alexander, 417 So.2d 92 (La.App. 1982); Maine, Hebert v. Hebert, 475 A.2d 422 (Me. 1984); Montana, Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020, 1023 (1993); Nebraska, State on behalf of Longnecker v. Longnecker, 11 Neb. App. 773, 660 N.W.2d 544 (2003); Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985); New Hampshire, Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983); New York, Matter Of Winn v. Baker, 2 A.D.3d 1169, 768 N.Y.S.2d 708 (2003); Furman v. Barnes, 293 App.Div.2d 781, 739 N.Y.S.2d 655 (2002); Knights v. Knights, 71 N.Y.2d 865, 522 N.E.2d 1045, 527 N.Y.S.2d 748 (1988); Frasca v. Frasca, 213 App.Div.2d 589, 624 N.Y.S.2d 259 (1995); Romanous v. Romanous, 81 App.Div.2d 872, 581 N.Y.S.2d 410 (1992); New Mexico, Thomasson v. Johnson, 120 N.M. 512, 903 P.2d 254 (1995); North Dakota, Ramsey County Social Service Board v. Kamara, 2002 ND 193, 653 N.W.2d 693 (2002); Koch v. Williams, 456 N.W.2d 299 (N.D. 1990); Oklahoma, Jones v. Baggett, 1999 OK 68, 990 P.2d 235, 245 (1999); Pennsylvania, Yerkes v. Yerkes, 573 Pa. 294, 824 A.2d 1169 (2003); Texas, Reyes v. Reyes, 946 S.W.2d 627 (Tex.App.-Waco 1997); Utah, Procter v. Procter, 773 P.2d 1389 (Utah App. 1989); Virginia, Layman v. Layman, 25 Va. App. 365, 488 S.E.2d 658 (1997); Wisconsin, Rottscheit v. Dumler, 262 Wis.2d 292, 664 N.W.2d 525 (2003); Modrow v. Modrow, 247 Wis.2d 889, 634 N.W.2d 852 (2001); Wyoming, Glenn v. Glenn, 848 P.2d 819 (Wyo. 1993).
Where the trial court in a divorce decree established a $200 per week support order for four remaining minor children where the obligor was incarcerated after he was convicted of sexually assaulting his 16-year-old daughter, held "no abuse of discretion." Hebert v. Hebert, 475 A.2d 422 (Me. 1984).
Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985) is often cited as a leading case for the "no justification" role denying relief to an incarcerated obligor. However, changes in the Nebraska Child Support Guidelines providing for a minimum support order of $50 per month, were held to preclude or severely restrict the ability to exceed that amount based on earning capacity. "[T]here must be some evidence that the parent is capable of realizing such capacity through reasonable effort." State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000). This appeared to shift Nebraska from the "no justification" rule to a "complete justification" practical result. Now, the Longnecker case has in turn limited Porter to apply only to establishment of orders while the obligor is incarcerated but applies Ohler to modifications.
Yerkes overruled Leasure v. Leasure, 378 Pa.Super. 613, 549 A.2d 225 (1988), thereby shifting Pennsylvania from a "complete justification" to a "no justification" jurisdiction.
Texas has codified that where evidence is insufficient to establish the obligor's resources, there is a presumption "that the party has wages or salary equal to the federal minimum wage for a 40-hour week . . ." Tex. Fam. Code Ann. § 154.068Fam. (Vernon 1996).
Although the Modrow court holds "that a party's incarceration is a valid factor for a family court to consider" when determining child support, which would suggest placing Wisconsin in the "one factor" column, the result in the case, affirming the trial court's earning capacity deviation to impose a $100 per week support order convinces this court that the practical effect is a "no justification" result. Rottscheit v. CT Page 6155 Dumler approves the reasoning of Modrow, again resulting in a practical "no justification" result. Prior case law in Wisconsin yielded opposing results: contrast Parker v. Parker, 152 Wis.2d 1, 447 N.W.2d 64 (1989), with Voecks v. Voecks, 171 Wis.2d 184, 491 N.W.2d 107 (1992). Rottscheit v. Dumler and Modrow did not reverse either of those cases, leaving Wisconsin with an apparent "no justification" position while leaving substantial discretion in the trial court.
The following jurisdictions follow the "complete justification" rule, relieving an incarcerated obligor of all or most of his support obligation. Arizona, State of Arizona ex rel. Department of Economic Security v. McEvoy, 191 Ariz. 350, 354, 955 P.2d 988 (App. 1998); State of Arizona ex rel. Department of Economic Security v. Ayala, 185 Ariz. 314, 317, 916 P.2d 504 (App. 1996); California, In Re The Marriage Of Smith, 90 Cal.App.4th 74, 108 Cal.Rptr.2d 537 (2001); State of Oregon v. Vargas, 70 Cal.App.4th 1128, 83 Cal.Rptr.2d 229 (1999); District of Columbia, Lewis v. Lewis, 637 A.2d 70 (D.C.Ct.App. 1994); Idaho, Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (1988); Illinois, People ex rel. Meyer v. Nein, 209 Ill. App.3d 1087, 154 Ill. Dec. 436, 568 N.E.2d 431 (1991); Maryland, Wills v. Jones, 340 Md. 480, 667 A.2d 331 (1995); Michigan, Pierce v. Pierce, 162 Mich. App. 367, 412 N.W.2d 291 (1987); Minnesota, Franzen v. Borders, 521 N.W.2d 626 (Minn.App. 1994); Kuronen v. Kuronen, 499 N.W.2d 51 (Minn.App. 1993); Johnson v. O'Neill, 461 N.W.2d 507 (Minn.App. 1990); Oregon, In re Marriage of Willis Willis, 840 P.2d 697 (Or. 1992); Wisconsin, Voecks v. Voecks, 491 N.W.2d 107 (Wis.Ct.App. 1992); Washington State, Matter of Marriage of Blickenstaff, 71 Wash.App. 489, 859 P.2d 646 (1993).
Although Arizona has a statutory provision similar to Texas which allows the court to attribute income of at least minimum wage to an obligor, Ariz. Rev. Stat. Ann. § 25-320(I), its courts have determined that the support order should be based on the obligor's "actual earning capacity while imprisoned . . . including the opportunity for prison income . . . State of Arizona ex rel. Department of Economic Security v. McEvoy, 191 Ariz. 350, 354, 955 P.2d 988 (App. 1998); State of Arizona ex rel. Department of Economic Security v. Ayala, 185 Ariz. 314, 317, 916 P.2d 504 (App. 1996). Since this interpretation would seem to base the child support order entirely on facts determined by the obligor's imprisoned status, we list Arizona as a "complete justification" state. Other commentators interpret the Ayala case as making Arizona a "no justification" jurisdiction. See Yerkes v. Yerkes, 573 Pa. 294, 299 n. 3, 824 A.2d 1169 (2003).
An earlier California case In re Marriage of Thompson, 96 Cal.App.3d 621, 158 Cal.Rptr. 160 (4th Dist., 1979) was mentioned in the A.L.R. annotation. Although the incarcerated obligor was ordered to pay child support, the order was based on the condition that the obligor would procure an allotment from the Navy. Accordingly, the case is not considered as on point in most compilations and was ignored by the court in State of Oregon v. Vargas.
This case reviewed and reversed the previously reported decision Wills v. Jones, 104 Md. App. 539, 650 A.2d 736 (1994). The Court of Appeals endorsed the intermediate Court of Special Appeals' determination that penal incarceration constitutes a material change of circumstances and that a prisoner is not "voluntarily impoverished." "If the circuit court, when calculating Jones's actual income, finds the resulting support obligation unjust or inappropriate, it may order support of $0 during Jones's incarceration." Wills v. Jones, 340 Md. 480, 498, 667 A.2d 331 (1995).
A number of additional jurisdictions yield inconsistent results, either because they follow the "one factor" rule whereby incarceration is considered one factor among facts which could result in either imposing or relieving the obligor of a support order, or because of internal conflicts within the State: Alabama, Alred v. Alred, 678 So.2d 1144 (Ala.Civ.App. 1996); Alaska, Bendixen v. Bendixen, 962 P.2d 170 (Alaska 1998); Colorado, In re Marriage of Hamilton, 857 P.2d 542 (Colo.App. 1993); Florida, Held v. Held, 617 So.2d 358 (Fla.App. 1993); Iowa, In re Walters, 575 N.W.2d 739, 743 (Iowa 1998); Mississipi, Avery v. Avery, 864 So.2d 1054 (Miss.App. 2004); Missouri, Oberg v. Oberg, 869 S.W.2d 235 (Mo.App.W.Dist. 1993); New Jersey, contrast Kuron v. Hamilton, 331 N.J. Super. 561, 752 A.2d 752 (App.Div. 2000) and Bergen County Board of Services v. Steinhauer, 294 N.J. Super. 507, 683 A.2d 856 (Chancery Div. 1996), with Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App.Div. 1999); Topham-Rapanotti v. Guilli, 289 N.J. Super. 626, 674 A.2d 650 (Chancery Div. 1996); Ohio, Richardson v. Ballard, 113 Ohio App.3d 552, 555, 681 N.E.2d 507 (1996); Oregon, Matter of Marriage of Willis, 314 Or. 566, 840 P.2d 697 (1992).
Bendixen held that an incarcerated obligor's child support should be at least the minimum obligation set by the state's child support guidelines. Alaska Civil Rule 0.3 provides that all obligor parents must pay a minimum child support order of at least $50 per month. This rule was incorporated into the state's child support guidelines. Alaska Admin. Code tit. 15 § 125.010. See also Smith v. Alaska Department of Revenue, 790 P.2d 1352 (Alaska 1990); Douglas v. Alaska Department of Revenue, 880 P.2d 113 (Alaska 1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1968, 131 L.Ed.2d 857 (1995).
Contrast Mascola v. Lusskin, 727 So.2d 328 (Fla.App. 4th Dist. 1999) and Waskin v. Waskin, 484 So.2d 1277 (Fla.App. 3rd Dist. 1986) rev. denied, 494 So.2d 1153 (Fla. 1986) with Pickett v. Pickett, 709 So.2d 182 (Fla.App. 5th Dist. 1998) and Waugh v. Waugh, 679 So.2d 1 (Fla.App. 2nd Dist. 1996).
Established case law in Iowa held that incarceration for criminal activity is considered voluntary for purposes of determining child support. In re Vetternack, 334 N.W.2d 761 (Iowa 1983); In re Phillips, 493 N.W.2d 872 (Iowa App. 1992). In re Walters, 575 N.W.2d 739, 743 (Iowa 1998) arose after the imprisoned obligor finished his sentence and was released. The court determined that his post-release earnings were substantially less than prior to his arrest. There was no evidence that as a convicted felon he could reasonably aspire to his previous income level. Thus he had proven a substantial permanent change in circumstances and was entitled to downward modification. The court, after stating that it was overruling Phillips, nonetheless concluded "based on our holding in Vetternack that [the obligor] should be held responsible for his support obligation during the period of his incarceration," but now qualified by "some examination of the incarcerated obligor's ability to pay." Although this result was apparently because the obligor had some assets when he commenced incarceration, the court stated that it was unclear how much of those assets had been used to pay down his support arrearage or how much had been dissipated. Nonetheless the court directed that the unpaid support accrue based on the original support order until the date of his release. Id.
The Steinhauer court relied on similar rationale to one of the apparent reasons for Public Act No. 03-258. The court noted that substantial federal funding for state support enforcement efforts is linked to the effectiveness of collection methods, which may be measured by relating the amount of child support collected compared to the total amount of arrears. Therefore, the court reasoned, the state has a substantial interest in avoiding difficult-to-collect support, which may adversely effect its collection ratio. Furthermore, the court suggests that relief need not be granted to an obligor incarcerated for a short term or in pre-trial detention. In other words, a petty misdemeanant or a pre-trial detainee clothed with the presumption of innocence remains obligated for child support, but one convicted of a major felony will be rewarded by cancellation of his child support obligation while transferring the financial burden to the custodial parent or the taxpayers of the state, all in the interests of making the state's compliance numbers look good.
Older Ohio case appear to be in conflict, contrast Peters v. Peters, 69 Ohio App.3d 275, 277, 590 N.E.2d 777 (1990), with Cole v. Cole, 70 Ohio App.3d 188, 590 N.E.2d 862 (1990). See also Brockmeier v. Brockmeier, 91 Ohio App.3d 68, 633 N.E.2d 584 (1993); Mannasmith v. Mannasmith, Marion App. No. 9-90-44, 1991 WL 217317 (unreported, July 26, 1991). More recently, Ohio may be shifting toward the "no justification" rule. In Richardson v. Ballard, 113 Ohio App.3d 52, 555, 681 N.E.2d 507 (1996), the court stated: "Children should not be made to suffer financial hardship because of their parent's wrongdoing." Declaring that it had "reconsidered the implications of our decision in Peters" the court "now agree[s] with the reasoning of other Ohio courts which have found incarceration due to criminal conduct to be voluntary." The court quoted favorably an unreported decision: "A parent cannot, by intentional conduct or mere irresponsibility, seek relief from this duty of support. Defendant, who by his own wrongful conduct placed himself in a position that he is no longer available for gainful employment, is not entitled to relief from his obligation to support his child. Incarceration was a foreseeable result of his criminal conduct and is thus deemed a voluntary act in and of itself." Id., 554, citing Williams v. Williams, Franklin App. No. 92AP-438, 1992 WL 246020 (unreported, Sept. 24, 1992).
In summary, Connecticut case law since 1997 moved Connecticut into the column of "no justification" jurisdictions. Public Act No. 03-258 legislatively overruled these cases and moved Connecticut into the "complete justification" column. Under the public act, during periods in which the defendant was incarcerated, the court is mandated to calculate child support "based on the obligor's present income in accordance with the child support guidelines . . ." Put another way, the public act precludes the court from entertaining any deviations for periods in which the obligor is incarcerated. Thus for those periods of time, the support arrearage for the periods of incarceration must be the same as the presumptive chargeable support for those time periods, as calculated in part I of this memorandum.
III
The defendant is no longer incarcerated. All of the periods of incarceration were completed prior to the October 1, 2003 effective date of the public act. The child's guardian ad litem argues that the public act does not apply to those periods of time, and that pursuant to the previous common law, the court should entertain deviations based on the obligor's earning capacity and the best interests of the child in establishing arrearages.
The provision limiting child support payments by incarcerated obligors is found in Section 4 of Public Act No. 03-258, which is entitled "An Act Concerning Voluntary Paternity Establishment and the John S. Martinez Fatherhood Initiative." House Bill No. 6518 was passed in the waning minutes of the last day of the 2003 regular session of the General Assembly, and upon signing by Governor Rowland, became the public act cited. Section 4 is specifically designated as "new" — that is, not a clarification or amendment of an existing provision of the General Statutes, but entirely new legislation. The act does not contain a specific effective date, which, by law, rendered the provision effective on October 1, 2003. General Statutes § 2-32.
General Statutes § 2-32 provides: " Effective date of public and special acts. All public acts, except when otherwise therein specified, shall take effect on the first day of October following the session of the General Assembly at which they are passed, and special acts, unless otherwise therein provided, from the date of their approval."
The guardian ad litem first points out that there is no explicit language in the statute that mandates retroactive application of its provisions. This is manifest from the plain language of the act. Moreover, General Statutes § 1-1(u) commands that the passage of an act "shall not affect any action then pending." This statute has been construed in the Family Support Magistrate Division to require continued application of the now repealed Uniform Reciprocal Enforcement of Support Act (URESA) to cases commenced under that act. Gagnon v. Gagnon, 13 S.M.D. 30, 35 (1999). This is significant here because the present action actually commenced on April 7, 1997 when the acknowledgment of paternity was filed with the court, as was then provided by law. The support petition was served on the defendant on July 24, 2003, and returned to the court four days later. Therefore, by any measure, this action was "pending" prior to the effective date of the public act. Logically, the only way that the passage of this act "shall not affect" the action is to apply prior law, which allowed the requested deviations.
General Statutes § 1-1(u) in its entirety states: "The passage or repeal of an act shall not affect any action then pending."
Furthermore, our courts have "consistently expressed reluctance to construe statutes as having retroactive application. East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092. A statute `affecting substantial changes in the law `is not to be given a retrospective effect unless it clearly and unequivocally appears that such was the legislative intent. State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 648, 68 A.2d 289; New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563." State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 222-23, 384 A.2d 378 (1978).
The Connecticut Supreme Court recently reiterated this principal in State v. Faraday, 268 Conn. 174, 196 (2004), when it opined: "This court as well as the United States Supreme Court recognizes a presumption against the retrospective application of statutes affecting substantive rights. See Immigration Naturalization Service v. St. Cyr, 533 U.S. 289, 315, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Johnson v. Commissioner of Correction, 258 Conn. 804, 820, 786 A.2d 1091 (2002); see also General Statutes § 55-3. `[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.' (Internal quotation marks omitted.) Immigration Naturalization Service v. St. Cyr, supra, 316."
"Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute . . . In order to determine the legislative intent we utilize well-established rules of statutory construction." (Citation omitted.) Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 517, 767 A.2d 692 (2001); Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 691, 755 A.2d 850 (2000). Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 718, 714 A.2d 1209 (1998). Indeed, our courts have uniformly interpreted General Statutes § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. Coley v. Camden Associates, Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). See also Nash v. Yap, 247 Conn. 638, 646 726 A.2d 92 (1999); Gil v. Courthouse One, 239 Conn. 676, 686, 687 A.2d 146 (1997); Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 483-85, 659 A.2d 1188 (1995); State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); Renz v. Allstate Ins. Co., 61 Conn. App. 336, 346, 763 A.2d 1072 (2001).
General Statutes § 55-3 states: "Limitation of effect of certain acts. No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall he construed to have a retrospective effect."
The act's provision regarding incarcerated obligors does not impose a "new obligation" on the defendant. In fact it provides him and those similarly situated with relief from what would otherwise be financial obligations. But a child support order doesn't only effect the obligor. Any child support case has at least two other essential parties: the custodial parent and the child. In this and many cases there is yet a third: the state of Connecticut. Our courts have recognized that every dollar of relief provided to the obligor shifts that dollar of support onto the shoulders of another person, be it the custodial parent or the child himself. Favrow v. Vargas, 222 Conn. 699, 717, 610 A.2d 1267 (1992). In this sense, the same provisions of Public Act No. 03-258 which protect an incarcerated obligor from the full impact of his child support obligation impose a new obligation on the custodial parent and the child.
This state has a financial interest because of Temporary Family Assistance (TFA) provided to the family. Any support arrearage assessed for periods of time during which TFA was provided are assigned to the state. It is noteworthy, however, that the custodial parent remains jointly and severally liable to the state for any uncollected TFA. General Statutes § 17b-93. Thus the preclusion of guideline deviations and consequent reduction in support arrearage for periods in which the family receives TFA shifts a substantial financial burden of repayment to the state from the defendant to the plaintiff.
The legislative history of this public act is sparse. It was passed in the waning moments of the legislative session with nary a comment. Committee hearings provide no indication that it was intended to apply retroactively. There is no explicit language within the statute to that effect. Since the preclusion of the right to seek upward deviation clearly prejudices the custodial parent, the child and the state of Connecticut by shifting the financial burden of supporting the child to them individually or in some combination, General Statutes § 55-3 applies. Moreover, the provisions are clearly substantive and not merely procedural.
Therefore, this court holds that the act applies prospectively only. The parties are not precluded from seeking a deviation from the presumptive guidelines amounts for arrearages accruing prior to October 1, 2003. The court will grant an upward deviation for the periods of time from February 1, 1997 through January 24, 2000 and from June 15, 2001 through September 16, 2001, based on Regs., Conn. State Agencies § 46b-215a-3-(b)(1)(B) (earning capacity) and § 46b-215a-3-(b)(6)(B) (best interests of the child).
The state suggests that the court determine the defendant's earning capacity based on the two jobs the defendant worked simultaneously in New York in 1996 while the family was still intact. Taken together, he earned over $500 per week and an appropriate support order would exceed $100 per week. However, there is nothing in the defendant's employment history since then that suggests any ability to approach that income level. Even the child's counsel characterized that demand as "drastic." The child's counsel suggests that his present income level is more reflective of his potential earnings had he not been incarcerated. The court agrees, and accordingly finds an arrearage to the state of Connecticut of $14,894.20 and to the plaintiff mother, $5,458.80 as of November 7, 2003.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate